Bank of India & ANR. Vs. Raj Kumar  INSC 172 (8 February 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1641 OF
2010 [Arising out of SLP(C) No.28370 of 2008] STATE BANK OF INDIA & ANR.
... APPELLANTS VS.
... RESPNDENT O R D E R R.V.RAVEENDRAN, J.
Leave granted. Heard the parties.
The respondent's father employed as a Messenger in the Appellant
Bank, died on 1.10.2004. Respondent's mother made applications dated 6.6.2005
and 14.6.2005 requesting for his appointment on compassionate grounds. When the
applications were being processed and verified, the compassionate appointment
scheme was substituted by the "SBI Scheme for payment of ex-gratia Lumpsum
Amount" with effect from 4.8.2005. The new scheme abolished the old scheme
for compassionate appointments and instead provided for payment of an ex gratia
lumpsum amount as per its terms. Clauses 14 and 15 of the new scheme relevant
for our purpose are extracted below:
Date of effect of the Scheme and disposal of pending applications:
pending under the Compassionate Appointment Scheme as on the date on which this
new Scheme is approved by the Executive Committee of the Central Board will be
dealt with in accordance with the new Scheme for payment of ex-gratia lumpsum
amount provided they fulfill all the terms and conditions of this Scheme.
Miscellaneous provisions of the Scheme x x x x x x x x x vi. With effect from
the date the "SBI Scheme for Payment of Ex-gratia Lumpsum Amount"
comes into force the Bank's scheme of compassionate appointments shall be
deemed abolished/withdrawn and no request for compassionate appointment shall
be entertained or considered by the Bank under any circumstance."
As the old scheme came to be abolished and compassionate
appointment was no longer permissible after the new scheme came into force, the
Bank on 31.1.2006 advised the family of the deceased to make an application
under the new scheme for ex-gratia payment. Feeling aggrieved, the respondent
filed a writ petition before the 3 Allahabad High Court. A learned single Judge
of the High Court by order dated 8.5.2008 directed the appellant to reconsider
the case of the respondent for appointment on compassionate grounds, holding that
the old scheme applied and the new scheme was only prospective in operation.
The said order was affirmed by the Division Bench by order dated 1.9.2008,
which is under challenge in this appeal by special leave.
Learned counsel for the Bank submitted that even though the
respondent's father died on 1.10.2004, the application for compassionate
appointment was made only in June 2005; that before the application could be
processed, the compassionate appointment scheme was abolished and was replaced
by a new scheme on 4.8.2005; and that therefore, the Bank was justified in
calling upon the respondent to apply under the new ex-gratia scheme.
On the other hand, learned counsel for the respondent submitted
that on the date of death of his father and on the date of making the
application, the compassionate appointment scheme was in force and therefore,
he was entitled to be considered for compassionate appointment under the said
It is now well settled that appointment on compassionate grounds is
not a source of recruitment. On the other hand it is an exception to the
general rule that recruitment to public services should be on the basis of
merit, by an open invitation providing equal opportunity to all eligible
persons to participate in the selection process. The dependants of employees,
who die in harness, do not have any special claim or right to employment,
except by way of the concession that may be extended by the employer under the
Rules or by a separate scheme, to enable the family of the deceased to get over
the sudden financial crisis. The claim for compassionate appointment is
therefore traceable only to the scheme framed by the employer for such
employment and there is no right whatsoever outside such scheme. An appointment
under the scheme can be made only if the scheme is in force and not after it is
abolished/withdrawn. It follows therefore that when a scheme is abolished, any
pending application seeking appointment under the scheme will also cease to
exist, unless saved. The mere fact that an application was made when the scheme
was in force, will not by itself create a right in favour of the applicant.
Normally the three basic requirements to claim appointment under
any scheme for compassionate appointment are: (i) an application by a dependent
family member of the deceased employee; (ii) fulfillment of the eligibility
criteria prescribed under the scheme, for compassionate appointment; and (iii)
availability of posts, for making such appointment. If a scheme provides for
automatic appointment to a specified family member, on the death of any
employee, without any of the aforesaid requirements, it can be said that the
scheme creates a right in favour of the family member for appointment on the
date of death of the employee. In such an event the scheme in force at the time
of death would apply. On the other hand if a scheme provides that on the death
of an employee, if a dependent family member is entitled to appointment merely
on making of an application, whether any vacancy exists or not, and without the
need to fulfill any eligibility criteria, then the scheme creates a right in
favour of the applicant, on making the application and the scheme that was in
force at the time when the application for compassionate appointment was filed,
will apply. But such schemes are rare and in fact, virtually nil.
Normal schemes contemplate compassionate appointment on an
application by a dependent family member, subject to the applicant fulfilling
the prescribed eligibility requirements, and subject to availability of a
vacancy for making the appointment. Under many schemes, the applicant has only
a right to be considered for appointment against a specified quota, even if he
fulfils all the eligibility criteria; and the selection is made of the most
deserving among the several competing applicants, to the limited quota of posts
available. In all these schemes there is a need to verify the eligibility and
antecedents of the applicant or the financial capacity of the family. There is
also a need for the applicant to wait in a queue for a vacancy to arise, or for
a selection committee to assess the comparative need of a large number of
applicants so as to fill a limited number of earmarked vacancies.
therefore, there can be no immediate or automatic appointment merely on an
application. Several circumstances having a bearing on eligibility, and
financial condition, upto the date of consideration may have to be taken into
account. As none of the applicants under the scheme has a vested right, the
scheme that is in force when the application is actually considered, and not
the scheme that was in force earlier when the application was made, will be
applicable. Further where the earlier scheme is abolished and the new scheme
which replaces it specifically provides that all pending applications will be
considered only in terms of the new scheme, then the new scheme alone will
apply. As compassionate appointment is a concession and not a right, the
employer may wind up the scheme or modify the scheme at any time depending upon
its policies, financial capacity and availability of posts.
In this context we may usefully refer to the decision of this
Court in Union of India vs. R. Padmanabhan - 2003 (7) SCC 270, wherein this
Court observed :
apart, being ex gratia, no right accrues to any sum as such till it is
determined and awarded and, in such cases, normally it should not only be in
terms of the Guidelines and Policy, in force, as on the date of consideration
and actual grant but has to be necessarily with reference to any indications
contained in this regard in the Scheme itself. The line of decisions relation
to vested rights accrued being protected from any subsequent amendments may not
be relevant for such a situation and it would be apposite to advert to the
decision of this Court reported in State of Tamil Nadu vs. Hind Stone and Ors.
- 1981 (2) SCC 205. That was a case wherein this Court had to consider the
claims of lessees for renewal of their leases or for grant of fresh leases
under the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was
of the view that it was not open to the State Government to keep the
applications filed for lease or renewal for a long time and then dispose them
of on the basis of a rule which had come into force later. This Court, while
reversing such view taken by the High Court, held that in the absence of any
vested rights in anyone, an application for a lease has necessarily to be dealt
with according to the rules in force on the date of the disposal of the
application, despite the delay, if any, involved although it is desirable to
dispose of the applications, expeditiously."
also refer to the decision of this Court in Kuldeep Singh v. Govt. of NCT of
Delhi [2006 (5) SCC 702] which considered the question of grant of liquor vend
Court held that where applications required processing and verification the
policy which should be applicable is the one which is prevalent on the date of
grant and not the one which was prevalent when the application was filed. This
Court clarified that the exception to the said rule is where a right had
already accrued or vested in the applicant, before the change of policy.
In this case the employee died in October, 2004, the application
was made only in June, 2005. The application was not even by the respondent,
but by his mother.
it was necessary to ascertain whether respondent really wanted the appointment,
whether he possessed the eligibility, and whether any post was available.
Within two months of the application, the new scheme came into force and the
old scheme was abolished.
scheme specifically provided that all pending applications will be considered
under the new scheme.
it has to be held that the new scheme which came into force on 4.8.2005 alone
will apply even in respect of pending applications.
The respondent relied upon the following observations in State
Bank of India v. Jaspal Kaur - 2007 (9) SCC 571 to contend that he was entitled
to be considered under the old scheme which was in force at the time of the
application by his mother:
in the fact situation of this case, Sri. Sukhbir Inder Singh (late), Record
Assistant (Cash & Accounts) on 01.08.1999, in the Dhab Wasti Ram, Amritsar
branch, passed away. The respondent, widow of Sri. Sukhbir Inder Singh applied
for compassionate appointment in the appellant Bank on 05.02.2000 under the
scheme which was formulated in 2005.
Court also erred in deciding the matter in favour of the respondent applying
the scheme formulated on 04.08.2005, when her application was made in 2000. A
dispute arising in 2000 cannot be decided on the basis of a scheme that came
into place much after the dispute arose, in the present matter in 2005.
the claim of the respondent that the income of the family of deceased is Rs.
5855/- only, which is less than 40% of the salary last drawn by Late Shri.
Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold
observations are read out of context by the respondent. In that case the Bank
employee died on 1.8.1999. Application was filed by the widow on 5.2.2000.
of the widow was considered twice and the request for appointment on
compassionate grounds was declined by taking into consideration the financial
position/capacity of the family. The High Court allowed the writ petition filed
by the widow in 2004 on the ground that the terminal benefits of Rs.4,57,607/-
received by the family were not sufficient for the sustenance of the family. In
an appeal by the Bank, it was contended before this Court that in addition to
Rs.4,57,607/- paid as terminal benefits, the widow was getting Rs.2055/- per
month as family pension and that was not considered by the High Court. During
the hearing before this court, the widow relied upon the new scheme dated
4.8.2005 and sought additional payment in terms of the scheme. The above
observations were made in the context of rejecting the widow's request for
additional payment under the 2005 scheme. In fact, this court allowed the
Bank's appeal and dismissed the writ petition filed by the widow for additional
benefits. The said observations, cannot therefore be of any assistance to
consider the applicability of the old scheme for compassionate appointment
vis-`-vis the new scheme for ex- gratia payment.
The respondent was not entitled to be considered for compassionate
appointment. The High Court was not justified in quashing the communication
dated 31.1.2006 or in directing reconsideration of the case of the respondent
for compassionate appointment.
We therefore allow this appeal in part as follows:
orders of the learned Single Judge and Division Bench are set aside.
respondent and/or his family may file a fresh application under the new scheme,
as directed by the Bank in its letter dated 31.1.2006.
appellant Bank is directed to process such application under the new scheme, if
and when made, and pay the lump sum ex gratia amount due in terms of that
scheme, to the beneficiaries, within four months of the receipt of the
____________________J. (R.V. RAVEENDRAN)
____________________J.(K. S. RADHAKRISHNAN)
February 08, 2010.