# Mritunjay Mishra v. Chief General Manager, State Bank of India and another

- **Citation:** (2005) 1 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-18
- **Case number:** Civil Misc. Writ Petition No. 52002 of 2002
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mritunjay-mishra-v-chief-general-manager-state-bank-of-india-and-another-40392
- **Pages:** 11

## Headnote

Dying in Harness Rules-Compassionate
appointment-request for, by eldest son
of deceased employee-Rejection by Bank
Authorities by cryptic order-ValidityIncome
of
family
of
deceased
not
correctly assessed by Bank authoritiesDeceased left behind five school going
children-Four daughters to be marriedliabilities not taken into account while
assessing
income-non
application
of
mind-Impugned order not sustainablebenefit
of
employment
by
way
of
compassionate appointment under Dying
in Harness Rules, held, should flow
liberally
unless
there
be
clinching
endorse demonstrate that family of
deceased had sufficient means to fall
back upon-Scheme for compassionate
appointment a beneficial legislationNationalized Bank an in stementality of
State, expected to behave as a model
employer-No
reasons
assigned
for
conclusion that fiscal condition of family
would enobbe family to meet crisesDecision by authorities held, selective
and not objective-Hence impugned order
quashed.

Held: Paras 11,12,13 & 14
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1All] Mritunjay Mishra V. Chief General Manager, State Bank of India and another
89
Upon
consideration
of
the
above
guidelines, it would crystallise that the
Bank has to examine the financial
condition of the family of the deceased
and only if it is satisfied that but for the
provisions of employment, the family will
not be able to meet the crisis that a job
is to be offered to the eligible member of
the family. As stated supra, the Bank has
added up the total of all amount received
in lump sum by the family of the
deceased employee and converged to
assessing monthly income without, at
the same time, regard being had to the
liabilities
and
obligations
to
be
discharged after the death of deceased
employee.
The
petitioner
clearly
disclosed that the family is survived by
five school going children the youngest
one being 7 years old and that during
ailment of the deceased employee, the
family
had
to
borrow
and
incur
expenditure to the extent of Rs.2.50 lac
which the Bank Authority did not include
while computing aggregate income of
the family. In my considered view, if the
Bank had considered the entire amount
received by the Family of the deceased
vis-à-vis the liabilities left behind by the
deceased employee, the amount which
may be distilled as income would be very
negligible and would not constitute
sufficient means. No reasons, as stated
supra,
have
been
recorded
and
subjective satisfaction recorded by the
Bank authorities has no grounding. The
Bank authorities have also not reckoned
with the aspect of liabilities of marriage
of the four daughters and also the aspect
of maintenance of family members the
youngest
being
7
years
old,
after
20.5.2006 when the pension would stand
reduced to a paltry sum of Rs.565/-. In
the circumstances, the impugned orders
cannot be sustained being one having
been
passed
sans
consideration
of
pivotal
aspects
bearing
on
the
sustenance
of the family
members.
According to own s

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
88
camp of N.S.S. is entitled to 10 weightage
marks while a candidate with service of
240 hours only is entitled to 5 weightage
marks. It is clear from the aforesaid
provisions that before any weightage can
be awarded by a candidate it is mandatory
that he must have completed at least 240
hours of service in N.S.S. The number of
marks may vary having regard to the
number of special camps attended by the
candidate but the requirement of 240
hours service is a condition precedent for
any weightage marks being awarded in all
the three categories. From the certificate
which has been enclosed by the petitioner
it is apparent that the petitioner has been
certified to have put in 120 hours of
service in Rashtriya Sewa Yojana (NSS).
In view of the aforesaid it is admitted
position that the petitioner has not put in
240 hours of service in NSS and therefore
she
does
not
fulfill
the
essential
qualifications for grant of any weightage
marks. Further the certificate which has
been enclosed by the petitioner along
with the application form has admittedly
been signed/issued by the Principal of the
institution and counter signed by the
Project Officer. Under the clause
providing for weightage marks there is a
specific endorsement that the certificate
must be issued by the University and
counter signed by the Vice Chancellor.
The certificate produced by the petitioner
does not satisfy the requirement of the
aforesaid clause also.

7. In view of the above there is no
illegality or infirmity in the action of the
University refusing admission to the
petitioner in B.Ed. course. The writ
petition is accordingly dismissed. No
order as to costs.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2004

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

Civil Misc. Writ Petition No. 52002 of 2002

Mritunjay Mishra

...Petitioner
Versus
Chief General Manager State Bank of
India and another
...Respondents

Counsel for the Petitioner:
Sri M.S. Khan

Counsel for the Respondents:
Sri Vipin Sinha

Dying in Harness Rules-Compassionate
appointment-request for, by eldest son
of deceased employee-Rejection by Bank
Authorities by cryptic order-ValidityIncome
of
family
of
deceased
not
correctly assessed by Bank authoritiesDeceased left behind five school going
children-Four daughters to be marriedliabilities not taken into account while
assessing
income-non
application
of
mind-Impugned order not sustainablebenefit
of
employment
by
way
of
compassionate appointment under Dying
in Harness Rules, held, should flow
liberally
unless
there
be
clinching
endorse demonstrate that family of
deceased had sufficient means to fall
back upon-Scheme for compassionate
appointment a beneficial legislationNationalized Bank an in stementality of
State, expected to behave as a model
employer-No
reasons
assigned
for
conclusion that fiscal condition of family
would enobbe family to meet crisesDecision by authorities held, selective
and not objective-Hence impugned order
quashed.

Held: Paras 11,12,13 & 14
http://www.allahabadhighcourt.nic.in
1All] Mritunjay Mishra V. Chief General Manager, State Bank of India and another
89
Upon
consideration
of
the
above
guidelines, it would crystallise that the
Bank has to examine the financial
condition of the family of the deceased
and only if it is satisfied that but for the
provisions of employment, the family will
not be able to meet the crisis that a job
is to be offered to the eligible member of
the family. As stated supra, the Bank has
added up the total of all amount received
in lump sum by the family of the
deceased employee and converged to
assessing monthly income without, at
the same time, regard being had to the
liabilities
and
obligations
to
be
discharged after the death of deceased
employee.
The
petitioner
clearly
disclosed that the family is survived by
five school going children the youngest
one being 7 years old and that during
ailment of the deceased employee, the
family
had
to
borrow
and
incur
expenditure to the extent of Rs.2.50 lac
which the Bank Authority did not include
while computing aggregate income of
the family. In my considered view, if the
Bank had considered the entire amount
received by the Family of the deceased
vis-à-vis the liabilities left behind by the
deceased employee, the amount which
may be distilled as income would be very
negligible and would not constitute
sufficient means. No reasons, as stated
supra,
have
been
recorded
and
subjective satisfaction recorded by the
Bank authorities has no grounding. The
Bank authorities have also not reckoned
with the aspect of liabilities of marriage
of the four daughters and also the aspect
of maintenance of family members the
youngest
being
7
years
old,
after
20.5.2006 when the pension would stand
reduced to a paltry sum of Rs.565/-. In
the circumstances, the impugned orders
cannot be sustained being one having
been
passed
sans
consideration
of
pivotal
aspects
bearing
on
the
sustenance
of the family
members.
According to own showing of the Bank,
the family had no immoveable property
or any source of income, which could be
said to be of permanent character and
perennial nature. The amount disclosed
in the impugned order is of dissipating
character inasmuch as the same cannot
be said to be perennial source of income.
The eldest daughter aged 19 years is
said to be receiving education in B.A and
by all reckoning, she can be said to be of
marriageable age and may be required to
be married off in a year or two. Even if it
be assumed that a cumulative amount of
Rs. 2.50 lacs may be required to be
incurred
in
the
marriage
of
one
daughter, a net amount of Rs. 10 lac is
required to be married off four daughters
and by this reckoning also, the income
on that count cannot be said to be
income of permanent character. Having
regard to the above calculation and
computation, it would appear that only
source of income for the family is by way
of pension and too for a period of five
years which by no stretch of imagination
can be said to be adequate or sufficient.
In
my
considered
view,
the
order
impugned here falls short of compliance
on the own showing of the Bank, with
the
guideline
(c)
as
delineated
in
Anenxure 8 to the writ petition.

In this view of the matter, I am of the
view that the income has not been
correctly assessed by the Bank and
therefore, impugned order cannot be
sustained. I would not forbear from
articulating that benefit of employment
by way of compassionate appointment
under dying in harness Rules should flow
liberally
unless
there
be
clinching
evidence to demonstrate that the family
of the deceased had sufficient means to
fall
back
upon.
The
scheme
for
appointment on compassionate ground is
a scheme in the nature of beneficial
legislation to those on whom the destiny
has inflicted the unkindest cut and it
would not be proper to inflict further cut
on the family bedeviled by misfortune.

I would also like to observe that it is a
sad commentary that the family of an
employee who has devoted his best
years in the service of Bank, has been
left in lurch without care and concern by
the employer as to how surviving school
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
90
going children would receive education
from scantiness of means. The employer,
in the instant case, is a Nationalized
Bank, an instrumentality of State and
therefore, it is expected to behave as a
model
employer
also
taking
into
consideration that right to education is a
right enshrined under Article 41 of the
Constitution of India and in case for
want of sufficient means, the right to
education of any of the children left
behind by the deceased is affected, it
would be seen to be infringing upon the
goals cherished in the Constitution of
India.

It would also appear from a perusal of
impugned
order
turning
down
the
request for compassionate appointment
that it is a one liner order with no
reasons assigned for conclusion that the
fiscal condition of the family was such
which could enable the family to meet
the crisis. Besides, it would appear that
the satisfaction arrived at is by all means
subjective and not objective inasmuch as
there is no indicia of analysis of reasons
warranting conclusion that the family
with the lump sum would be able to tide
over the crisis occasioned by the death
of the only earning member. In this
regard, it may be noticed that the basic
principle
of
Constitution
makes
it
imperative for administrative authorities
clothed
with
the
duty
to
decide
something on consideration of policy or
scheme, to act judicially in order to
guard against arbitrariness. It has been
reiterated in a number of decisions that
a clear application of mind must be
discernible in the order. Thus, it would
not
be
difficult
to
hold
that
the
satisfaction
is
subjective
and
not
objective.
Case law discussed:
JT 2004 (6) SC 418
JT 1994 (3) SC 525
JT1989 (3) SC 570
1991 Supp. (2) SCC 689
(1995) 6 SCC 476
JT 1998 (4) SC 155

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

1. Sri Uma Shanker Mishra, a
regular employee of state Bank of India,
Balia City Branch, having died in harness
on 19.5.2001, the widow represented the
matter to the Bank authorities for
compassionate appointment of her son,
namely, the petitioner on the ground that
the deceased was survived by two sons
and four unmarried daughters, all school
going and the family of the deceased was
ill-equipped to fend for itself. The
petitioner being the eldest son and also
being
equipped
with
necessary
qualifications of having passed his B.Sc
examination from V.B.S. Purvanchal
University Jaunpur, was put forth for
compassionate appointment by means of
representation
dated
25.5.2001.
The
representation travelled though haltingly
upto the end of respondent no.1 who was
then holding the office of Chief General
Manager, Local Headquarter Hazratganj
Lucknow
where
the
matter
was
considered
and
the
request
for
compassionate
appointment
was
ultimately turned down by a cryptic order
the substance of which is that considering
the cumulative/aggregate amount which
the family had received in the wake of the
death of deceased employee complete
with pension, the financial condition of
the family cannot be termed as penurious
and request/proposal for compassionate
appointment was accordingly rejected by
the competent authority. It is in the above
backdrop that the present petition has
been preferred for the relief of a writ of
certiorari for quashing the impugned
order dated 26.8.2002 and also for a writ
of mandamus directing the respondent
no.1 to offer appointment to the petitioner
under
dying
in
harness
Rules
on
compassionate grounds.
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1All] Mritunjay Mishra V. Chief General Manager, State Bank of India and another
91

2. The learned counsel appearing for
the petitioner took us through the
impugned order and canvassed that the
authorities concerned have not reckoned
with the liabilities left behind by the
deceased
employee
in
passing
the
impugned order and also that the
impugned order bristled with error in
computation of income of the family. He
further submitted that at the time of death,
the deceased employee was drawing an
aggregate salary of Rs.18072/- and after
his death, a meagre amount of Rs.3415/-
has been fixed as pension payable to the
family that too for a period upto
20.5.2006. He further submitted that the
amount sanctioned to the family as
pension is payable only for five years and
thereafter, it would stand slashed to a
paltry amount of Rs. 565/- only. The
learned counsel also drew attention of the
Court to the facet that the deceased is
survived by six children out of whom four
are school going unmarried daughters and
the youngest male child in the family is
Ashutosh aged about 7 years and that the
competent authority has not reckoned
with the aspect how the family would be
able to fend for itself after 20.5.2006. Per
contra, the learned counsel for the
respondents contended that the details
enumerated in the impugned order are
self-explanatory and reveal that family of
the deceased employee had received
enough
amount
which
constituted
sufficient means. According to the learned
counsel, the Bank has assessed the
cumulative income of deceased family
from all sources to the extent of Rs.
10,051.00 per month after taking into
reckoning each and every aspect, which
by no means could be said to be
insufficient or inadequate to keep the pot
of the family boiling.

3. The learned counsel for the
respondents laid much emphasis on a
recent decision of the Apex Court in
Punjab National Bank and others v.
Ashwini Kumar Taneja1 to prop up his
submissions and contended that a similar
question was involved and the Apex
Court discountenanced the view taken by
the Single Judge and thereafter by
Division Bench of the High Court. This
decision has been cited by the learned
counsel as a sheet anchor of his
arguments. I have been taken through this
decision. It would appear from a perusal
of the said decision that learned Single
Judge of High Court directed the Bank
accordingly holding that the receipt of
retiral benefit cannot be made a ground
for
rejecting
the
request
for
compassionate employment. The Division
Bench also endorsed the said decision of
the learned Single Judge. The Apex Court
held that financial condition of the family
is a factor to be considered in the matter
of employment on compassionate grounds
as provided in the scheme of the Bank.
There is no quarrel with the contention
that financial condition of the family has
to be reckoned with but the moot point is
whether the manner in which the Bank
has made assessment of the income of the
deceased family from all sources, could
be said to be justifiable, sound and valid
one.

4. The ratio that flows from the said
decision is that the retiral benefits
payable/paid to the family of the deceased
cannot be eschewed from consideration in
assessing the fiscal condition of the
family. The question now that survives
for consideration whether considering the
liabilities of the family, the income is

1 JT 2004 (6) SC 418
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
92
adequate and comes within the periphery
of the expression 'sufficient means' and
(2) whether the assessment of income by
the Bank was correctly made?

5. In connection with the first
question, I feel called to scan the
liabilities
surviving
the
deceased
employee. According to the learned
counsel for the petitioner, the deceased
employee was survived by six children
consisting of petitioner, the eldest son,
four daughters and thereafter one male
child aged about 7 years and his widow.
In para 11 to the writ petition, details of
children have been enumerated according
to which Km. Chandrakala Mishra is
studying in Intermediate standard, Km.
Shashikala Mishra is studying in High
School. Besides the above, the third
daughter namely, Km. Purnima aged
about 15 years, Km. Arti Mishra aged
about 13 years are also school going
receiving their education in respective
educational institutions. The youngest
child namely, Ashutosh aged about 7
years is also stated to be receiving
education. In the present set up, when
school/college education is a costlier
affair, it would be no exaggeration to say
that it would be a difficult task for the
widow of the deceased to meet the
expenses to be incurred on imparting
education to at least five college/school
going children besides amount being
spent on fooding and maintenance of the
entire
family.
The
learned
counsel
approximated expenditure at Rs. 800/- per
month, which may be incurred on a child
towards education including expenses on
the
count
of
purchase
of
books,
School/college dresses, and day-to-day
expenses besides transportation charges
etc. At a time when prices of each and
every item are rising high and there is
inflation
all
round,
a
cumulative
expenditure approximating to a sum of
Rs.4000/- per month cannot be said to be
abnormally high on the count of education
of at least five school/college going
children.

6. Yet another aspect which may be
considered is that at the time of his death,
the deceased employee was getting a
salary to the extent of 18,070/- per month
and in the aftermath of his death, there
would be a net depletion in the income of
the family to the extent of Rs.8000/- even
if the income as assessed by the Bank in
impugned order is posited to be correct.
From a perusal of Anenxure 7 to the writ
petition which is a letter addressed to the
widow of deceased employee by the Bank
dated 23.11.2001, it is revealed that the
pension payable to the deceased family
has been pegged at Rs. 3415/- + Rs.3063/-
as D.A. total Rs.6070/- which is payable
to the widow for the period between
20.5.2001 to 19.5.2006 and thereafter it is
further revealed, the pension would stand
reduced to a sum of Rs. 565/- per month.
Taking into reckoning the age of the
children, the youngest being 7 years old
and also reckoning with the facts that four
of the daughters still remain to be married
off, I am of the view that the total amount
assessed by the Bank as income of the
family has been over-stated and cannot,
by any stretch, be said to be sufficient to
sustain the family comprising seven
members.

7. In connection with the above, a
kindred question also comes in the
forefront for consideration as to what are
the objects underlying compassionate
appointment. This aspect need not be
stretched beyond a point inasmuch as this
question has received attention of the
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1All] Mritunjay Mishra V. Chief General Manager, State Bank of India and another
93
various High Courts as well as the Apex
Court
in
several
decisions.
The
quintessence
of
what
has
been
consistently
held
that
the
objects
underlying compassionate appointment is
to enable the family to get over sudden
financial
crisis.
In
Umesh
Kumar
Nagpal v. State of Haryana and others2,
it has been observed by the Apex Court
that the appointment on compassionate
ground
is
not
another
source
of
recruitment but merely an exception to the
aforesaid
requirement
taking
into
consideration the fact of the death of
employee while in service leaving his
family without any means of livelihood. It
was further observed that in such cases
the objects is to enable the family to get
over sudden financial crisis but such
appointments on compassionate ground
have to be made in accordance with the
rules,
regulations
or
administrative
instructions taking into consideration the
financial condition of the family of the
deceased. It would be eloquent from the
above decision that stress has been laid on
'livelihood'. In another decision in Smt.
Sushma Gosain and Ors. v. Union of
India and others3, it has been held that
the purpose of providing appointment on
compassionate ground is to mitigate the
hardship due to death of the bread earner
in the family and such appointment
should be provided immediately to
redeem the family in distress. Again in
Phoolwati v. Union of India and Ors4,
Union of India and Ors. v. Bhagwan
Singh5 and in Director of Education
(Secondary and Anr. v. Pushpendra

2 JT 1994 (3) SC 525
3 JT 1989 (3) SC 570
4 1991 Supp. (2) SCC 689
5 1995 (6) SCC 476
Kumar and others6, the Apex Court held
on
the
lines
that
out
of
purely
humanitarian consideration and having
regard to the fact that unless some source
of livelihood is provided the family would
not be able to make both ends meet,
provisions
are
made
for
giving
appointment to one of the dependents of
the deceased who may be eligible for
appointment. Again stress has been laid
upon livelihood.

8. In the light of the above decisions,
I feel called to delve into the aspect
whether the family of deceased employee
had sufficient means to keep the pot
boiling. It is worth noticing that the Bank
has assessed income of the family to the
extent of Rs. 10,070/- per month taking
into reckoning the amount paid to the
family as gratuity and other retiral-cumdeath
benefits
at
the
same
time.
According to the own showing of the
Bank, there is no immovable property left
behind by the deceased family to sustain
the Family and the only means of
livelihood are the lump-sum payment
made by the Bank and the monthly
pension as fixed. It would also appear that
the Bank has assessed monthly income on
the basis of lump sum payment on the
count of provident fund, gratuity, leave
encashment etc. without considering that
the amount received by the family in the
wake of the death of the deceased
employee. It would also appear that the
Bank had not set apart the amount equal
to liabilities left behind by the deceased
employee i.e. marrying off four daughters
and also that the pension fixed at Rs.
6,070/- payable to the family only upto
19.5.2006 would stand slashed to a sum
of Rs. 565/-.

6 JT 1998 (4) SC 155
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
94
9.

'Livelihood'
according
to
dictionary meaning has been defined to
mean means of subsistence. Likewise
income means a regular payment or a
payment
expected
to
be
regular.
According to the ordinary meaning what
is received is of the character of income
of whether it is merely a casual receipt or
mere windfall. According to dictionary
meaning, income is whatever is received
as gain e.g. wages or salary, receipts from
business, dividends from investment etc.
What transpires from the above is that it
should be of regular character. As stated
supra, the income of the family as
assessed by the Bank consists of pension
and the interest from the lump-sum
amount received by the family in the
aftermath of the death of deceased
employee which in my opinion, cannot be
said to be of regular character taking into
reckoning that the liabilities left behind
the deceased i.e. marrying off four
daughters and also taking into account
that the income in the form of pension
would stand slashed to Rs.565/- in the
year 2006 have been eschewed from
consideration by the Bank authorities
while computing the income of the family
in entirety. The Bank authority has also
not taken into account the amount
borrowed from relatives and friends for
administration
of
treatment
of
the
deceased employee. By this reckoning,
the income of the family cannot be
characterized as regular income, which is
likely to suffer depletion after a certain
period leaving the family again in lurch
and penurious fiscal position. No doubt,
as held by the Apex Court, the postretiral/post-death
benefits
which
the
family had received from the Bank have
to be included to consider the financial
condition of the family but at the same
time, the Bank has to take into reckoning
the liabilities left by the deceased
employee and after deducting average
amount towards liabilities what is left has
to be taken into reckoning to constitute
income of the family. This having not
been done, the impugned order passed by
the Bank is not sustainable, as the same
has been passed without determining
amount towards liabilities and without
making necessary deduction therefrom.

10. The Court is pained to notice
that in almost every case of this nature the
Bank authorities seem to be passing
identical orders initially giving details of
the amount received by the family of the
deceased
employee
without
any
discussion of reasons whether income
assessed by the Bank is of the character of
regular payment after meeting all the
liabilities left by the deceased employee.
It is also being noticed that the Bank
authorities, as a rule, eschew from
consideration the liabilities to be met by
the family of the deceased employee and
proceed
on
priori
consideration
to
compute the income without regard being
had
to
the
objects
underlying
compassionate appointment. No doubt,
payments being received by the family of
deceased are factors to be considered but
the
same
have
to
be
considered
objectively and not subjectively as done
in the instant case by the Bank authorities.
It has become a common practice with the
State Bank authorities to enumerate
details of income and thereafter, in fewer
words to state reasons on thread-bare lines
and therefore, to obtain approval of the
competent authority thereon. In the instant
case, after stating details of amount, the
Bank compressed their reasons in still
fewer lines which were forwarded for
approval to the competent authority and
the competent authority marked his
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1All] Mritunjay Mishra V. Chief General Manager, State Bank of India and another
95
approval without anything being added.
The
reasons
in
the
form
of
recommendations
as
contained
in
Annexure C.A. 1 to the Counter affidavit
are quoted below.

"In view of the Central Office
guidelines/Supreme Court judgment vis-àvis the above financial position of the
family,
we
observe
that
indigent
circumstances do not exist in the family.
We, therefore, recommend that request of
Smt. Ramawati Mishra for compassionate
appointment of her son, Mritunjai Mishra
in the Bank may please be declined. We
shall
advise
the
Deputy
General
Manager, State Bank of India, Zonal
office, Varanasi to advice Smt. Mishra
suitably and treat the matter as closed."

11. In letter addressed to the widow
of
the
deceased
employee
dated
26.8.2002, the Branch Manager while
communicating that the request for
compassionate appointment has been
rejected by the competent authority, has
also spelt out the guidelines extracted
from various decisions of the Apex Court
for
consideration
of
compassionate
appointment. The guidelines as recounted
in its letter, may be excerpted below.

a)
The object of granting compassionate
appointment is
(i) to enable the family to tide over the
sudden crisis caused by the death of the
sole breadwinner, and
(ii) to relieve the family of the financial
destitution and to help it get over the
emergency.
b)
Mere death of an employee in
harness does not entitle his family to such
source of livelihood
c)
The Government or public authority
has to examine the financial condition of
the family of the deceased and only if it is
satisfied that but for the provision of
employment, the family will not be able
to meet the crisis that a job is to be
offered to the eligible member of the
family.
d)
The only ground which can justify
compassionate
appointments
is
the
penurious condition of the deceased's
family. Offering employment irrespective
of the financial condition of the family is
legally impermissible."

Upon
consideration
of
the
above
guidelines, it would crystallise that the
Bank has to examine the financial
condition of the family of the deceased
and only if it is satisfied that but for the
provisions of employment, the family will
not be able to meet the crisis that a job is
to be offered to the eligible member of the
family. As stated supra, the Bank has
added up the total of all amount received
in lump sum by the family of the deceased
employee and converged to assessing
monthly income without, at the same
time, regard being had to the liabilities
and obligations to be discharged after the
death
of
deceased
employee.
The
petitioner clearly disclosed that the family
is survived by five school going children
the youngest one being 7 years old and
that during ailment of the deceased
employee, the family had to borrow and
incur expenditure to the extent of Rs.2.50
lac which the Bank Authority did not
include
while
computing
aggregate
income of the family. In my considered
view, if the Bank had considered the
entire amount received by the Family of
the deceased vis-à-vis the liabilities left
behind by the deceased employee, the
amount which may be distilled as income
would be very negligible and would not
constitute sufficient means. No reasons,
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
96
as stated supra, have been recorded and
subjective satisfaction recorded by the
Bank authorities has no grounding. The
Bank authorities have also not reckoned
with the aspect of liabilities of marriage
of the four daughters and also the aspect
of maintenance of family members the
youngest being 7 years old, after
20.5.2006 when the pension would stand
reduced to a paltry sum of Rs.565/-. In the
circumstances,
the
impugned
orders
cannot be sustained being one having
been passed sans consideration of pivotal
aspects bearing on the sustenance of the
family members. According to own
showing of the Bank, the family had no
immoveable property or any source of
income, which could be said to be of
permanent character and perennial nature.
The amount disclosed in the impugned
order is of dissipating character inasmuch
as the same cannot be said to be perennial
source of income. The eldest daughter
aged 19 years is said to be receiving
education in B.A and by all reckoning,
she can be said to be of marriageable age
and may be required to be married off in a
year or two. Even if it be assumed that a
cumulative amount of Rs. 2.50 lacs may
be required to be incurred in the marriage
of one daughter, a net amount of Rs. 10
lac is required to be married off four
daughters and by this reckoning also, the
income on that count cannot be said to be
income of permanent character. Having
regard to the above calculation and
computation, it would appear that only
source of income for the family is by way
of pension and too for a period of five
years which by no stretch of imagination
can be said to be adequate or sufficient. In
my considered view, the order impugned
here falls short of compliance on the own
showing of the Bank, with the guideline
(c) as delineated in Anenxure 8 to the writ
petition.

12. Coming to the next question, it
is noticeable that an amount of Rs. 2.5
lacs stated to have been received from
outsiders by the deceased employee has
not been taken into reckoning on the
ground that the same was not verifiable. It
brooks no dispute that the deceased
employee was ailing and was hospitalized
for treatment at Mata Anand Mai Hospital
Varanasi. The Bank authorities reckoned
out of consideration the sum of Rs.2.50
lac on mere ground that the said amount
was not verifiable. Besides, it would also
appear, the external liability has been
disclosed in the letter of the widow of
deceased
employee
dated
25.6.2002
(Anenxure 5 to the writ petition). From a
perusal of the contents of aforestated
letter, it would transpire that it has been
clearly stated in para 1 that a sum of Rs.
1,50,000/- had been incurred towards the
treatment of the deceased which payment
was repaid after receipt of gratuity and
provident fund. In para 2 of the letter, it
has been stated that a sum of Rs.40,000/-
was expended in performing last rites of
the deceased employee which amount was
repaid after receipt of provident/Gratuity
fund. In para 3 it has been stated that a
sum of Rs.60,000/- was borrowed from
various relatives which were spent on
maintaining family after the death of
deceased employee and the said amount
was
repaid
after
receipt
of
gratuity/provident fund. It is further stated
that the aforesaid amount was required as
payment of pension and fund etc. had
been delayed by seven months. In my
firm opinion, the expenses enumerated
above are normal expenses and the same
cannot be disputed and should not have
been eschewed from consideration. In
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1All] Mritunjay Mishra V. Chief General Manager, State Bank of India and another
97
reply to para 8 of the writ petition, the
deponent of the counter affidavit has not
denied the averments. The impugned
order does state external liabilities but the
same seems to be have been ignored as
not verifiable. There is no denying that
the deceased employee was ailing and
after protracted ailment, he breathed his
last. The expenses incurred on last rites
can also not be disputed and delay of
seven months in fixing pension and
payment of funds would naturally entail
borrowing, which has been done by the
family of the deceased in the case. In the
cumulative
circumstances,
the
same
cannot be eschewed from consideration
merely on the ground that the same were
not verifiable. In this view of the matter, I
am of the view that the income has not
been correctly assessed by the Bank and
therefore, impugned order cannot be
sustained. I would not forbear from
articulating that benefit of employment by
way of compassionate appointment under
dying in harness Rules should flow
liberally
unless
there
be
clinching
evidence to demonstrate that the family of
the deceased had sufficient means to fall
back upon. The scheme for appointment
on compassionate ground is a scheme in
the nature of beneficial legislation to
those on whom the destiny has inflicted
the unkindest cut and it would not be
proper to inflict further cut on the family
bedeviled by misfortune.

13. I would also like to observe that
it is a sad commentary that the family of
an employee who has devoted his best
years in the service of Bank, has been left
in lurch without care and concern by the
employer as to how surviving school
going children would receive education
from scantiness of means. The employer,
in the instant case, is a Nationalized Bank,
an instrumentality of State and therefore,
it is expected to behave as a model
employer also taking into consideration
that right to education is a right enshrined
under Article 41 of the Constitution of
India and in case for want of sufficient
means, the right to education of any of the
children left behind by the deceased is
affected, it would be seen to be infringing
upon
the
goals
cherished
in
the
Constitution of India.

14. It would also appear from a
perusal of impugned order turning down
the
request
for
compassionate
appointment that it is a one liner order
with no reasons assigned for conclusion
that the fiscal condition of the family was
such which could enable the family to
meet the crisis. Besides, it would appear
that the satisfaction arrived at is by all
means subjective and not objective
inasmuch as there is no indicia of analysis
of reasons warranting conclusion that the
family with the lump sum would be able
to tide over the crisis occasioned by the
death of the only earning member. In this
regard, it may be noticed that the basic
principle
of
Constitution
makes
it
imperative for administrative authorities
clothed with the duty to decide something
on consideration of policy or scheme, to
act judicially in order to guard against
arbitrariness. It has been reiterated in a
number
of
decisions
that
a
clear
application of mind must be discernible in
the order. Thus, it would not be difficult
to hold that the satisfaction is subjective
and not objective.

15. In the result, the petition
succeeds
and
is
allowed
and
in
consequence, the impugned order dated
30.7.2002 (Annexure C.A. 1 to the
counter affidavit) and the communication
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
98
letter dated 26.8.2002 (Anenxure 8 to the
writ petition) are quashed. Before parting,
I feel called to observe that the Bank
authorities will assess the income taking
into consideration the observations made
by this Court in the body of this Judgment
and would pass appropriate speaking
orders on objective consideration for
compassionate
appointment
of
the
petitioner after taking into reckoning the
liabilities of the family also within one
month from the date of receipt of a
certified copy of this judgment.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.112004

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE V.S. BAJPAI, J.

Civil Misc. Writ Petition No. 45215 of 2004

Dr. Birendra Singh

...Petitioner
Versus
Director of Education, Higher and others

 ...Respondents

Counsel for the Petitioner:
Sri P.S. Baghel

Counsel for the Respondents:
Sri U.N. Sharma
Sri Rohit Pandey
Sri N.L. Tripathi
Sri D.N. Tripathi
Ms. Sunita Agrawal
Sri O.N. Tripathi
S.C.

Deen
Dayal
Upadhyaya
Gorakhpur
University
Statutes-Statute
13.20Whether
Senior
most
teacher
in
officiated degree College is entitled to
continue as officiating principal under all
circumstances or can he be relieved of
charge on ground that an enquiry
contemplated against him regarding his
conduct
as
officiating
principalImpugned order voided, however, held,
senior most teacher cannot be deprived
of officiating principal merely on protect
of an enquiry-Committee of Management
has
stated
that
enqury
would
be
completed in 3 months-Hence direction
issued to complete enquiry within 3
months and decision may be taken in
accordance with finding-In case enquiry
is not completed within 3 months,
petitioner would be given back charge of
officiating
principal-However,
inquiry
may still continue.

Held: Para 14 & 15

We have not voided the impugned order
however the senior most teacher can not
be
deprived
of
officiating
principal
merely on the pretext of an inquiry. The
committee
of
management
has
mentioned that the inquiry would be
completed in three months. In view of
this, we dispose of the petition with
direction that the inquiry be completed
in three months and a decision may be
taken in accordance with the finding. In
case the inquiry is not completed in
three months then the petitioner would
be
given
back
the
charge
of
the
officiating principal however, the inquiry
in that event may still continue.

Our conclusions are as follows:
a)
For the first three months, there is
discretion
with
the
committee
of
management to appoint any teacher as
the officiating principal but after three
months there is no discretion: the senior
most teacher has to be appointed as the
officiating principal.
b)
There is nothing in the Statute
13.20 that mandates that even if an
inquiry is initiated against the officiating
principal, then he has to be continued as
such an officiating principal may be
relieved during inquiry if his continuance
is not in the interest of the institution.
c)
Opportunity of hearing is necessary
only in the case of removal and not in