# Shreyas Gramin Bank & Anr v. Smt. Kasturi Devi

- **Citation:** (2016) 1 ILRA 215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-29
- **Case number:** Special Appeal No. 1829 of 2010
- **Bench:** V.K. Shukla, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shreyas-gramin-bank-anr-v-smt-kasturi-devi-43410
- **Pages:** 12

## Headnote

Constitution
of
India,
Art.-226compassionate
appointment
class
4th
216
 INDIAN LAW REPORTS ALLAHABAD SERIES
employee working Gramin Bank died in
harness
on
27.09.2005-applied
for
compassionate appointment rejection on
ground of new scheme under clause 13entitled for ex-gratia lump sum amountLearned
Single
Judge
exceeded
its
jurisdiction by directing compassionate
appointment-can not be claimed as matter
right to this extent-order passed by Single
Judge modified with direction to consider
ex-gratia payment within 3 months.
Held: Para-29
Hon'ble Apex Court considered various
aspects of service jurisprudence and came to
the conclusion that as the appointment on
compassionate ground may not be claimed
as a matter of right nor an applicant
becomes
entitled
automatically
for
appointment, rather it depends on various
other
circumstances
i.e.
eligibility
and
financial conditions of the family, etc., the
application
has
to
be
considered
in
accordance with the scheme. In case the
Scheme does not create any legal right, a
candidate cannot claim that his case is to be
considered as per the Scheme existing on
the date the cause of action had arisen i.e.
death of the incumbent on the post. In State
Bank of India & Anr. (supra), this Court held
that in such a situation, the case under the
new Scheme has to be considered.
Case Law discussed:
JT 2007 (3) SC 35; 2010 (5) SCC 186; 2006
(1) ADJ 440; Special Appeal No. 840 of 2004;
W.P. No. 24066 of 2000; Special Appeal No.
1511 of 2012; Special Appeal No. 954 of 2009;
Special Appeal Defective No. 884 of 2015;
1994 AIR (II) 2148; (1994) 4 SCC 138; (2004)
7 SCC 271; (2006) 7 SCC 350; 2010 Law Suit
(SC) 1214; (2015) 7 SCC 412; 2014 (2) ADJ
742 (FB); (1989) 4 SCC 468; (1994) 4 SCC
138; (1994) 2 SCC 718; (1996) 1 SCC 301;
(1996) 5 SCC 308:AIR 1996 SC 2445; (1997) 8
SCC 85; 2006 AIR SCW 3708; Special Appeal
No. 356 of 2012;

## Text

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1 All. Shreyas Gramin Bank & Anr. Vs. Smt. Kasturi Devi
215
that when he applied for recruitment,
the appellant expressly stated that no
criminal case had been registered
against him and that no prosecution was
pending against him in any Court. When
he filed an affidavit, the appellant also
undertook that if his disclosures were
found to be incorrect or, if he was found
to have materially suppressed any true
facts,
his
selection
would
stand
cancelled
and
that
he
would
be
terminated from service without notice.
The appellant was selected on 28
August 2006. It is his specific case in
the
submissions
of
Counsel
that
thereafter on 31 August 2006 he applied
for and was granted bail by the Court of
the Chief Judicial Magistrate. The
judgment of acquittal was rendered by
the Chief Judicial Magistrate on 27
August 2007. From these facts, it cannot
not even be disputed that the disclosures
which the appellant made when he
sought appointment as a Constable were
palpably
false
and
that
he
had
suppressed a material fact relating to
the pendency of the criminal case
against him. The appellant was clearly
on notice that his appointment was
liable to be terminated and the selection
would be cancelled if his disclosures
were found to be incorrect and if there
was a suppression of material facts."
8. The judgment of the Division
Bench in the case of Veer Pal Singh
(supra) is on its own facts and has
absolutely no application to the facts of
the present case.
9. In my opinion in the present case
the judgement of the High Court in the
case of Ram Kumar (supra) squarely
applies. The respondents while passing
the
impugned
order
cancelling
the
candidature of the petitioner have not
taken into consideration the question of
eligibility of the petitioner or the fact that
he had himself at the time of being sent
for training filed an affidavit disclosing
the fact that he had been involved in a
criminal case and discharged as far back
as in 2001.
10. In this view of the matter, the
impugned order 19.2.2015 cannot survive
and is quashed. The writ petition is
allowed and the matter is remitted to the
respondent
no.
3-Senior
Divisional
Security Commissioner, R.P.F. Ambala
Division, Incharge of PRTC/Jehankhelan
Hoshiarpur to reconsider the matter in the
light of the observations made above as
well as having regard to the judgement of
the Supreme Court in the case of Ram
Kumar (supra) within a period of one
month from the date of receipt of the
certified copy of this order.
-------
.APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2016
BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
Special Appeal No. 1829 of 2010
Shreyas Gramin Bank & Anr. ..Appellants
Versus
Smt. Kasturi Devi
...Respondent
Counsel for the Appellants:
Yashwant Varma
Counsel for the Respondent:
Bharat Pratap Singh, Amrish Sahai
Constitution
of
India,
Art.-226compassionate
appointment
class
4th
216
 INDIAN LAW REPORTS ALLAHABAD SERIES
employee working Gramin Bank died in
harness
on
27.09.2005-applied
for
compassionate appointment rejection on
ground of new scheme under clause 13entitled for ex-gratia lump sum amountLearned
Single
Judge
exceeded
its
jurisdiction by directing compassionate
appointment-can not be claimed as matter
right to this extent-order passed by Single
Judge modified with direction to consider
ex-gratia payment within 3 months.
Held: Para-29
Hon'ble Apex Court considered various
aspects of service jurisprudence and came to
the conclusion that as the appointment on
compassionate ground may not be claimed
as a matter of right nor an applicant
becomes
entitled
automatically
for
appointment, rather it depends on various
other
circumstances
i.e.
eligibility
and
financial conditions of the family, etc., the
application
has
to
be
considered
in
accordance with the scheme. In case the
Scheme does not create any legal right, a
candidate cannot claim that his case is to be
considered as per the Scheme existing on
the date the cause of action had arisen i.e.
death of the incumbent on the post. In State
Bank of India & Anr. (supra), this Court held
that in such a situation, the case under the
new Scheme has to be considered.
Case Law discussed:
JT 2007 (3) SC 35; 2010 (5) SCC 186; 2006
(1) ADJ 440; Special Appeal No. 840 of 2004;
W.P. No. 24066 of 2000; Special Appeal No.
1511 of 2012; Special Appeal No. 954 of 2009;
Special Appeal Defective No. 884 of 2015;
1994 AIR (II) 2148; (1994) 4 SCC 138; (2004)
7 SCC 271; (2006) 7 SCC 350; 2010 Law Suit
(SC) 1214; (2015) 7 SCC 412; 2014 (2) ADJ
742 (FB); (1989) 4 SCC 468; (1994) 4 SCC
138; (1994) 2 SCC 718; (1996) 1 SCC 301;
(1996) 5 SCC 308:AIR 1996 SC 2445; (1997) 8
SCC 85; 2006 AIR SCW 3708; Special Appeal
No. 356 of 2012;
(Delivered by Hon'ble M.C. Tripathi, J.)
1. Gramin Bank of Aryavart (earlier
known as 'Shreyas Gramin Bank) through
its Chairman and the General Manager,
Gramin Bank of Aryavart are before this
Court assailing the validity of the
judgement and order dated 22.9.2010
passed by learned Single Judge of this
Court in Writ A No.43145 of 2007 (Smt.
Kasturi Devi vs. Shreyas Gramin Bank
and ors) wherein he had proceeded to
allow the writ petition and the appellantbank was directed to forthwith re-consider
the claim for compassionate appointment
within two months.
2.
The factual situation that is
accepted before us is that husband of the
petitioner-respondent was working as a
Class-IV employee under the appellantbank and he died in harness on 27.9.2005.
Thereafter being as widow of late Lala
Ram,
the
petitioner-respondent
had
proceeded to move an application for
compassionate appointment on 8th October,
2005. The claim of the petitioner was
rejected on 7.12.2010 precisely on the
ground that in view of the new Scheme
having been enforced, the petitionerrespondent is only entitled for ex-gratia
lump sum amount which satisfies her claim,
and as such, she was not entitled for
compassionate employment. The said order
was assailed before learned Single Judge on
the ground that in the case of State Bank of
India and others Vs. Jaspal Kaur reported in
JT 2007 (3) SC 35, Hon'ble Apex Court had
held that it is the scheme, which was
applicable at the time of moving of the
application, which has to be enforced and
consequently the claim of the petitionerrespondent was liable to be considered for
compassionate appointment. It had been
pleaded before learned Single Judge that in
view of Scheme, which was prevailing at
the time of death of her husband, she was
entitled
for
being
considered
for
compassionate appointment and subsequent
1 All. Shreyas Gramin Bank & Anr. Vs. Smt. Kasturi Devi
217
Circular issued by the appellant-bank would
not divest her legitimate expectation for
compassionate employment. Therefore, it
was urged that she was entitled for
consideration on the basis of the then
existing Rules and the appellant-bank could
not reject her claim on the basis of
subsequent Circular.
3. It has been argued by learned
counsel for the appellant-bank that the
petitioner
was
not
entitled
for
consideration
for
compassionate
employment in terms of the new Scheme
as per the decision taken by the Bank.
Reliance had also been placed to Clause
13 of the Model Scheme for payment of
ex-gratia (lum sum amount), which recites
that if any application is pending as on the
effective date on the promulgation of the
new
Scheme,
which
is
admittedly
21.10.2006, the same will be governed by
the new Scheme and it had also been
pleaded that compassionate employment
is not vested right and as such, the date of
consideration will be an appropriate date.
Consequently the Scheme applicable on
such date would be the criteria for
consideration
of
such
claim.
The
appellant-bank had placed reliance on the
judgement passed by Hon'ble Supreme
Court in State of Kerala Vs. B-Six
Holiday Resorts (P) Ltd. reported in 2010
(5) SCC 186, in which it was held in
paragraph 22 as follow:-
" Where the rules require grant of a
licence subject to the fulfilment of certain
eligibility
criteria either to safeguard
public interest or to maintain efficiency in
administration,
it
follows
that
the
application for licence would require
consideration and examination as to
whether the eligibility conditions have
been fulfilled or whether grant of further
licences is in public interest. Where the
applicant for licence does not have a
vested interest for grant of licence and
where grant of licence depends on various
factors or eligibility criteria and public
interest, the consideration should be with
reference to the law applicable on the date
when the authority considers applications
for grant of licences and not with
reference to the date of application."
4. In this background, learned Single
Judge had proceeded to allow the writ
petition filed by the petitioner-respondent
on the basis of decision taken by Hon'ble
Apex Court in State Bank of India and
others Vs. Jaspal Kaur (supra). The
relevant
part
of
the judgement
is
reproduced as follows:-
"In view of the ratio of the said
decision it is clear that the applicability of
the circular which was not in existence at
the time of moving of the application, is
not relevant. The judgement in the Case
of State of Kerala (supra) as relied by the
respondents' counsel is in relation to grant
of liquor licence which is a judgment on a
different proposition of law. It would not
be applicable to the present controversy
when the judgment directly in issue holds
that
the
benefit
of
compassionate
appointment is available to the petitioner.
The question as to whether a person
has a vested right for compassionate
appointment is no longer res-integra. The
right has limited only to the extent of
consideration in accordance with rules.
The authority has discretion but the said
discretion is also circumscribed by rules.
Accordingly the authority has to
exercise a judicious discretion and not a
whimsical decision so as to frustrate the
very purpose of the rule. Reference may
be had to the decision of the Apex Court
218
 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in 2006 (10) SCC 1 paragraphs
26 to 35, Reliance Airport Developers (P)
Ltd. Vs. Airports Authority of India and
others. In the instant case the authority
has proceeded to reject the claim of the
petitioner on the ground that in view of
the new scheme having been enforced the
petitioner is entitled only to ex gratia
payment which satisfies her claim. The
rejection therefore is not inconsonance
with the law laid down in the case of
Jaspal Kaur (Supra) as pointed out herein
above. The petitioner in my considered
opinion has a right to be considered for
compassionate appointment in accordance
with the provisions that were then
existing.
Accordingly the impugned order
dated 07.12.2006 is quashed. The writ
petition is allowed. The respondent Bank
is directed to forthwith re-consider the
claim for compassionate appointment in
view of the observations made herein
above and issue necessary orders within
two months from the date of production
of a certified copy of this order before the
concerned authority.
5. Shri Amrish Sahai, learned
counsel appearing for the appellant-bank
submitted that it is settled that an
application
seeking
benefits
of
compassionate
appointment
must
be
decided
in
accordance
with
the
law/rules/regulations as prevailing on the
date of consideration of the application
and when the petitioner-respondent had
proceeded to move an application on
8.10.2005
for
compassionate
appointment, she did not have any vested
right in her favour to obtain appointment
on compassionate ground precisely in the
backdrop that by the Circular of Indian
Banks
Association
dated
31.7.2004
appellant-bank had already taken a policy
decision for doing away with the system
of compassionate appointment and the
same was eventually adopted by the
appellant-bank
on
27.10.2006.
Even
though the Circular of Indian Banks
Association was moved on 31.7.2004 and
the
final
adoption
took
place
on
27.10.2006, the delay was occurred on
account of clarification, which was sought
from
the
concerned
Ministry
of
Government of India to the extent, as to
whether the said guidelines would also
apply to the Regional Rural Banks created
under powers vested in Rural Bank Act,
1976. Once the Apex Body i.e. Indian
Banks Association framed a Model
Scheme for payment of ex-gratia for all
Public Sector Banks in pursuance of the
decision taken by the Government of
India, then the same had binding effect.
Therefore, at the time of submission of
her application, the policy decision was
already taken by the Indian Banks
Association and the same was widely
circulated to all Public Sector Banks
alongwith Model Scheme for payment of
ex-gratia
in
lieu
of
compassionate
employment.
6.
Learned counsel appearing for the
appellant-bank has also placed his reliance
on the judgments passed by this Court in
Abhimanyu Ratan Bhardwaj vs. State of UP
and ors 2006 (1) ADJ 440 (All. DB; Special
Appeal No.840 of 2004 (Vidyavrat Rajpoot
vs. Mukhya Vittiya Adhikari Zila Parishad &
ors); Writ Petition No.24066 of 2000
(Ashutosh Arya vs. the Indian Bank and ors)
decided on 27.7.2012; Special Appeal
No.1511 of 2012 (Ashutosh Arya vs. the
Indian Bank) decided on 2.4.2014; Special
Appeal No.954 of 2009 decided on
14.7.2009 and Special Appeal Defective
No.884 of 2015 (State of UP & 3 ors vs.
Mahaveer Singh and 2 ors) decided on
1 All. Shreyas Gramin Bank & Anr. Vs. Smt. Kasturi Devi
219
12.1.2016. He has also relied upon
judgments of Supreme Court in LIC of India
vs. Asha Ram Chandran Ambedkar 1994
AIR (II) SC 2148; General Manager (D &
PB) & ors vs. Kunti Tiwari & ors (1994) 2
SCC 418; Umesh Kumar Nagpal vs. State of
Haryana & ors (1994) 4 SCC 138; Punjab
National Bank and ors vs. Ashwani Kumar
Taneja (2004) 7 SCC 271; Union of India
and ors vs. M.T. Latheesh (2006) 7 SCC
350; State Bank of India and another vs. Raj
Kumar 2010 LawSuit (SC) 1214; Civil
Appeal No. 6348 of 2013 (MGB Gramin
Bank vs. Chakrawati), arising out of SLP (C)
No.13957/2010, decided on 7 August, 2013
and Canara Bank vs. M. Mahesh Kumar
(2015) 7 SCC 412 in support of his
submission.
7. On the other hand, it has been
submitted by Shri Bharat Pratap Singh,
appearing on behalf of the petitionerrespondent that learned Single Judge has
rightly allowed the writ petition relying on
the judgement in State Bank of India and ors
vs. Jaspal Kaur (supra) which holds the field
and no interference is required at this stage
and the petitioner has already suffered a lot.
He has placed reliance on the judgment in
Canara Bank and another vs. M. Mahesh
Kumar (2015) 7 SCC 412 in which it was
held by Hon'ble Supreme Court that the
rescission of a scheme for compassionate
appointment will not affect an application
submitted when the scheme was in force and
which was held to be governed by the
scheme then prevailing on the date of the
application.
8. Heard rival submissions and
perused the record.
9. This much is reflected from the
record in question that the Scheme for
compassionate
appointment
was
introduced in the erstwhile Aligarh
Gramin Bank as per the directives issued
by the Government of India vide Circular
No.71/82 dated 23.9.1982. The features of
the Scheme are as under:-
"SCHEME FOR APPOINTMENT
OF DEPENDENTS OF DECEASED
EMPLOYEES ON COMPASSIONATE
GROUNDS IN REGIONAL RURAL
BANKS:
1. Short title and commencement:-
This scheme may be called "scheme
for appointment in clerical and subordinate cadres of dependents of deceased
employees of Regional Rural Banks on
compassionate grounds. The scheme shall
come into force from 1.10.1982.
2. Definition:
a) In this scheme, unless the context
otherwise requires "Bank" means Aligarh
Gramin Bank.
b) "Board" means The Board of
Directors of Aligarh Gramin Bank.
c) "Chairman" means The Chairman
of the Board of Directors.
d) "Employees" means a regular
employee whether in the sub-ordinate,
clerical
or
Officers
cadre,
whether
confirmed or on probation and whether
working full time or part time but will not
include temporary or casual employee.
e) "Dependent" means a widow, a
son, a daughter, a brother, a sister of the
deceased employee or any other close
relative nominated by the widow when
deceased employee has left behind no
children
or
his
own
eligible
for
appointment and on whom she will be
wholly dependent.
3. Appointment under the Scheme:
220
 INDIAN LAW REPORTS ALLAHABAD SERIES
The Bank may, at its discretion,
appoint in the Bank in any of the points
mentioned the reunder the widow or a son
or daughter of a deceased employee of the
Bank or a near relative nominated by the
widow on whom she will be wholly
dependent and who would give in writing
that he or she would look after the family
of the deceased employee, if the widow or
son or daughter or a near relative as the
case may be, fulfills the criteria for
appointment under the scheme, where the
deceased employee was a widower or a
bachelor, the bank may exercise its
discretion in this regard, by making
inquiries of the next elder in the family.
The appointment under this scheme shall
be made in clerical and sub-ordinate
cadres which is as under:
1. Junior clerk cum Cashier
2. Junior Clerk cum Typist
3. Steno Junior cadre
4. Driver
5. Sweeper/ Messenger."
10. As per record this much is also
reflected that a policy decision was taken
by the Government of India to abolish the
scheme of compassionate employment.
The Indian Banks Association vide their
letter dated 31.7.2004 had advised all
Public Sector Banks a model scheme for
payment of ex-gratia lump sum amount to
the need of kin of the deceased employee
in lieu of appointment on compassionate
grounds. Certain clarification was also
asked from the Government of India as
well as NABARD whether the subsequent
scheme was applicable to Regional Rural
Banks. In this background, the General
Manager, Canara Bank (A Government of
India undertaking) had informed to the
Chairman, Aligarh Gramin Bank, Aligarh
on 26.2.2005 informing that IBA, vide
their letter No.PD/CIR/76/532/153 dated
31.7.2004 had advised all Public Sector
Banks a model scheme for payment of exgratia lump sum amount to the need of
Kin of the deceased employee in lieu of
appointment on compassionate grounds.
Consequently, it had also been informed
that the Bank had already proceeded for
clarification with NABARD/Government
of India in this regard to examine whether
the guidelines applicable to RRBs need
any change in the light of the scheme
formulated by IBA for adoption by Public
Sector Banks. Finally the Board of
Directors of the appellant bank resolved
that bank is permitted to implement the
scheme for payment of ex-gratia (lump
sum amount) in lieu of appointment on
compassionate grounds as per Model
Scheme of IBA on 27.10.2006 at Agenda
No.52.
11. We have occasion to peruse the
Model Scheme in question. Clause-11 of
the said Scheme provides that the exgratia relief under the above Scheme is
not an entitlement but may be granted at
the sole discretion of the bank looking
into the financial condition of the family
and in deserving and eligibility cases
only. Clause-13 of the Model Scheme
clearly proceeds to make a mention that
the Scheme will come into force from the
date it is approved by the Board of the
bank
and
all
applications
for
compassionate appointment/grant of lump
sum financial relief, if any, pending as on
the effective date will be dealt with in
accordance with the above Scheme
approved by the Board. This much is also
reflected from the record in question that
subsequent Scheme, which was floated by
IBM in the year 2004, was also accorded
approval by the Board of Directors of the
appellant bank on 27.10.2006. Clause-13
is quoted here under:-
1 All. Shreyas Gramin Bank & Anr. Vs. Smt. Kasturi Devi
221
"13. The Scheme will come into
force from the date it is approved by the
Board of the bank and all applications for
compassionate appointment/grant of lump
sum financial relief, if any, pending as on
the effective date will be dealt with in
accordance with the above Scheme
approved by the Board."
12. The decision of the Supreme Court
in Canara Bank (supra) dealt with a situation
where there was a dying-in-harness scheme
under a circular of the Canara Bank dated
8.5.1993. An employee of the bank died
while on duty on 10.10.1998 and an
application was made on 30.11.1998 by his
heirs
for
seeking
compassionate
appointment.
The
bank
rejected
the
application on 30.6.1999. Learned Single
Judge of the Kerala High Court allowed the
writ petition on 30.5.2003 with direction to
the bank to reconsider the claim in
accordance with law. The judgment of the
learned Single Judge was upheld by a
Division Bench of the Kerala High Court on
24.8.2006. By the time the Division Bench
had decided the writ appeal, the scheme for
compassionate appointment was scrapped
and the Indian Bank Association formulated
a scheme based on guidelines of the Union
Government stipulating ex-gratia payment in
lieu of compassionate appointment. A
circular was issued on 14.2.2005 and it was
asserted on behalf of the bank that as on the
date of consideration of the application for
compassionate appointment, there was no
policy to provide such an appointment under
the 1993 Scheme. The Supreme Court, in
these facts, held that the father of the
respondent had died in October, 1998 when
the dying-in-harness scheme dated 8.5.1993
was in force and in fact, the bank had
rejected the claim on 30.6.1999. Hence, the
cause of action to be considered for
compassionate appointment had arisen when
the circular of 8.5.1993 was in force and the
circular of 2005 being an administrative
order was held not to have retrospective
effect. Moreover, the Supreme Court also
observed that the 2005 scheme which
provided only for ex-gratia payment in lieu
of appointment had in fact been substituted
(during the pendency of the proceedings
before the Supreme Court) in 2014 and a
new scheme had been arrived at for
providing
compassionate
appointment.
Hence, as on the date of the judgment of the
Supreme Court, the scheme in force provided
for the grant of compassionate appointment.
It was in these facts, which are clearly
distinguishable, that the Supreme Court held
that the Bank was not justified in contending
that the application for compassionate
appointment could not be considered in view
of the passage of time.
13. In the present matter, what we
find from the record in question that
husband of the petitioner-respondent, who
was working as Class-IV employee in the
appellant-bank,
died
in
harness
on
27.9.2005.
The
petitioner-respondent
moved an application for compassionate
employment
on
8.10.2005.
Pending
consideration of the above claim, a new
scheme known as "Model Scheme for
Payment
of
Ex-gratia
(Lump
Sum
Amount) in lieu of Appointment on
Compassionate Grounds in RRB" came
into effect. On 13.7.2006 the Chief
General Manager, National Bank for
Agriculture
and
Rural
Development
informed the General Manager, all
Sponsor Banks, RRB Division that the
effective date for implementation of the
scheme will be the date on which the
Board of the individual RRB approves the
same. As indicated in Para 13 of the
Model Scheme, all applications for
compassionate appointment/grant of lump
222
 INDIAN LAW REPORTS ALLAHABAD SERIES
sum financial relief, if any, pending as on
the effective date will be dealt with in
accordance with the above scheme
approved by the bank. The Board of
Directors of the appellant-bank accepted
the said scheme on 27.10.2006 and
resolved that the bank is permitted to
implement the scheme for payment of exgratia (lump sum amount) in lieu of
appointment on compassionate grounds as
per Model Scheme of IBA. Consequently,
the appellant-bank rejected the claim of
the petitioner-respondent vide order/letter
dated 7.12.2006.
14. Any scheme or rule, which
comes is always prospective in nature
unless the scheme itself provides that it is
applicable from retrospective effect. In
the said Scheme in question, there is
specific provision that the Scheme will
come into force from the date it is
approved by the Board of the Bank and all
applications
for
compassionate
appointment/grant of lump sum financial
relief, if any, pending as on the effective
date, will be dealt with in accordance with
the above Scheme approved by the Board.
This much is also reflected from the
record in question that there was no
challenge to Clause-13 of the Scheme in
question in the writ petition or any other
circulars which require the appellantrespondent to decide the application as
per the Scheme in question.
15. In Anand Kumar Sharma vs.
State of U.P. and Ors 2014 (2) ADJ 742
(FB) a Full Bench of this Court held that
the petitioner did not acquire any vested
right on making the application on
25/7/2005
to
get
his
application
considered on the basis of the policy as
existing on the date of making the
application. The Government order dated
04/8/2006 was fully applicable w.e.f.
04/8/2006 and no error was committed by
the Collector taking into consideration the
policy
dated
04/8/2006
when
the
application was rejected on 18/12/2006.
16. In Smt. Sushma Gosain & Ors.
V. Union of India & Ors. (1989) 4 SCC
468, it was observed that in claims of
appointment on compassionate grounds,
there should be no delay in appointment.
The purpose of providing appointment on
compassionate ground is to mitigate the
hardship due to death of the bread earner
in the family. Such appointments should,
therefore, be provided immediately to
redeem the family in distress.
17. In Umesh Kumar Nagpal V. State
of Haryana & ors. (1994) 4 SCC 138, it was
ruled that public service appointment should
be made strictly on the basis of open
invitation of applications and on merits. The
appointment
on
compassionate
ground
cannot be a source of recruitment. It is
merely an exception to the requirement of
law keeping in view the fact of the death of
employee while in service leaving his family
without any means of livelihood. In such
cases, the object is to enable the family to get
over
sudden
financial
crisis.
Such
appointments on compassionate ground,
therefore, have to be made in accordance
with Rules,Regulations or administrative
instructions taking into consideration the
financial condition of the family of the
deceased. This favorable treatment to the
dependent of the deceased employee must
have clear nexus with the object sought to be
achieved
thereby,
i.e.
relief
against
destitution. At the same time, however, it
should not be forgotten that as against the
destitute family of the deceased, there are
millions and millions of other families which
are equally, if not more, destitute. The
1 All. Shreyas Gramin Bank & Anr. Vs. Smt. Kasturi Devi
223
exception to the rule made in favour of the
family of the deceased employee is in
consideration of the services rendered by him
and the legitimate expectation, and the
change in the status and affairs of the family
engendered by the erstwhile employment,
which are suddenly upturned.
18.
In Life Insurance Corporation of
India V. Asha Ramchandra Ambekar (Mrs.)
& Anr. (1994)2 SCC 718, it was indicated
that
High
Courts
and
Administrative
Tribunals cannot confer benediction impelled
by sympathetic considerations to make
appointments on compassionate grounds
when the regulations framed in respect
thereof do not cover and contemplate such
appointments.
19. The Supreme Court in the case
of Jagdish Prasad V. State of Bihar and
another reported in (1996) 1 SCC 301
dismissing the appeal filed by the son of
deceased employee held in paragraph 3 as
under:
"3. It is contended for the appellant that
when his father died in harness, the appellant
was minor; the compassionate circumstances
continue to subsist even till date and
that,therefore, the court is required to
examine whether the appointment should be
made on compassionate grounds. We are
afraid, we cannot accede to the contention.
The very object of appointment of a
dependent of the deceased employees who
die in harness is to relieve unexpected
immediate hardship and distress caused to
the family by sudden demise of the earning
member of the family. Since the death
occurred way back in 1971, in which year
the appellant was four years old, it cannot be
said that he is entitled to be appointed after
he attained majority long thereafter. In other
words,if that contention is accepted, it
amounts to another mode of recruitment of
the dependent of a deceased Government
servant which cannot be encouraged,de hors
the recruitment rules."
20. In State of Haryana and Ors. Vs.
Rani Devi and Anr (1996) 5 SCC 308 :
AIR 1996 SC 2445), it was held that the
claim of applicant for appointment on
compassionate ground is based on the
premise that he was dependent on the
deceased employee. Strictly this claim
cannot be upheld on the touchstone of
Article 14 and 16 of the Constitution.
However, such claim is considered
reasonable as also allowable on the basis
of sudden crisis occurring in the family of
the employee who had served the State
and died while in service. That is why it is
necessary for the authorities to frame
Rules, Regulations or to issue such
administrative instructions which can
stand the test of Articles 14 and16 .
Appointment on compassionate ground
cannot be claimed as a matter or right.
21. The Supreme Court in the case
of Haryana State Electricity Board and
another V. Hakim Singh reported in
(1997) 8 SCC 85 has observed that If the
family
members
of
the
deceased
employee can manage for fourteen years
after his death one of his legal heirs
cannot put forward a claim as though it is
a line of succession by virtue of a right of
inheritance. The object of the provisions
should not be forgotten that it is to give
succor to the family to tide over the
sudden financial crisis befallen the
dependents on account of the untimely
demise of its sole earning member.
22. Hon'ble Apex Court in the case of
State of J. & K. vs. Sajad Ahmed Mir, 2006
AIR SCW 3708, has taken the view that
224
 INDIAN LAW REPORTS ALLAHABAD SERIES
compassionate
appointment
cannot
be
claimed as matter of right, at the cost of
others.
Normally,
an
employment
in
Government or other public sectors should
be open to all eligible candidates who can
come forward to apply and compete with
each other. It is in consonance with Article
14 of the Constitution. On the basis of
competitive merits, an appointment should
be made to public office. This general rule
should not be departed except where
compelling circumstances demand, such as,
death of sole bread earner and likelihood of
the family suffering because of the setback.
Once it is proved that in spite of death of
bread earner, the family survived and
substantial period is over, there is no
necessity to say 'goodbye' to normal rule of
appointment and to show favour to one at the
cost of interests of several others ignoring the
mandate of Article 14 of the Constitution.
23. A Full Bench of this Court,
while deciding Special Appeal No.356 of
2012 (Shiv Kumar Dubey vs. State of
U.P. & others) and other connected cases,
has formulated the principles governing
appointments on compassionate grounds
under the Dying in Harness Rules, 1974.
The principles elucidated in para 29 of the
judgment read as follows:-
"29. We now proceed to formulate
the
principles
which
must
govern
compassionate appointment in pursuance
of Dying in Harness Rules:
(i) A provision for compassionate
appointment is an exception to the
principle that there must be an equality of
opportunity
in
matters
of
public
employment.
The
exception
to
be
constitutionally valid has to be carefully
structured and implemented in order to
confine compassionate appointment to
only those situations which subserve the
basic object and purpose which is sought
to be achieved;
(ii) There is no general or vested
right
to
compassionate
appointment.
Compassionate
appointment
can
be
claimed only where a scheme or rules
provide for such appointment. Where
such a provision is made in an 26
C.M.W.P.
No.
13102
of
2010
administrative scheme or statutory rules,
compassionate appointment must fall
strictly within the scheme or, as the case
may be, the rules;
(iii) The object and purpose of
providing compassionate appointment is
to enable the dependent members of the
family of a deceased employee to tide
over the immediate financial crisis caused
by the death of the bread-earner;
(iv) In determining as to whether the
family is in financial crisis, all relevant
aspects must be borne in mind including
the income of the family; its liabilities, the
terminal benefits received by the family;
the age, dependency and marital status of
its members, together with the income
from any other sources of employment;
(v) Where a long lapse of time has
occurred since the date of death of the
deceased
employee,
the
sense
of
immediacy for seeking compassionate
appointment would cease to exist and this
would be a relevant circumstance which
must weigh with the authorities in
determining as to whether a case for the
grant of compassionate appointment has
been made out;
(vi) Rule 5 mandates that ordinarily,
an
application
for
compassionate
appointment must be made within five
years of the date of death of the deceased
employee. The power conferred by the
first proviso is a discretion to relax the
period in a case of undue hardship and for
1 All. Shreyas Gramin Bank & Anr. Vs. Smt. Kasturi Devi
225
dealing with the case in a just and
equitable manner;
(vii)
The
burden
lies
on
the
applicant, where there is a delay in
making an application within the period
of five years to establish a case on the
basis of reasons and a justification
supported
by documentary and other
evidence. It is for the State Government
after considering all the facts to take an
appropriate decision. The power to relax
is in the nature of an exception and is
conditioned by the existence of objective
considerations to the satisfaction of the
government;
(viii) Provisions for the grant of
compassionate
appointment
do
not
constitute a reservation of a post in favour
of a member of the family of the deceased
employee. Hence, there is no general right
which can be asserted to the effect that a
member of the family who was a minor at
the time of death would be entitled to
claim compassionate appointment upon
attaining majority. Where the rules
provide for a period of time within which
an application has to be made, the
operation of the rule is not suspended
during the minority of a member of the
family."
24. In fact, as held by the Full Bench
of this Court in Anand Kumar Sharma
(supra), the mere making of an application
would not confer an indefeasible or vested
right for appointment on compassionate
ground. A new Scheme for payment of exgratia
in
lieu
of
appointment
on
compassionate ground in RRBs came into
effect on 31.7.2004 and the Board of
Directors of appellant-bank accepted the said
scheme on 27.10.2006 and as per Para-13 of
the Scheme in question, all applications for
compassionate appointment/grant of lump
sum financial relief, if any, pending as on the
effective date, will be dealt with in
accordance with the above Scheme approved
by the appellant-bank. Consequently the
claim of the petitioner-respondent was
rejected on 7.12.2006.
25.
Learned Single Judge had
observed in the impugned judgment dated
22.9.2010 that the petitioner has a right to be
considered for compassionate appointment in
accordance with the provisions that were
then existing and the appellant-bank was
directed to forthwith re-consider the claim of
petitioner-respondent
for
compassionate
appointment.
26.
In A. Umarani v Registrar, Cooperative Societies & Ors., AIR 2004 SC
4504, Hon'ble Apex Court has held that the
Courts should not exercise the extraordinary
jurisdiction issuing a direction to give
compassionate appointment in contravention
of the provisions of the Scheme/Rules etc., as
the provisions have to be complied with
mandatorily and any appointment given or
ordered to be given in violation of the
scheme would be illegal.
27.
The word ''vested' is defined in
Black's Law Dictionary (6th Edition) at page
1563, as ''vested', fixed; accrued; settled;
absolute; complete. Having the character or
given in the rights of absolute ownership; not
contingent; not subject to be defeated by a
condition precedent. Rights are ''vested' when
right to enjoyment, present or prospective,
has become property of some particular
person or persons as present interest; mere
expectancy of future benefits, or contingent
interest in property founded on anticipated
continuance of existing laws, does not
constitute vested rights.
28.
In Webster's Comprehensive
Dictionary (International Edition) at page
226
 INDIAN LAW REPORTS ALLAHABAD SERIES
1397, ''vested' is defined as Law held by a
tenure subject to no contingency; complete;
established by law as a permanent right;
vested interest. (Vide: Bibi Sayeeda v State
of Bihar AIR 1996 SC 516; and J.S. Yadav v
State of Uttar Pradesh (2011) 6 SCC 570)
Thus, vested right is a right independent of
any contingency and it cannot be taken away
without consent of the person concerned.
Vested right can arise from contract, statute
or by operation of law. Unless an accrued or
vested right has been derived by a party, the
policy decision/ scheme could be changed.
(Vide: Kuldip Singh v Government, NCT
Delhi AIR 2006 SC 2652)
29.
Hon'ble Apex Court considered
various aspects of service jurisprudence and
came to the conclusion that as the
appointment on compassionate ground may
not be claimed as a matter of right nor an
applicant becomes entitled automatically for
appointment, rather it depends on various
other circumstances i.e. eligibility and
financial conditions of the family, etc., the
application has to be considered in
accordance with the scheme. In case the
Scheme does not create any legal right, a
candidate cannot claim that his case is to be
considered as per the Scheme existing on
the date the cause of action had arisen i.e.
death of the incumbent on the post. In State
Bank of India & Anr. (supra), this Court
held that in such a situation, the case under
the new Scheme has to be considered.
30. In view of the above position, the
reasoning given by the learned Single
Judge is not sustainable in the eyes of law.
The Special Appeal is allowed and the
impugned judgment passed by learned
Single Judge of this Court is set aside.
Consequently, the writ petition filed by the
petitioner-respondent
shall
stand
dismissed.
31. The respondent-petitioner may
apply for consideration of her case under
the new Scheme and the appellants shall
consider her case strictly in accordance
with Clause 13 of the said new Scheme
within a period of three months from the
date of receiving of application.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.02.2016
BEFORE
THE HON'BLE ANIL KUMAR, J.
Misc. Single No. 2173 of 2016
Arun Kumar Singh @ Pappu Singh & Ors.
Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Rajesh Bahadur Singh Rath
Counsel for the Respondents:
Govt. Advocate
Constitution of India, Art.-227-petition
against
direction
by
Magistrate
to
register
and
investigate
the
casewhether can prospective accused be
allowed to challenge such order? held-
'No'-in view of Full Bench decision of
Shushma Thomus case-only remedy to
file writ petition under Art. 226.
Held: Para-13
In the instant matter on the application
moved by opposite party no.3 under Section
156(3) Cr.P.C.