2010 (2) TMI 1042 - SC - Indian Laws

Court sets aside old compassionate appointment scheme orders, directs fresh application under new scheme. Bank to process promptly.

The court allowed the appeal, setting aside previous orders directing reconsideration under the old compassionate appointment scheme. The respondent was ... Compassionate appointment is a concession and not a right - scheme in force at the time of consideration governs pending applications - vesting of right requires express provision in the scheme - employer may abolish or modify compassionate appointment schemeScheme in force at the time of consideration governs pending applications - pending applications saved only if scheme so provides - Applicability of the new 'SBI Scheme for payment of ex-gratia lumpsum amount' to applications pending under the earlier compassionate appointment scheme. - HELD THAT: - The Court held that compassionate appointment schemes are concessional arrangements and do not create vested rights outside the terms of the scheme. Where normal schemes require an application, verification of eligibility and availability of posts, entitlement is determined at the time of actual consideration and not merely at the time of filing. If the earlier scheme is abolished and the replacement scheme expressly provides that pending applications shall be dealt with under the new scheme, the new scheme governs those pending applications. The Court applied this principle to the present facts: the new scheme came into force on 4.8.2005 and expressly provided that pending applications would be dealt with under the new scheme, therefore pending applications cease to be governed by the old scheme. [Paras 6, 8, 10]The new scheme which came into force on 4.8.2005 applies to pending applications and the pending application has to be governed by the terms of the new scheme.Compassionate appointment is a concession and not a right - vesting of right requires express provision in the scheme - Whether the respondent was entitled to compassionate appointment under the old scheme. - HELD THAT: - Relying on the settled principle that compassionate appointment is an exception to merit-based recruitment and confers no vested right except as created by scheme provisions, the Court found that mere filing of an application while the old scheme was in force did not confer a right to appointment. The employee died in October 2004, but the application was filed in June 2005 and the scheme was abolished on 4.8.2005; the Bank was therefore justified in treating the matter under the new scheme. The Court rejected the respondent's reliance on prior observations in a different factual context as distinguishable. [Paras 6, 7, 11, 12]The respondent was not entitled to be considered for compassionate appointment under the old scheme; the High Court orders directing reconsideration for compassionate appointment were not justified.Processing of fresh application under new scheme - direction for payment of ex-gratia within fixed time - Relief to be granted to the respondent/family following dismissal of the claim for compassionate appointment. - HELD THAT: - Although the respondent was not entitled to appointment under the old scheme, the Court directed that the respondent and/or family may file a fresh application under the new ex-gratia lumpsum scheme. The Bank was directed to process any such application in accordance with the new scheme and to pay the lump sum ex-gratia amount due to beneficiaries within four months of receipt of the application. [Paras 13]Respondent/family may file a fresh application under the new scheme; Bank to process and pay the ex-gratia lumpsum within four months of receipt.Final Conclusion: The appeal is allowed in part: the High Court orders are set aside; pending applications are to be governed by the new scheme which came into force on 4.8.2005; the respondent has no entitlement to compassionate appointment under the old scheme but may apply under the new ex-gratia scheme and the Bank must process and pay any eligible lump sum within four months of application. Issues:1. Interpretation of the new scheme for payment of ex-gratia lumpsum amount in place of the old compassionate appointment scheme.2. Applicability of the new scheme to pending applications made under the old scheme.3. Consideration of eligibility criteria and availability of posts for compassionate appointment.4. Comparison between automatic appointment schemes and schemes requiring application and verification.5. Determination of the scheme applicable based on the date of application processing.6. Analysis of relevant legal precedents on scheme applicability and vested rights.Issue 1: Interpretation of the new scheme:The judgment dealt with the substitution of the compassionate appointment scheme by the 'SBI Scheme for payment of ex-gratia Lumpsum Amount.' The new scheme abolished the old scheme and provided for payment of ex gratia lumpsum amount. The clauses of the new scheme relevant to the case were analyzed to determine the effect of the scheme substitution.Issue 2: Applicability of the new scheme:The main contention was whether the new scheme, which came into force after the death of the employee and the application for compassionate appointment, should apply to pending applications made under the old scheme. The court examined the language of the new scheme and its provisions regarding pending applications to decide the scheme's applicability.Issue 3: Consideration of eligibility and availability:The judgment highlighted the importance of fulfilling eligibility criteria and the availability of posts for compassionate appointment under the scheme. The court emphasized that appointment on compassionate grounds is a concession, not a right, and is subject to the scheme's rules and conditions in force at the time of application processing.Issue 4: Automatic vs. application-based schemes:A distinction was drawn between schemes providing automatic appointment to family members without conditions and schemes requiring application, eligibility verification, and post availability. The court explained that most schemes involve consideration of multiple applicants and do not guarantee immediate appointment upon application.Issue 5: Determination of applicable scheme:The court clarified that the scheme in force at the time of application processing and consideration is applicable, even if a new scheme replaces the old one during the process. The judgment emphasized that pending applications must be processed under the new scheme if specified in the scheme's provisions.Issue 6: Legal precedents and vested rights:Relevant legal precedents were cited to support the interpretation of scheme applicability based on the date of processing and consideration. The court highlighted that no vested rights accrue until a determination is made, and schemes should be applied as per the prevailing policy at the time of decision-making.In conclusion, the court allowed the appeal, setting aside previous orders directing reconsideration under the old scheme. The respondent was instructed to file a fresh application under the new scheme, with the bank directed to process the application and pay the ex gratia amount within a specified timeframe.