# The General Manager (Personnel), Uco Bank, Kolkata & Ors v. Dheeraj Kumar Dixit

- **Citation:** Special Appeal No. 982 of 2002
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-04
- **Case number:** Special Appeal No. 982 of 2002
- **Bench:** Bala Krishna Narayana, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-general-manager-personnel-uco-bank-kolkata-ors-v-dheeraj-kumar-dixit-45163
- **Pages:** 9

## Headnote

Sri D.S.P. Singh

A. Service - Compassionate appointment -
The Court in the writ petition struck down
Clauses 7 and 8 of the Scheme for Recruitment
of Dependents of Deceased Employee on
Compassionate Ground, providing guidelines for
the recruitment, framed by the Bank, while
considering
the
case
of
the
petitionerrespondent for compassionate appointment.
While allowing the present appeal the Court
reversed the judgment and held as follows.

B.
The
ground
which
can
justify
compassionate appointment is the penury
condition of the deceased. And while
considering
penury
condition
for
compassionate appointment, the income
of the bereaved family from various
sources including the gratuity, pension
etc. has to be taken into account - The
total income of the family of the deceased was
more than 60% of the last drawn gross salary of
the
deceased,
therefore
the
petitionerrespondent was not eligible for appointment on
compassionate ground in the bank, as per the
scheme of the Bank. (Para 4, 6, 9, 10, 12)

Appeal allowed. (E-4)

Precedent followed:

## Text

3-5 All. The General Manager (Personnel), Uco Bank, Kolkata & Ors. Vs. Dheeraj Kumar Dixit 1157
establishment/department in question, the
appointment can be sustained or not"
&

Referred
question
no.3
-
"Whether in the absence of post directives
can be issued for ensuring payment of
salary." - So far as the question nos.2 and 3
are concerned, there is no need to answer
these questions as the issues do not arise in
the facts and circumstances of the present
case.

31. The reference is answered,
accordingly.
----------
(2020)03-05ILR A1157
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Special Appeal No. 982 of 2002

The General Manager (Personnel), Uco
Bank, Kolkata & Ors. ...Appellants
Versus
Dheeraj Kumar Dixit ...Respondent

Counsel for the Appellants:
Sri Manoj Misra, Sri Ravi Prakash Pandey,
Sri V.K. Srivastava, Sri Virendra Kumar
Srivastava, Sri R.N. Singh

Counsel for the Respondent:
Sri D.S.P. Singh

A. Service - Compassionate appointment -
The Court in the writ petition struck down
Clauses 7 and 8 of the Scheme for Recruitment
of Dependents of Deceased Employee on
Compassionate Ground, providing guidelines for
the recruitment, framed by the Bank, while
considering
the
case
of
the
petitionerrespondent for compassionate appointment.
While allowing the present appeal the Court
reversed the judgment and held as follows.

B.
The
ground
which
can
justify
compassionate appointment is the penury
condition of the deceased. And while
considering
penury
condition
for
compassionate appointment, the income
of the bereaved family from various
sources including the gratuity, pension
etc. has to be taken into account - The
total income of the family of the deceased was
more than 60% of the last drawn gross salary of
the
deceased,
therefore
the
petitionerrespondent was not eligible for appointment on
compassionate ground in the bank, as per the
scheme of the Bank. (Para 4, 6, 9, 10, 12)

Appeal allowed. (E-4)

Precedent followed:

1. Umesh Kumar Nagpal Vs. St. of Har. & ors.,
JT 1994 (3) SC 525 (Para 6)

2. L.I.C. Vs. Asha Ram Chandra Ambedkar &
anr., JT 1994 (2) SC 183 (Para 6)

3. State of Himachal Pradesh & anr. Vs. Shashi
Kumar, in Civil Suit No. 988 of 2019 dated
16.01.2019 (Para 9, 12)

Appeal against judgment and order dated
31.07.2002, passed in Writ Petition No.
23899 of 2000.

(Delivered by Hon'ble Bala Krishna Narayana, J.
&
Hon'ble Rohit Ranjan Agarwal, J.)

1. Heard Sri Ravi Prakash Pandey,
learned counsel for the appellant.

2. None appears on behalf of the
respondent.

3. This special appeal has been
preferred
by
the
General
Manager
(Personnel) of UCO Bank, Kolkata, and the
Regional Manager, UCO Bank, Bhelpura,
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
District Varanasi, against the judgement
and order dated 31st July, 2002, passed by
learned Single Judge of this Court in Civil
Misc. Writ Petition No.23899 of 2000.

4. The facts of this case as emerging from
the perusal of the pleadings filed before the
Writ Court are that the father of the petitionerrespondent Dhiraj Kumar Dixit was working on
the post of Assistant Cashier in the UCO Bank,
Chowk, Varanasi. He died in harness on
6.2.1997.
The
petitioner-respondent
on
20.5.1997
claimed
appointment
on
compassionate
ground.
His
application
remained pending. He filed writ petition
no.1765 of 2000, which was disposed of by this
Court on 17.1.2000 directing the petitionerrespondent to make a fresh representation,
which was to be decided by the General
Manager (Personnel), UCO Bank, Calcutta.
The petitioner-respondent prepared a fresh
representation and sent it by registered post
alongwith a copy of the order passed by this
court on 29.1.2000 and 1.2.2000. But since the
representation was not decided he sent
reminders on 3.3.2000 and 7.3.2000. The
General Manager by his order dated 19.4.2000
rejected the representation of the petitionerrespondent on the ground that total income of
the family of the deceased was more than 60%
of the last drawn gross salary of the deceased,
therefore, the petitioner-respondent was not
eligible for appointment on compassionate
ground in the bank, as per the scheme of bank.
The petitioner-respondent had challenged
before the Writ Court the Scheme for
Recruitment of Dependants of Deceased
Employee on Compassionate Ground (in brief
Scheme), annexure-1 to the petition and the
order dated 19.4.2000 passed by respondent
no.1, annexure-5 to the writ petition.

5. Before the Writ Court, the petitionerrespondent had urged that the provident fund,
gratuity, family pension, group insurance or
insurance policy cannot be considered for
determining the financial status or family
income of the deceased's family nor it can
furnish a ground for rejecting the claim for
appointment on compassionate ground. It was
also urged that the scheme framed by the Bank
was ultra vires and arbitrary.

6. The stand taken by the respondentappellant Bank before the Writ Court was
that the head office of the Bank had framed
a scheme on 21.9.1999 for recruitment of
dependents of the deceased employees on
compassionate grounds and the norms for
eligibility have been laid down in the
scheme which provides that if the monthly
income of the bereaved family was 60% or
more of the gross salary, the deceased
employee was drawing at the time of his
death, then such cases would not be
considered for compassionate appointment.
The Bank took a further stand that monthly
income of the family of the petitionerrespondent
on
being
calculated
in
accordance with the formula provided in
the scheme, was above 60% of the last
drawn gross salary of the deceased
employee. Hence, the petitioner-respondent
was
not
entitled
for
compassionate
appointment. It was also urged before the
Writ Court that the Bank had framed a
scheme in pursuance of the decision of the
Apex Court In Umesh Kumar Nagpal v.
State of Haryana and others JT 1994(3)
SC 525 in which the Apex Court in
paragraph 7 has laid down that rules or
executive instructions have to be framed by
the
public
authority
for
providing
employment on compassionate ground.
Reliance
was
also
placed
by
the
respondent-appellant Bank on the decision
of the Apex Court in Life Insurance
Corporation of India Vs Mrs. Asha Ram
Chandra Ambedkar and another JT
1994(2) SC 183. He further urged that the
3-5 All. The General Manager (Personnel), Uco Bank, Kolkata & Ors. Vs. Dheeraj Kumar Dixit 1159
High
Court
while
considering
the
appointment on compassionate ground
cannot go behind the scheme framed by the
Bank
for
giving
appointment
on
compassionate ground and no mandamus
can
be
issued
directing
to
make
appointment forbidden under the scheme
framed by the Bank. The scheme neither
suffered from any illegality nor the
petitioner-respondent
was
entitled
for
appointment on compassionate grounds.

7. The learned Single Judge after
considering the submissions advanced before
him by learned counsel for the parties, allowed
the writ petition by the order impugned in this
special appeal.

8. Following paragraphs of the impugned
judgement which are relevant for the purpose of
deciding this special appeal is quoted
hereinbelow :-

"Today most of the service whether
government or inpublic sector or even
otherwise are pension-abe and there is a
provision for family pension. Every employee
from peon in class-IV to head of department in
class-I contributes to Provident Fund, is entitled
to gratuity and is compulsorily insured. If these
amounts which are payable to the family on
death of the employee are clubbed together and
a notional 11% insterest is calculated on it to
arrive at 60% of the gross salary drawn by the
deceased then this would hardly be any
dependant
who
could
be
entitled
for
compassionate appointment.

Family pension is paid to the widow
of the deceased. This is also a social security for
the employee's widow. The calculation of 11%
interest on the amount received by the family of
the deceased and the Family Pension is not
only against the letter and spirit of the apex
court judgement but is contrary to basic
philosophy of socio-economic justice. Further
11% interest was not paid even on Fixed
Deposit Receipts in 1999. Today it is much less.
The provision for calculating 11% interest is,
thus, arbitrary.

For these reasons this writ petition
succeeds and is allowed. Clauses 7 and 8 of the
Scheme for Recruitment of Dependents of
Deceased
Employee
on
Compassionate
Ground annexure-1 to the writ petition are
struck down as arbitrary and irrational.
Consequently, the impugned order dated
19.4.2000 passed by respondent no.1 annexure5 to the writ petition is quashed. The
respondents are directed to consider the
representation of the petitioner afresh within six
weeks and grant compassionate appointment in
Class-III or IV according to his eligibility."

9. It has been contended by learned
counsel for the respondent-appellant that it
has been the consistent view of the Apex
Court that while considering a claim for
compassionate appointment, the income of
the bereaved family from various sources
including the gratuity, pension etc. has to
be taken into account and an appointment
on compassionate ground can only be
provided on the ground which can justify
compassionate appointment is the penury
condition of the deceased family and the
learned Single Judge was not at all justified
in striking down clauses 7 and 8 of the
scheme
providing guidelines
for
the
recruitment of the dependant of the
deceased family on compassionate ground
framed by the Bank. In support of his
aforesaid contentions, learned counsel for
the
respondent-appellant
has
placed
reliance upon by judgement of the Apex
Court rendered in the case of State of
Himachal Pradesh and another v. Shashi
Kumar, in Civil Suit No.988 of 2019 dated
16th January, 2019.
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
10.

Having
considered
the
submissions made by learned counsel for
the respondent-appellant and very carefully
perused the law reports cited by him, we
find that there is force in the submissions
made by him. The Apex Court in the case
of State of Himachal Pradesh and another
(supra) after considering the entire law on
the subject of compassionate appointment,
came
to
the
conclusion
that
while
considering the penury condition of the
bereaved family, the income of the
bereaved family from different sources
including the family pension has to be
taken into consideration.

11. The paragraphs of the
aforesaid judgement which are relevant for
our
purpose
are
being
reproduced
hereinbelow :-

"In view of the clear terms of the
Policy, we are of the view that the High
Court was in error in issuing a mandamus
to the Government to disregard its Policy.
Such direction could not have been issued
by the High Court. The High Court has
drawn sustenance in issuing mandamus in
the above terms on a decision of this Court
in Govind Prakash Verma (supra). That
was a case of compassionate appointment
where in the course of the proceedings
before the High Court, a learned Single
Judge had directed the Life Insurance
Corporation, which was the employer of
the deceased employee, to make an enquiry
and submit a report on whether the
members of the family engaged in gainful
employment were also supporting the
family of the deceased employee. This
Court, in an appeal against the judgment of
the High Court rejecting the petition for
compassionate appointment, observed that
the officer who had enquired into the
matter in pursuance of the order of the
learned Single Judge completely omitted to
furnish any report on the points which were
required by the High Court to be
investigated. The High Court rejected the
petition on the ground that the family was
in receipt of family pension and other
amounts
towards
terminal
benefits.
Reversing the view of the High Court, a
two- Judge Bench of this Court held thus:

"6. In our view, it was wholly
irrelevant for the departmental authorities
and the learned Single Judge to take into
consideration the amount which was being
paid as family pension to the widow of the
deceased (which amount, according to the
appellant, has now been reduced to half)
and other amounts paid on account of
terminal benefits under the Rules..." The
decision in Govind Prakash Verma (supra)
has been considered subsequently in
several decisions. But, before we advert to
those decisions, it is necessary to note that
the nature of compassionate appointment
had been considered by this Court in
Umesh Kumar Nagpal Vs. State of
Haryana4. The principles which have been
laid down in Umesh Kumar Nagpal (supra)
have been subsequently followed in a
consistent line of precedents in this Court.
These principles are encapsulated in the
following extract:

"2. ...As a rule, appointments in
the public services should be made strictly
on the basis of open invitation of
applications and merit. No other mode of
appointment nor any other consideration is
permissible. Neither the Governments nor
the public authorities are at liberty to
follow any other procedure or relax the
qualifications laid down by the rules for the
post. However, to this general rule which is
to be followed strictly in every case, there
are some exceptions carved out in the
interests of justice and to meet certain
contingencies.
3-5 All. The General Manager (Personnel), Uco Bank, Kolkata & Ors. Vs. Dheeraj Kumar Dixit 1161

One such exception is in favour of
the dependants of an employee dying in
harness and leaving his family in penury
and without any means of livelihood. In
such cases, out of pure humanitarian
consideration taking into consideration the
fact that unless some source of livelihood is
provided, the family would not be able to
make both ends meet, a provision is made
in the rules to provide gainful employment
to one of the dependants of the deceased
who may be eligible for such employment.
The
whole
object
of
granting
compassionate employment is thus to
enable the family to tide over the sudden
crisis. The object is not to give a member of
such family a post much less a post for post
held by the deceased. What is further, mere
death of an employee in harness does not
entitle his family to such source of
livelihood. The Government or the public
authority concerned has to examine the
financial condition of the family of the
deceased, and it is 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. The posts in Classes
III and IV are the lowest posts in nonmanual and manual 4 (1994) 4 SCC 138
categories and hence they alone can be
offered on compassionate grounds, the
object being to relieve the family, of the
financial destitution and to help it get over
the
emergency.
The
provision
of
employment in such lowest posts by making
an exception to the rule is justifiable and
valid since it is not discriminatory. The
favourable
treatment
given
to
such
dependant of the deceased employee in
such posts has a rational nexus with the
object sought to be achieved, viz., relief
against destitution. No other posts are
expected or required to be given by the
public authorities for the purpose. It must
be remembered in this connection that as
against the destitute family of the deceased
there are millions of other families which
are equally, if not more destitute. The
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 expectations, and
the change in the status and affairs, of the
family
engendered
by
the
erstwhile
employment which are suddenly upturned."
Specifically in the context of considering
the financial circumstances of the family of
the deceased employee, several judgments
of this Court have elaborated on the
principles to be followed.

The decision in General Manager
(D&PB) Vs. Kunti Tiwary5 involved an
interpretation of an office memorandum
dated 7 August 1996 circulated to all banks
in the light of the decision in Umesh Kumar
Nagpal
(supra).
The
Indian
Banks
Association adopted the directions of this
Court in the Scheme which was proposed
for the appointment of heirs of deceased
employees. The Scheme contemplated that
in order to determine the financial
condition of the family, the following
amounts would have 5 (2004) 7 SCC 271 to
be taken into account:

"7...(a) Family pension.

(b) Gratuity amount received.

(c)
Employee's/employer's
contribution to provident fund.

(d) Any compensation paid by the
Bank or its Welfare Fund.

(e) Proceeds of LIC policy and
other
investments
of
the
deceased
employee.

(f) Income of family from other
sources.

(g) Employment of other family
members.

(h) Size of the family and
liabilities, if any, etc." Eventually, this
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
recommendation was accepted in the
Scheme.
In
the
light
of
these
recommendations and the Scheme, this
Court observed that where the family of a
deceased employee was not left without
means
of
livelihood,
the
claim
for
compassionate appointment could not be
sustained. It may be noted that in that case
it was on a review of the overall financial
position of the family, including amounts
received towards terminal benefits that the
decision was taken.

The decision of this Court in
Punjab National Bank Vs. Ashwani Kumar
Taneja6 followed the same principle. While
reiterating the view which was taken in
Kunti Tiwary (supra), this Court held that
the Scheme specified the amounts which
were
required
to
be
taken
into
consideration.

The decision in State Bank of
India Vs. Somvir Singh7 has noticed the
scheme for appointment of dependants of 6
(2004) 7 SCC 265 7 (2007) 4 SCC 778
deceased employees on compassionate
grounds framed by the State Bank of India.
The
Court
expressly
held
that
the
authorities were not in error in taking
account
of
the
terminal
benefits,
investments and the monthly family income
including the family pension paid by the
Bank. The view of this Court finds
expression in the following extract:

"12. The competent authority
while considering the application had taken
into consideration each one of those factors
and accordingly found that the dependants
of the employee who died in harness are
not in penury and without any means of
livelihood. The authority did not commit
any error in taking the terminal benefits
and the investments and the monthly family
income including the family pension paid
by the Bank into consideration for the
purposes of deciding as to whether the
family of late Zile Singh had been left in
penury or without any means of livelihood.
The scheme framed by the appellant Bank
in fact mandates the authority to take those
factors into consideration. The authority
also did not commit any error in taking into
consideration the income of the family from
other sources viz. the agricultural land."
(emphasis supplied) In the view of this
Court, the only issue to be considered was
whether the claim for compassionate
appointment had been considered in
accordance with the Scheme. The income of
the family from all sources was required to
be taken into consideration according to
the Scheme. This having been ignored by
the High Court, the appeal filed by the
Bank was allowed.

The judgment of a Bench of twoJudges in Mumtaz Yunus Mulani Vs. State
of Maharashtra8 has adopted the principle
that
appointment
on
compassionate
grounds is not a source of recruitment, but
a means to enable the family of the
deceased to get over a sudden financial
crisis. The financial position of the family
would need to be evaluated on the basis of
the provisions contained in the Scheme.
The decision in Govind Prakash Verma
(supra) has been duly considered, but the
Court observed that it did not appear that
the earlier binding precedents of this Court
have been taken note of in that case.

In Union of India Vs. Shashank
Goswami, this Court considered a circular
issued by the Office of the Comptroller and
Auditor General of India in terms of which
the total income of the family from all
sources,
including
terminal
benefits
received, was required to be taken into
account. Income limits were specified in the
circular for Group ''B', Group ''C' and
Group ''D' posts. Taking note of the fact
that a family pension has been authorized
to the widow of the deceased employee, this
3-5 All. The General Manager (Personnel), Uco Bank, Kolkata & Ors. Vs. Dheeraj Kumar Dixit 1163
Court held that the case of the dependant
did not fall within the income limits meant
for Group ''C' posts.

The same principle has been
reiterated in another decision of a Bench of
two-Judges of this Court in State Bank of
India Vs. Surya Narain Tripathi10. 8
(2008) 11 SCC 384 9 (2012) 11 SCC 307
10 (2014) 15 SCC 739 While adverting to a
submission of learned counsel based on the
decision in Govind Prakash Verma (supra),
this Court noted thus:

"8. He relied upon the judgment
of this Court in Govind Prakash Verma v.
LIC[Govind Prakash Verma v. LIC, (2005)
10 SCC 289 : 2005 SCC (L&S) 590] where
a
view
has
been
taken
that
the
compassionate appointment cannot be
refused on the ground that another member
of the family had received appropriate
employment and the service benefits were
adequate. We may humbly state that this
view runs counter to the view which was
taken earlier in Umesh Kumar Nagpal
[Umesh
Kumar
Nagpal
v. State
of
Haryana, (1994) 4 SCC 138 : 1994 SCC
(L&S) 930 : (1994) 27 ATC 537] which
was not cited before the Court in Govind
Prakash [Govind Prakash Verma v. LIC,
(2005) 10 SCC 289 : 2005 SCC (L&S) 590]
. The subsequent two judgments which were
referred above also take the same view as
in Umesh Kumar Nagpal[Umesh Kumar
Nagpal v. State of Haryana, (1994) 4 SCC
138 : 1994 SCC (L&S) 930 : (1994) 27
ATC 537] . Mr Vikas Singh has drawn our
attention to the judgment in SBIv. Somvir
Singh [SBI v. Somvir Singh, (2007) 4 SCC
778 : (2007) 2 SCC (L&S) 92] where the
1998 Scheme has been considered.

9.
In
all
the
matters
of
compassionate appointment it must be
noticed that it is basically a way out for the
family which is financially in difficulties on
account of the death of the breadearner. It
is not an avenue for a regular employment
as such. This is in fact an exception to the
provisions
under
Article
16
of
the
Constitution. That being so, if an employer
points out that the financial arrangement
made for the family subsequent to the death
of the employee is adequate, the members
of the family cannot insist that one of them
ought to be provided a comparable
appointment. This being the principle
which has been adopted all throughout, it
is difficult for us to accept the submission
made on behalf of the respondent." Now, it
is in this background that it would be
necessary to advert to the decision in
Canara Bank (supra). A Scheme for
compassionate appointment of 8 May 1993
was prevalent in Canara Bank when the
employee died on duty in October 1998.
Faced with the rejection of an application
for compassionate appointment, the High
Court was moved in a Writ Petition in
which a learned Single Judge issued a
direction for reconsideration of the claim
for appointment. During the pendency of
the appeal before the Division Bench, the
Scheme for compassionate appointment
was replaced by a new Scheme providing
for ex gratia in lieu of appointment. The
main issue which fell for consideration
before
this
Court
was
whether
the
subsequent Scheme which was formulated
in 2005 providing for ex gratia payment
would govern or whether the application
would have to be disposed of on the basis
of the earlier Scheme of 1993. It may be
noted
that
the
application
for
compassionate appointment in that case
had been rejected on the ground that the
family of the respondent was not in indigent
circumstances, as required by the Scheme
for compassionate appointment of 1993.

Dealing with the applicability of
the subsequent Scheme, a Bench of twoJudges of this Court held, following the
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
earlier decision in State Bank of India Vs.
Jaspal Kaur11, that the cause of action to
be
considered
for
compassionate
appointment arose when the earlier Scheme
was in force. Hence, the claim could not be
decided on the basis of the subsequent
Scheme which 11 (2007) 9 SCC 571
provided only for the payment of ex gratia.
Moreover, as a matter of fact, the
subsequent scheme was superseded in 2014
by reviving the Scheme for the provision of
compassionate appointment.

Hence, the issue which has been
dealt with in Canara Bank (supra) is
whether the application for grant of
compassionate appointment could have
been rejected on the basis of a scheme
which had come into force after the date of
submission of the application. That, as this
Court observed, was the main question
which fell for consideration. The Bench of
two-Judges, however, also noted that it was
urged on behalf of the appellant - Bank that
the family of the respondent was in receipt
of family pension. This, the Court held, was
of no consequence in considering the
application
for
compassionate
appointment.

Learned
senior
counsel
appearing on behalf of the appellants has
sought
to
distinguish
the
above
observations, in the judgment in Canara
Bank (supra), by submitting that it is not
the case of the State of Himachal Pradesh
that mere receipt of family pension would
disable an applicant from submitting an
application for compassionate appointment
or preclude consideration of the claim. On
the contrary, the submission which is urged
is that the Scheme requires consideration
of all relevant sources of income and
hence, receipt of family pension would be
one of the criteria which would be taken
into consideration in determining as to
whether the family of the deceased
employee is in indigent circumstances.

We find merit in this submission,
for the simple reason, that it is in accord
with the express terms of the Scheme of 18
January 1990, as modified by the State. The
Scheme contemplates that payments which
have been received on account of welfare
measures provided by the State including
family pension are to be taken into account.
Plainly, the terms of the Scheme must be
implemented.

For these reasons, we have come
to the conclusion that the High Court was
not justified, based on the decision in
Govind Prakash Verma (supra) in issuing a
direction to the State to act in a manner
contrary to the express terms of the Scheme
which require that the family pension
received by the dependants of the deceased
employee be taken into account.

That leads the Court to the next
aspect of the matter relating to the fixation
of an income slab. In our view, the fixation
of an income slab is, in fact, a measure
which dilutes the element of arbitrariness.
While, undoubtedly, the facts of each
individual case have to be borne in mind in
taking a decision, the fixation of an income
slab subserves the purpose of bringing
objectivity and uniformity in the process of
decision making. The High Court was of
the view that it was not open to the Finance
Department to amend the Scheme. The
circulars which are issued by the Finance
Department cannot be construed to be an
amendment of the policy. They are really
clarificatory of the intent and purpose of
the Scheme. The circulars are explanatory,
since they are intended to guide the
decision maker on the concept of indigency
which is incorporated in the Scheme. In
fact, as we have noted earlier, in the
decision
of
this
court
in
Shashank
Goswami(supra),
the
Court
was
3-5 All. Vinod Kumar Sharma, Distt. Inspector of Schools, Azamgarh & Anr. Vs.Shiv Mohan
Dwivedi, Assistant Teacher, Inter College, Sarai Brindaban, Azamgarh
1165
specifically dealing with a circular of the
Comptroller and Auditor General of India
which
had
imposed
income
limits
respectively for Group ''B', ''C' and ''D'
posts for the purpose of guiding the
decision in the case of compassionate
appointment. The fixation of income limits
was not construed to be and is not an
arbitrary exercise of power. However, what
we find from the record of this case is that
the income limit was fixed (as the High
Court observed) on 29 September 2008 by
the letter of the Finance Department. The
income limit of Rs.1,00,000/- for a family of
four persons has since been revised to
Rs.1,50,000/- on 20 April 2011. Mr. P.S.
Patwalia has, on instructions, stated before
this Court that this ceiling has been
reiterated on 27 July 2017. What should be
the
appropriate
income
criterion
is
undoubtedly a matter of policy for the State
Government to determine. However, we
would impress upon the State Government
the need to periodically revise the income
limits preferably at intervals of three years.
Inflation and the increase in the cost of
living have an important bearing on
financial exigencies faced by families of
serving as well as deceased employees. In
fixing the income criteria for considering
cases of compassionate appointment, it
would be appropriate if the State revisits
the income limit at periodic intervals, as we
have indicated above. We clarify that it
would be open to the State to revise the
income limits at a frequency of less than
three years, if the State is so advised."

12. Thus, in view of the guidelines
laid down by the Apex Court in the case of
State of Himachal Pradesh and another v.
Shashi
Kumar
(supra)
and
the
pronouncement made in Clauses 7 and 8 of
the scheme of recruitment of dependants of
deceased employees on compassionate
ground
which
provide
that
while
considering the claim for compassionate
appointment under the scheme, the income
of the bereaved family from sources
specified in the scheme is required to be
taken
into
consideration,
are
neither
unreasonable nor suffer from the vice of
arbitrariness. Thus, we find that the view
taken by learned Single Judge is wholly
untenable and cannot be sustained. In our
opinion, the learned Single Judge was not
at all justified in striking down Clauses 7
and 8 of the scheme.

13. We accordingly allow the appeal
and set aside the impugned order passed by
learned Single Judge to the extent it seeks
to strike down Clauses 7 and 8 of the
scheme.

14. However, we leave it open to
appellant to consider and examine the
claim of the petitioner-respondent on
compassionate
ground
strictly
in
accordance with the provisions of the
scheme.
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(2020)03-05ILR A1165
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2020

BEFORE

THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 1225 of 2019

Vinod Kumar Sharma, Distt. Inspector of
Schools, Azamgarh & Anr. ...Appellants
Versus
Shiv Mohan Dwivedi, Assistant Teacher,
Inter College, Sarai Brindaban, Azamgarh
 ...Respondent