# Durgesh Kumar Tiwari v. Chief General Manager State Bank of India and others

- **Citation:** (2003) 3 ILRA 636
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-20
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durgesh-kumar-tiwari-v-chief-general-manager-state-bank-of-india-and-others-40143
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226-
Compassionate appointment-philosophy
of appointment foundation of social
Justice & right to life-if must prevail over
technicalities 3 daughter and one son,
alongwith widow-amount of pension
http:\\allahabadhighcourt.nic.in
3 All] M/s C.L. Gupta & Sons and another V. State of U.P. and others
637
sum
of
Rs.450/-
meagre-No
due
consideration given by the authoritiesimpugned order rejecting the claims
cannot sustain.

Held: Para 7

Constitutional
philosophy
of
appointment on compassionate ground
has its foundation in social justice and
right to life. Having regard to this
philosophy the social justice must prevail
over any technical rule. In the instant
case,
the
deceased
employee
was
survived by three daughters and one
son. Two daughters were married off out
of whatever the family of the deceased
was recipient as terminal benefits. As
stated supra, the pension has now been
downsized to Rs.450/-. This pension is
too meagre to feed one son, one
unmarried daughter and the widow of
the deceased. By a rough reckoning, if
the family of three is made to sustain
itself on two square meal at the rate of
Rs.10/- per square meal per head, the
family bereft of other basic facilities
would need a sum of Rs.60/- per day and
by this reckoning, the need of the family
would aggregate to not less than a sum
of
Rs.
1800/-
for
fooding
alone
excepting other necessities of life. I am,
therefore, constrained to observe that
while rejecting the
request of
the
petitioner a second time pursuant to the
direction
of
this
Court,
the
Bank
authorities showed their insensitivity at
its crudest form and did not seem to act
like a model and an ideal employer.
Rather they seemed to be oblivious that
they
were
authorities
within
the
meaning of Article 12 of the Constitution
and were obligated to act in terms of
avowed objective of social and economic
justice as enshrined in the Constitution.
Case law discussed:
2002 (2) E.S.C. (Alld.), 1992 (2) ESC- Alld.
2003 (iii) UPLBEC-2055, 2000(iii) ESC-1618
(SC)

## Text

636 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

A counter affidavit has also been
filed by the respondent no.5.
6. Annexure-CA-1 to the same
contains
the
terms
and
conditions.
According to the Clause-12 of the same,
besides the tender rates the buyers would
be
charged
to
trade
tax
at
5%,
Departmental charge at 5% and Handling
charge at 2%. In paragraph 10 of the same
it is stated that the tender rate of the
petitioner was Rs.75.11 per kg whereas
that of the respondent no.5 was Rs.75.10
per kg. Thus the difference was every
small. In paragraph 12 of the same it is
stated that the petitioner has been granted
recognition certificate for the purchase of
raw material at concessional rate vide
Annexure-CA-3 to the affidavit. It is
alleged that it is not necessary that the
highest bidder should always be granted
the contract.

7. In paragraph 17 and 18 of the
counter affidavit it has been stated that if
the tender of the petitioner had been
accepted the State Government would
have suffered a substantial loss. As the
respondent no.5 will be paying Rs.
1,48,77677.05 to the State where the
petitioner would have paid only Rs.1,
41,71,097.50 paisa. Thus the respondent
no.5 will be paying about Rs.7 Lakhs
more to the State.

8. On the facts of the case we find
no merit in this petition. No doubt if the
rate exclusive of taxes and expenses is
seen the petitioner rate is slightly higher
than the rate of the respondent no.5. but if
the taxes and expenses are included vide
Annexure-CA-3 to the counter affidavit
then the rate of respondent no.5 is higher.
Thus it was the option of the authorities to
which of the two methods should be
adopted i.e. whether the rate exclusive of
taxes and expenses should be seen, or the
rate inclusive of taxes and expenses is to
be seen. When the authorities had adopted
the second alternative it is not for this
Court to sit in appeal over their decision.

9. It is well settled that in
administrative matters the Court should
not sit in appeal over the decisions of the
administrative authorities, but can only
interfere where there is total arbitrariness
or illegality vide Tata Cellular Vs.
Union of India, AIR 1996 SC 11. We see
nothing arbitrary or illegal in the method
adopted by the respondents. The selection
was done by a committee of senior
officials of the department and the
opinion of the Audit Section and Finance
Controller was also obtained. There is no
merit in this petition and it is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2003

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition no. 38847 of 2002

Durgesh Kumar Tiwari
...Petitioner
Versus
Chief General Manager State Bank of
India and others

 ...Respondents

Counsel for the Petitioner:
Sri B.D. Mandhyan
Sri Khurshad Alam

Counsel for the Respondents:
Sri A.K. Misra

Constitution
of
India,
Article
226-
Compassionate appointment-philosophy
of appointment foundation of social
Justice & right to life-if must prevail over
technicalities 3 daughter and one son,
alongwith widow-amount of pension
http:\\allahabadhighcourt.nic.in
3 All] M/s C.L. Gupta & Sons and another V. State of U.P. and others
637
sum
of
Rs.450/-
meagre-No
due
consideration given by the authoritiesimpugned order rejecting the claims
cannot sustain.

Held: Para 7

Constitutional
philosophy
of
appointment on compassionate ground
has its foundation in social justice and
right to life. Having regard to this
philosophy the social justice must prevail
over any technical rule. In the instant
case,
the
deceased
employee
was
survived by three daughters and one
son. Two daughters were married off out
of whatever the family of the deceased
was recipient as terminal benefits. As
stated supra, the pension has now been
downsized to Rs.450/-. This pension is
too meagre to feed one son, one
unmarried daughter and the widow of
the deceased. By a rough reckoning, if
the family of three is made to sustain
itself on two square meal at the rate of
Rs.10/- per square meal per head, the
family bereft of other basic facilities
would need a sum of Rs.60/- per day and
by this reckoning, the need of the family
would aggregate to not less than a sum
of
Rs.
1800/-
for
fooding
alone
excepting other necessities of life. I am,
therefore, constrained to observe that
while rejecting the
request of
the
petitioner a second time pursuant to the
direction
of
this
Court,
the
Bank
authorities showed their insensitivity at
its crudest form and did not seem to act
like a model and an ideal employer.
Rather they seemed to be oblivious that
they
were
authorities
within
the
meaning of Article 12 of the Constitution
and were obligated to act in terms of
avowed objective of social and economic
justice as enshrined in the Constitution.
Case law discussed:
2002 (2) E.S.C. (Alld.), 1992 (2) ESC- Alld.
2003 (iii) UPLBEC-2055, 2000(iii) ESC-1618
(SC)

(Delivered by Hon'ble S.N.Srivastava, J.)

1. Petitioner, the son of deceased
employee of State Bank of India has
invoked the extra-ordinary jurisdiction of
this Hon. Court under article 226 of the
Constitution
for
quashment
of
the
impugned
communication
dated
27.8.2002 and for a writ of mandamus for
appointment on compassionate ground.

2. Brief facts as are necessary for
adjudication of the disputation in the
present petition are that Sri Hans Nath
Tiwari a regular employee of State Bank
of India died in harness on 31.1.1997 and
at the time of his death he was serving as
clerk-cum-cashier in the State Bank of
India Belthera Road Branch Ballia. The
mother
of
the
petitioner
sought
compassionate appointment but the same
met with disapproval of the Bank
authorities
and
by
means
of
communication
dated
25.5.1999,
the
prayer was declined with cryptic order
that indigent circumstances do not exist.
Para 2 of the order enumerated resources
and the fund, which the family was
possessed of. The family was stated to be
recipient of the following amount in the
wake
of
the
death
of
the
sole
breadwinner: Provident fund- Rs. 1.96
lacs; gratuity-Rs. 1.08 lacs and lump sum
relief- Rs. 0.20 lacs paid under Staff
Mutual Welfare Scheme; family pension
Rs. 3,421/- and monthly relief- Rs.500/-
under staff Mutual Welfare Scheme,
moveable assets valued at Rs. 0.30 lacs
and immovable property valued at Rs.
3.00 lacs, agricultural land of 4 Bighas
yielding income of Rs. 5000/- per annum,
interest income of Rs. 3000/- per month
from investments and terminal dues claim
of life Insurance Corporation of India
Policy of Rs.50,000/- paid to the family
and invested in term deposit with the
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638 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Bank. The Bank authority seemed to have
assessed sufficiency of resources on the
basis of the above and converged to the
conclusion that the family did not suffer
from scantiness of resources. Aggrieved,
the petitioner instituted writ petition no.
30406 of 2000. This Court, while
allowing the writ petition issued direction
to the respondent authorities to reconsider
the application of the petitioner for
appointment on compassionate ground in
view of the observations embodied in the
said judgment dated 9.4.2002. Again, the
compassionate appointment was declined
to the petitioner and it is in this backdrop
that the petitioner has preferred the instant
petition.

3. In the instant petition, the
petitioner has repudiated the contention
stating that picture drawn by the Bank
Authorities as to the income has been
magnified beyond all proportions and it
has been spelt out that the lump sum
amount of Rs. 1.83 lacs has been
enumerated
by
the
Bank
without
discrediting the liability towards Bank
Loan. It was further submitted that the
family pension has suffered diminution
and has been rescheduled to Rs.450/- per
month on the basis of basic pay with
effect from 1.2.2002. On the other hand,
the learned counsel appearing for the
Bank strenuously repudiated the claim of
the petitioner to his claim to appointment
on compassionate ground. However, he
did not repudiate the factum of reduced
pension and other contentions pertaining
to income of the deceased family nor did
he state in justification of the figures
unfolded in its order by the Bank
authorities. He placed copious reliance on
various authorities both of this Court and
the Apex Court. The cases cited in
vindication of his hand are the decision in
Special Appeal No. 575 of 2000 delivered
by a Division Bench of this Court on
26.3.2003,
decision
rendered
by
a
Division Bench of Patna High Court dated
in C.W.J.C. No. 11781 of 2002, Single
Judge decision in W.P. No. 7222 of 2002
dated 19.12.2002, Single Judge decision
in Manoj Kumar Tiwari v. State of U.P.
and others reported in (2002) 2 E.S.C.
(All.), Division Bench decision of this
Court in Anand Kumar v. Union of India
reported in (2992) 2 ESC (Alld).

4. From a perusal of the record, it
would transpire that the family is leading
a very precarious existence. Before his
death, the deceased suffered a protracted
illness due to cancer and consequent
treatment which sapped the family of
whatever it had for purposes. It is stated
in para 4 of the writ petition that lump
sum amount of Rs. 1.83 lacs including all
retiral benefits and to the exclusion of
deduction
of
loan
amount
which
admittedly was sanctioned by the Bank
for treatment of the deceased and further
that the family was initially sanctioned
pension of Rs. 1267/- which was paid
upto 31.1.2002 and thereafter, it suffered
diminution and has been reduced to Rs.
450/-. The assertion has not been denied
by the respondent Bank in the counter
affidavit. In para 14 of the writ petition, it
is submitted that the land which has been
taken into consideration adding to the
source of income is not arable land nor
the same is yielding any income. The
averments in this para have not bee
denied. It would thus appear that the Bank
authorities have not scanned the entire
facts
and
circumstances
in
correct
perspective and stampeded into holding
that
there
existed
no
indigent
circumstances. It should not be lost sight
of the fact that the employer in the instant
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3 All] Durgesh Kumar Tiwari V. Chief General Manager, S.B.I. and others
639
case is a statutory body within the
meaning of Article 12 of the Constitution
and as such, it has an obligation to act in
terms of the avowed objective of social
and economic justice as engrafted in the
Constitution. As enunciated by the Apex
Court in Balbir Kaur and another v. Steel
Authority of India1 "the concept of social
justice is the yardstick to the justice
administration system or the legal justice
and ......and the greatest virtue of law is
in its adaptability and flexibility and thus
it would be otherwise an obligation for
the law courts also to apply the law
depending upon the situation since the
law is made for the society and whichever
is beneficial for the society, the endeavour
of the aw Court would be to administer
justice
having
due
regard
in
the
direction." It is in the context of the above
observation that the Court feels disposed
to screen the impugned order qua the
condition of life in the aftermath of the
death of sole bread earner. Upon regard
being had to the factual matrix unfolded
above, it would transpire that the Bank
authorities were swayed to converge to
the conclusion of sufficiency of resources
and funds collected from varied sources
without delving into its correctness, or
reliability. It has not been reckoned with
by the Bank authorities whether the
resources delineated in para 2 of the
impugned order were sufficient to keep
the pot of the family boiling and whether
the family would face resource crunch
after meeting the liabilities left behind by
the deceased employee. It brooks no
dispute upon comparison of the assertions
in the writ petition with the averments in
the counter affidavit that the family
received Rs. 1.83 lacs including all retiral
benefits to the exclusion of liabilities

1 (2000) 3 UPLBEC 2055
towards Bank's loan and that the pension
has since suffered diminution and stands
reduced to Rs. 450/- per month only. It is
also worthy of notice that two of the
sisters have already been married off and
the third sister has attained marriageable
age and therefore, the resources which the
family is possessed of cannot be adjudged
to be sufficient to keep the pot boiling. In
converging
to
the
sufficiency
of
resources, the Bank authorities have not
acted like a model and an ideal employer
having regard to the avowed objective of
social and economic justice as enshrined
in
the
Constitution
and
executive
imperviousness and zeal is more than
apparent on which wrecked the repeated
requests of the family for compassionate
appointment.

5. On behalf of the Bank authorities,
the learned counsel has cited series of
decisions. The first decision cited is a
decision rendered by a Division Bench of
this Court in Special Appeal no. 575 of
2000 on 26.3.2003. It was a case in which
family was receiving a pension of Rs.
6000/- per month and in this case the
learned Single Judge upon consideration
of the family resources and the pension
had held that the family could not be said
to be in distress. Be that as it may, it was
a decision rendered in the peculiar facts
and circumstances of that case and it
cannot be imported to be applied in the
facts and circumstances of the present
case. Yet another case cited by the learned
counsel is the order passed in Writ
Petition no. 7222 (S/S) of 2002 passed by
learned Single Judge on 19.12.2002. This
order does not contain any detailed
discussion and the learned Single Judge
converged to the conclusion that the
family was not in distress ostensibly on
the basis of income stated to be Rs.6231/-.
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640 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
This order stemmed from peculiar facts
and circumstances of that case and thus
cannot be called in aid in vindication of
the stand as propounded by the learned
counsel
appearing
for
the
Bank
Authorities. The third authority cited by
the learned counsel is a decision of Patna
High Court. In this decision rendered in
C.W.J.C. No. 11781 of 2002. It is again a
brief order in which any of the aspects as
discussed in the ex-cathedra decisions of
the Apex court has not been dwelt upon or
discussed at length. This decision too is
based on peculiar facts and circumstances
of the case and cannot be called in aid to
distract me from the view I am taking in
the matter. The fourth authority cited by
the learned Counsel is Manoj Kumar
Tiwari v. State of U.P. and others decided
by single Judge of this Court. It was a
matter in which the deceased employee
worked between 1961 to 1973 as Gram
Sewak and it was claimed that the family
of the deceased. On this ground, the
deceased family claimed compassionate
appointment. It was a decision on peculiar
facts and circumstances and does not
involve any of the aspects as delineated in
this petition. The last decision cited by the
learned counsel is Anand Kumar v. Union
of India and others passed in Writ Petition
No. 16616 of 2001 decided on 24.1.2002.
In this case learned Tribunal was satisfied
with the financial condition of the family
and the Division Bench merely upheld the
view taken by the Tribunal. This case too
is distinguishable.

6. In the earlier two decisions
particularly the decision in Smt. Kanti
Srivastava v. State Bank of India Nariman
Point Mumbai and others, I have taken a
consistent view having regard to the ratio
decidendi in Balbir Kaur and another v.
Steel Authority of India Ltd and others2
that feeling of security drops to zero on
the death of the bread earner and
insecurity thereafter reigns and further
that if some lump sum amount is made
available
with
a
compassionate
appointment, the grief stricken family
may find solace to the mental agony and
manage its affairs in the normal course of
events. In the instant case, as stated supra,
the family has been received a meagre
sum of Rs. 450/- since 1.2.2002 and
having regard to the liabilities left behind
by the deceased employee, the lump sum
amount of Rs.1.83 lacs and the pension of
Rs. 450/- being paid to the family since
1.2.2002 are too paltry to be adjudged as
sufficient to keep the pot boiling. The
authorities
have
not
given
due
consideration to the condition of the
family and by this reckoning, the
impugned order cannot be sustained and
is liable to be quashed.

7. Before parting, I would not
forbear from observing that Constitutional
philosophy
of
appointment
on
compassionate ground has its foundation
in social justice and right to life. Having
regard to this philosophy the social justice
must prevail over any technical rule. In
the instant case, the deceased employee
was survived by three daughters and one
son. Two daughters were married off out
of whatever the family of the deceased
was recipient as terminal benefits. As
stated supra, the pension has now been
downsized to Rs.450/-. This pension is
too meagre to feed one son, one
unmarried daughter and the widow of the
deceased. By a rough reckoning, if the
family of three is made to sustain itself on
two square meal at the rate of Rs.10/- per

2 2000 (3) ESC 1618 (SC)
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3 All] Durgesh Kumar Tiwari V. Chief General Manager, S.B.I. and others
641
square meal per head, the family bereft of
other basic facilities would need a sum of
Rs.60/- per day and by this reckoning, the
need of the family would aggregate to not
less than a sum of Rs. 1800/- for fooding
alone excepting other necessities of life. I
am, therefore, constrained to observe that
while rejecting the request of the
petitioner a second time pursuant to the
direction
of
this
Court,
the
Bank
authorities showed their insensitivity at its
crudest form and did not seem to act like
a model and an ideal employer. Rather
they seemed to be oblivious that they
were authorities within the meaning of
Article 12 of the Constitution and were
obligated to act in terms of avowed
objective of social and economic justice
as enshrined in the Constitution.

8. In the facts and circumstances
discussed above, the petition is allowed
and the impugned order is quashed and
the respondents are directed to offer
appointment to the petitioner having
regard to the financial condition in the
light of what has been discussed in the
present petition.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.4.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 44407 of 1992

Shiv Shanker Tiwari

...Petitioner
Versus
Director of Agriculture, U.P. and others

 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Upadhyaya

Counsel for the Respondents:
Sri N.B. Tiwari
S.C.

Constitution of India, Article 226-Service
law-disciplinary proceeding-initiated in
1967-Petitioner
placed
under
suspension-during
pendency
of
disciplinary Proceeding the petitionerretired from service in July, 2000-for
unreasonable
delay
the
authorities
themselves are responsible-held-for all
practical
purpose-the
delinquent
employee shall be treated in servicesuspension order quashed with 75%
past salary.

Held- Para 11

The
disciplinary
proceedings
have
illegally
been
delayed
by
the
respondents themselves and were not
concluded within reasonable time and
when the petitioner has already retried
from service in July, 2000 the entire
proceedings deserve to be quashed by
this
Court,
in
the
light
of
the
observations given in the Judgement of
N. Radhakishan (supra) and also in
Shatrughan (supra) with the further
direction to the respondents that the
petitioner
should
be
treated
in
continuous
service
for
all
practical
purposes and should be paid arrears of
75% salary of his past salary. The
petitioner
has
already
retired
from
service
on
31.07.2000
his
postretirement benefits is also directed to be
finalised.
Case law discussed:
AIR 1988 SC 1833
1998 (3) SCC 123
J.T. 1998 (6) SC-55

(Delivered by Hon'ble R.B. Misra, J.)

1 In this petition prayer has been
made for the writ of certiorari quashing
entire proceedings of enquiry initiated
against the petitioner in sequence to his
suspension and further prayer has been
made for direction of mandamus to
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