# Sunita Kumari v. A.G.M.,S.B.I., Varanasi and another

- **Citation:** (2009) 2 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-06
- **Case number:** Civil Misc. Writ Petition No. 20342 of 2000
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunita-kumari-v-a-g-m-s-b-i-varanasi-and-another-41546
- **Pages:** 5

## Headnote

Constitution
of
India
Art.
226Compossinate
appointment-petitioner's
father died in harness- working as
Security Guard-rejection of claim as his
mother getting family pension Rs.2875/-
apart from terminate benefits of gratuity
of Rs.3.12 lacs- immovable assets worth
of Rs.3.12 lacs three brothers already
married-cased within the member of
family-for small members of family-can
not be said to be penury on destitution
appointment rightly refused.

Held: Para 13

In view of the fact that the family of the
deceased has been paid a sum of Rs.3.12
lacs towards terminal benefit and the
widow is entitled to family pension
amounting to Rs.2875/- per month and
the family has immovable assets valued
at Rs.1.25 lacs and three elder daughters
being married, there being only two
members in the family, the financial
condition of the family by no stretch of
imagination can be said to be penury nor
that of destitution.
Case law discussed:
[2001] (2) ESC (All) 876, JT 1994 (2) SC 183,
JT 2007 (3) SC 398, (2006) 7 SCC 350, JT
2007 (3) SC 35.

## Text

466 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
effect
of
a
similar
term
in
the
advertisement of the Commission that
"closing date for the receipt of application
in the Commission Office will be July 14,
1986. Applications received after this date
will not be entertained" and has held that
acceptance of the form would have been
complete only if it had reached "before
the offer had lapsed on the expiry of the
time prescribed." The Division Bench in
Ram Autar Singh's case relied upon a
previous decision of this court in Writ
Petition No. 11224 of 1981 on the point
of agency of the postal authority. For the
reasons given above we are of the view
that the post office in this case was the
agent of the petitioner.

4. Learned counsel for the petitioner,
however, submitted that great injustice
would be done to the petitioner in the
facts of the case, and that the petitioner
should not be penalized for the fault of the
postal department, which is meant to
render public service. We find some merit
in this contention. The peculiar equitable
circumstances in this case are firstly that
the petitioner has already qualified in the
preliminary examination. It is stated at the
Bar that more than one lac candidates had
appeared in this examination, out of
which
only
about
two
thousand
candidates have cleared the preliminary
examination
and
very
meritorious
students would thus lose the chance of
appearing in the main examination.
Secondly the registered letter was sent by
the petitioner on 28.3.2009 by registered
speed post, and it can be inferred that the
petitioner was having a bona fide belief
that in the normal course the letter would
reach its destination within 48 hours. Shri
P.S. Baghel, leaned counsel for the
Commission in all fairness stated that
Commission has informed him that the
postal department gives some assurance
that letter sent by speed post is expected
to be delivered at its destination within 48
hours. Thirdly in this case it also appears
that the letter had in fact reached the U.P.
Public Service Commission on 1st April,
2009. Fourthly, the Commission has yet
not fixed any date for the main
examination and there does not appear to
be any practical difficulty for the
Commission in accepting and processing
the form at this stage.

5. In view of the above facts and
circumstances we direct the Commission
to accept the form of the petitioner if the
same is submitted personally by the
petitioner by 30th May 2009 at the office
of the U.P. Public Service Commission,
Allahabad. We also direct that the benefit
of this order would also be available to all
such candidates who may not have filed
any writ petition but have qualified for the
main examination and whose forms
though sent by registered post latest by
29.3.2009 did not reach the Commission
on time. Such candidates would also be
given benefit of this order if they submit
their forms personally by 30.6.2009.

With the above directions the writ
petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2009

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 20342 of 2000

Sunita Kumari

...Petitioner
Versus
Assistant General Manager and another

 ...Respondents
2 All] Sunita Kumari V. A.G.M.,S.B.I., Varanasi and another
467
Counsel for the Petitioner:
Sri Kamalesh Kumar
Sri Kaushlendra Sonkar

Counsel for the Respondents:
Sri Navin Sinha
Sri Vipin Sinha

Constitution
of
India
Art.
226Compossinate
appointment-petitioner's
father died in harness- working as
Security Guard-rejection of claim as his
mother getting family pension Rs.2875/-
apart from terminate benefits of gratuity
of Rs.3.12 lacs- immovable assets worth
of Rs.3.12 lacs three brothers already
married-cased within the member of
family-for small members of family-can
not be said to be penury on destitution
appointment rightly refused.

Held: Para 13

In view of the fact that the family of the
deceased has been paid a sum of Rs.3.12
lacs towards terminal benefit and the
widow is entitled to family pension
amounting to Rs.2875/- per month and
the family has immovable assets valued
at Rs.1.25 lacs and three elder daughters
being married, there being only two
members in the family, the financial
condition of the family by no stretch of
imagination can be said to be penury nor
that of destitution.
Case law discussed:
[2001] (2) ESC (All) 876, JT 1994 (2) SC 183,
JT 2007 (3) SC 398, (2006) 7 SCC 350, JT
2007 (3) SC 35.

(Delivered by Hon'ble Krishna Murari, J.)

1. Heard learned counsel for the
parties.

2. The writ petition is directed
against the order dated 07.05.1999 passed
by the respondent Bank rejecting the
application of the petitioner claiming
appointment on compassionate grounds.
A
further
relief
of
mandamus
commanding the respondents to appoint
the petitioner on a Class IV post and pay
consequential benefits along with arrears
has also been claimed.

3. Undisputed facts are that the
father of the petitioner, who was a Class
IV employee working as a security guard
with the respondent Bank died-in-harness
on 08.06.1998 leaving behind his wife
and
four
daughters
including
the
petitioner. An application was filed by the
petitioner seeking appointment on a Class
IV post on compassionate ground. All
other legal heirs are stated to have given
their no objection on affidavit for
appointment of the petitioner. Vide letter
dated 07.05.1999, respondent no. 2, the
Branch Manager informed the petitioner
that the competent authority has rejected
the application of the petitioner. The order
passed by the competent authority has
been brought on record by the respondent
Bank in its counter affidavit as Annexure
CA 1. A perusal of the order goes to show
that the claim of the petitioner has been
rejected on the ground that since a sum of
Rs.3.12 lacs has been paid as terminal
benefits towards provident fund, gratuity
and leave encashment etc. and a sum of
Rs.2875/- was liable to be paid as family
pension and the three elder daughters
being married and the size of the family
being very small, the circumstances do
not warrant compassionate appointment,
inasmuch as there was sufficient funds
available with the family of the deceased
to maintain themselves.

4. The Bank has framed a scheme
for appointment of the dependants of the
deceased employees known as Scheme
for
Appointment
on
Compassionate
Grounds for dependants of deceased
468 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
employees/ employees retired on medical
grounds, which came into effect from 1st
of January, 1979 and has been modified
from time to time. The scheme updated on
01.01.1998, prevailing at the time when
compassionate appointment was claimed
by the petitioner, contains a stipulation
that the compassionate appointment was
to be offered only when the Bank was
satisfied that the financial condition of the
family was such, that but for the
provisions of employment, the family
would not be able to meet the crisis and in
making assessment of the financial
condition of the family, the following
factors are prescribed to be taken into
consideration.

(i) Family Pension
(ii) Gratuity amount received
(iii) Employee's Employer's contribution
to Provident Fund
(iv) Any compensation paid by the Bank
or its Welfare Fund
(v) Proceeds of LIC policies and other
investments of the deceased employee
(vi) Income for family from other sources
(vii) Income of other family members
from employment or otherwise
(viii) Size of the family and liabilities, if
any.

5. It has been urged by the learned
counsel for the petitioner that the
provision of family pension and other
terminal benefits received by the family
after death of the employee cannot be
taken to be a good ground for rejecting
the
appointment
on
compassionate
ground, inasmuch as in every case the
terminal benefits are received by the
family and in most of the cases, widow is
entitled to family pension, and as such, no
appointment on compassionate ground
can ever be made and the scheme of the
Bank will have no meaning.

6. In support of the contention,
learned counsel for the petitioner has
placed reliance on a Division Bench
judgment of this Court in the case of
State Bank of India & Ors. Vs. Ram
Piyarey Adult, [2001] (2) ESC (All) 876.

7. In reply, it has been submitted
that under the provisions of the scheme,
compassionate appointment can be made
only in cases where the deceased has left
the family in penury and without any
means of livelihood and the scheme also
provides
factor
to
be
taken
into
consideration while making an assessment
of the financial condition of the family. It
has further been urged that after taking
into consideration all the factors provided
for making an assessment of the financial
condition of the family of the petitioner, it
was found that since a huge sum has been
received towards terminal benefits and
widow would also be entitled to family
pension and the size of the family being
very small, inasmuch as the other three
daughters are married, the petitioner was
not
entitled
for
compassionate
appointment. It has further been submitted
that order has been passed in accordance
with the parameters laid down in the
scheme and, thus, is not liable to be
interfered with.

8. I have considered the argument
advanced by the learned counsel for the
parties and perused the record.

9. It cannot be disputed or doubted
that compassionate appointment cannot be
claimed as a matter of right nor the public
office is heritable. Equally well settled is
the proposition that the Court cannot
2 All] Sunita Kumari V. A.G.M.,S.B.I., Varanasi and another
469
order appointment on compassionate
ground, de hors the provisions of the
statutory regulations and instructions and
the hardship of the candidate does not
entitle him to compassionate appointment
de hors the statutory provisions, as held
by the Hon'ble Apex Court in the case of
LIC Of India Vs. Asha Ramchhandra
Ambekar (Mrs.) & Anr., JT 1994 (2)
SC 183.

10. Hon'ble Apex Court in the case
of State Bank of India & Anr. Vs.
Somvir Singh, JT 2007 (3) SC 398 relied
upon by the learned counsel for the
respondents in support of the contention
that it is not open to the High Court to
interfere in such matters, has observed in
paragraph 13 as under.

"In our considered opinion the High
Court itself could not have undertaken
any exercise to decide as to what would
be the reasonable income which would be
sufficient for the family for its survival
and whether it had been left in penury or
without any means of livelihood. The only
question the High Court could have
adverted itself is whether the decision
making process rejecting the claim of the
respondent
for
compassionate
appointment is vitiated? Whether the
order is not in conformity with the scheme
framed by the appellant-Bank? It is not
even urged that the order passed by the
Competent Authority is not in accordance
with the scheme. It is well settled that the
hardship of the dependant does not entitle
one to compassionate appointment de
hors
the
scheme
or
the
statutory
provisions as the case may be. The
income of the family from all sources is
required to be taken into consideration
according to scheme which the High
Court altogether ignored while remitting
the matter for fresh consideration by the
appellant-Bank. It is not a case where the
dependants of the deceased employee are
left ''without any means of livelihood' and
unable to make both ends meet. The High
Court ought not to have disturbed the
finding and the conclusion arrived at by
the appellant-Bank that the respondent
was not living hand to mouth. As observed
by this Court in General Managaer (D &
PB) and others v. Kunti Tiwary and anr.,
the High Court cannot dilute the criteria
of ''penury' to one of "not very well-todo". The view taken by the Division Bench
of the High Court may amount to varying
the existing scheme framed by the
appellant-Bank.
Such
a
course
is
impermissible in law."

In the case of Union of India & Ors.
Vs. M.T. Latheesh (2006) 7 SCC 350,
the Hon'ble Apex Court has held that
"Specially constituted authorities in the
Rules or Regulations like the competent
authority in this case are better equipped
to decide the cases on facts of the case
and their objective finding arrived at the
appreciation on full facts should not be
disturbed."

11. Reference may also be made to
another decision of the Hon'ble Apex
Court in the case of State Bank of India
& Ors. Vs. Jaspal Kaur, JT 2007 (3) SC
35, wherein while considering an almost
identical situation like the one in case in
hand, it has been held that the competent
authority of the Bank had to consider the
case of the respondents as per the
parameters laid down in the scheme and
specially constituted authorities in the
Rules and Regulations are better equipped
to decide the case on facts of the case and
their objective finding arrived on the
470 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
appreciation of the full facts should not be
disturbed.

12. Reliance placed upon Division
Bench judgment of this Court in the case
of State Bank of India Vs. Ram Piyarey
Adult (supra) by the learned counsel for
the petitioner is totally misdirected as the
said case is clearly distinguishable on
facts.
The
Division
Bench
while
upholding that the Government or the
public authority concerned has to examine
the financial condition of the family of the
deceased and it is only if 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, but on the facts of
the said case, since it was found that
income of the petitioner was not sufficient
to maintain, as such, the order refusing
the appointment on compassionate ground
was held to be unjustified and the
employer was directed to reconsider the
case and to take appropriate decision
considering the financial stringency and
hardship.

The
case
being
clearly
distinguishable on facts has no application
whatsoever.

13. In view of the fact that the
family of the deceased has been paid a
sum of Rs.3.12 lacs towards terminal
benefit and the widow is entitled to family
pension amounting to Rs.2875/- per
month and the family has immovable
assets valued at Rs.1.25 lacs and three
elder daughters being married, there being
only two members in the family, the
financial condition of the family by no
stretch of imagination can be said to be
penury nor that of destitution.

14. The findings recorded by the
competent authority while rejecting the
claim of the petitioner for compassionate
appointment are in accordance with the
parameters laid down by the scheme
framed by the Bank, inasmuch as all the
factors required to be considered while
arriving at a conclusion with respect to
the financial condition of the family have
been taken into account nor any such
thing could be pointed out on behalf of
the petitioner which may go to show that
the findings recoreded by the competent
authority are factually incorrect.

15. For the aforesaid reasons, there
is no scope for interference in the
impugned order. The writ petition,
accordingly, fails and stands dismissed.
However, in the facts and circumstances,
there shall be no order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.03.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Crl. Misc. Application No. 218928 of 2008
In
Crl. Misc. Application No. 19993 of 2008

Rajesh Mishra @ Pappu.
...Applicant

Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Manish Tiwary
Sri Ashwini Kumar Awasthi

Counsel for the Opposite Party:
A.G.A.

Code
of
Criminal
Procedure-S.-482Practice & Procedure-Law laid down by
Hon'ble Supreme Court-binding upon all