TaxTMI 
TaxTMI 
2018 (7) TMI 1885
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....d on July 30, 2007 while she was working in the aforesaid school. The managing committee of the school vide resolution dated August 8, 2007 had decided to recommend and forward the appointment of the petitioner in the category of died-in-harness in place of his deceased mother to the D.I. of Schools. 3. The D.I. of Schools issued the impugned memo rejecting the appointment of the petitioner on the basis that the income of the family of the deceased was more than the initial gross salary of the Group - "D" staff at the material point of time. The relevant portion of the memo is reproduced hereunder: "In connection with the subject noted above it is regretted to state that the financial criteria of the family of the deceased is computed in terms of G.O. No. 697-ES/1S/S- 18/08 dated 09-07-2009. At the material point of time income of the family of the deceased is Rs. 5599/- and initial gross salary of the Group "D" staff of State Govt. is 5326/- as on 30-07-2007 i.e. at the material point of time. As the income of the family is not less than the initial gross salary of the Group "D" staff at the material point of time the prayer for appointment on compassionate ground coul....
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....e was gainfully employed somewhere as a painter. He might be working in his field and might casually be getting work as painter also. Nothing has been indicated in the enquiry report as to where he was employed as a regular painter. The other aspects, on which the officer was required to make enquiries, have been conveniently omitted and not a whisper is found in the report submitted by the officer. In the above circumstances, in our view, the orders passed by the High Court are not sustainable. The respondents have wrongly refused compassionate appointment to the appellant. The inference of gainful employment of the elder brother could not be acted upon. The terminal benefits received by the widow and the family pension could not be taken into account." 7. In the case of Balbir Kaur and Anr. -v- Steel Authority of India Ltd. and Ors. (supra) [Coram: S.B. Majumdar and Umesh C. Banerjee, JJ.] the Supreme Court was dealing with a case in which the Steel Authority of India had rejected the plea for compassionate appointment on the ground that the company had a Family Benefit Scheme as adopted by the employees' union and therefore, the question of any departure from the above sc....
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....enefits specially when the respondent authorities failed to establish that the family of the said deceased employee has sufficient income to maintain themselves." 9. The Learned Government Pleader, appearing on behalf of the State Mr. Joytosh Majumder, has made four submissions before this Court. They are enumerated below: * The order of the D.I. of Schools dated February 11, 2011 is in consonance with the Rules, 2009. * The petitioner has not challenged the validity or the constitutionality of the Rules, 2009 and therefore, his case shall be judged upon the touchstone of the Rules, 2009 and is bound by them. Since, the Rules, 2009 have not been challenged and the order of the D.I. of Schools is in consonance with the Rules, 2009 the petition fails. * The Supreme Court judgements, which the Counsel for the petitioner has relied upon in support of his arguments, have been overruled by two Supreme Court judgments in Union of India and Anr. -v- Shashank Goswami and Anr. reported in (2012) 11 SCC 307 and Union Bank of India and Ors. -v- M.T. Latheesh reported in (2006) 7 SCC 350, which had considered the above mentioned Supreme Court cases and dissented fr....
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....of such family, an income of an amount earned by each family member from any other sources than Provident Fund, Gratuity and 40% of Family Pension of the first seven years or upon the attainment of sixty seven years of age of the deceased teacher had he been alive, whichever is earlier, at the material point of time, shall be taken into account: Provided that if the family of the deceased teacher exceeds five members, the income so computed under this explanation shall be reduced by 20% for each member exceeding five and the amount so arrived at, shall be taken into consideration in computing the income for the purpose of comparing it with the gross salary income of Group 'D' staff at the initial stage at the material point of time." 12. In the case of Shashank Goswami (supra) [Coram: Dr. B.S. Chauhan and Dipak Mishra, JJ.], the Apex Court had deliberated on the matter at hand and had come to a conclusion that the appointment on compassionate grounds cannot be claimed as a matter of right. The Supreme Court relied upon the judgement delivered in Mumtaz Yunus Mulani v. State of Maharashtra reported in (2008) 11 SCC 384 which had overruled the judgement delivered ....
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....ing the dependant of an employee ineligible for the post in case the family receives terminal/retiral benefits above the ceiling limit and held that the judgment in Govind Prakash [(2005) 10 SCC 289 : 2005 SCC (L&S) 590] had been decided without considering earlier judgments which were binding on the Bench. The Court further held that that the appointment has to be made considering the terms of the scheme and in case the scheme lays down a criterion that if the family of the deceased employee gets a particular amount as retiral/terminal benefits, dependant of the deceased employee would not be eligible for employment on compassionate grounds." 13. In the case of M.T. Latheesh (supra) [Coram: Dr. Ar. Lakshmanan and Tarun Chatterjee, JJ.], the Supreme Court had reached the conclusion that the judgement delivered in Balbir Kaur (supra) could be distinguished both on facts as well as law. The relevant paragraphs of the judgement are reiterated below: "18. It is submitted that the dependent of a deceased employee will not get any vested or hereditary right to succeed the deceased in the matter of employment. What he is entitled to is a preferential treatment for appointment ....
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....yment of Gratuity Act and the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and that lump sum payment of provident fund is an insulating factor for the family to cope with the situation arising out of the death of the employee. This Court also held that the socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning and that the law courts cannot be a mute spectator where relief is denied to the horrendous sufferings of a family which has lost its breadwinner and the constitutional philosophy should be allowed to become part of every man's life and then only the Constitution can reach everyone. This is a general observation made by this Court in the context of compassionate appointment. The above judgment, in our view, is distinguishable on facts and on law. This apart, the case on hand is directly covered by the Scheme formulated by the Bank in regard to compassionate appointment. 36. In the present case, by declining the application submitted by the respondent after the proper consideration of the same in the light of the relevant parameters, the appellant Bank cannot be said to have acted in an arbitr....
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....sionate view taken in the decision reported in AIR 1989 SC 1976 (Sushma Gosain Vs. Union of India) to a rather strict view starting from the decision reported in (1994) 4 SCC 138 (Umesh Kumar Nagpal Vs. State of Haryana). It has been held there as follows:- "2. *** 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 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....
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....Court. The Single Judge is also bound by the decisions of the Supreme Court as the same is law under Article 141 of the Constitution of India. In this particular case, the petitioner has contended that I am required to follow the Division Bench judgement of this Court while the Government Pleader has argued that the same should not be followed as the Division Bench judgement relied on judgements of the Supreme Court that were subsequently overruled by the same Court. In order to unravel this conundrum, I embark on an examination of the Doctrine of Precedents. 16. The Supreme Court, in the case of Sundeep Kumar Bafna -v- State of Maharashtra reported in (2014) 16 SCC 623 [Coram: K.S.P. Radhakrishnan and Vikramajit Sen, JJ.], held that when two mutually irreconcilable decisions by the Supreme Court are cited at the Bar, the High Court should follow the view laid down by the earlier judgement as the latter judgement which was delivered without consideration of the previously pronounced judgement by a Bench of co-equal or larger strength should be read as per incuriam. The relevant paragraph of the judgement is delineated below: "19. It cannot be overemphasized that the dis....
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....(3) SCC 230 and Union of India -v- Ajadi Bachao Andolan reported in (2004) 10 SCC 1 were cited at the Bar. The former was a 5-Judge Bench of the Supreme Court while the latter was a subsequent 2-Judge Bench which considered the same matter at hand and dissented from the ratio laid down in McDowell (supra). Justice B. Bhattacharya held that the ratio laid down subsequently by the smaller bench of the Supreme Court must be followed over the earlier judgement by a larger Supreme Court bench, when the former has taken the decision by the larger bench of the Supreme Court into consideration. Furthermore, the view of the subsequent judgement can only be rejected in the event that the subsequent Bench had not taken the decision taken earlier by the larger Bench into consideration. The High Court in such an event would be entitled to reject the ratio laid down in the subsequent smaller Bench judgement as per incuriam. The relevant paragraph of the judgement is provided hereunder: "There is no dispute with the proposition of law that if there are conflict of opinions between the two Benches of the Supreme Court on a question of law, the one declared by the larger Bench would prevai....
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.... faced with a decision of the Court of Appeal manifestly inconsistent with the decisions of this House, is a problem of some difficulty in the doctrine of precedent. I incline to think that it should apply the law laid down by this House, and refuse to follow the erroneous decision." 20. The law as regards the binding nature of the decision of the Court of Appeal and House of Lords is stated thus in Halsbury's Laws of England, 4th Edn., Vol. 37, p. 1242: "The decisions of the Court of Appeal upon questions of law must be followed by Divisional Courts and courts of first instance, and, as a general rule, are binding on the Court of Appeal until a contrary determination has been arrived at by the House of Lords. There are, however, three exceptions to this rule; thus (1) the Court of Appeal is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) it is bound to refuse to follow a decision of its own which, although not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords; and further is not bound by one of its decisions if the House of Lords has decided the case on different grounds, ruling t....
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....n law and I am not bound to follow the same. Subsequently, the Supreme Court in Shashank Goswami (supra) has reiterated the law laid down in Mumtaz Yunus Mulani (supra). Such reiteration further makes the Division Bench judgment in Purnima Giri (supra) distinguishable in law. 23. Furthermore, it is pertinent to note that the Division Bench judgement was delivered prior to the Rules, 2009 coming into force and therefore, the same can be distinguished from the present writ petition on the ground that the Division Bench had no occasion to examine the newly framed Rules, 2009. Such being the case, the Division Bench judgment is distinguishable on facts as well. 24. The view taken by me in the preceding paragraphs on the Doctrine of Precedents is bolstered by the law as laid down by the English Courts and the Supreme Court of India as cited above. Coincidently, faced with a similar fact situation dealing with the Rules, 2009 and predicament on the Doctrine of Precedents the Co- ordinate Bench of this High Court in Sunita Saha (Poddar) (supra) had held that the decision of Balbir Kaur (supra) had lost its efficacy as a binding precedent and following the law as laid down in Shashan....
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....ercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family." 26. After observing the ratio and the legal positions contended by the Counsels appearing on behalf of the parties as well as the precedents examined above, I am persuaded to opine that appointment on compassionate grounds seeks to relieve the immediate financial hardship faced by the dependants of the deceased. It acts as an exception to Articles 14 and 16 of the Constitution as the defendant are given preferential appointment ahead of other equally meritorious candidates similarly placed and hence it cannot be claimed as a right. With the object of appointment on compassionate grounds in mind, it is palpably clear to me that this appointment must be done in accordance with the rules for such appointment. The dependant seeking such appointment must be eligible for such consideration and facing financial hardship to the extent delineated by the rules. 27. In the instant matter, it is to be noted that the District Inspector had rejected the application of the petitioner on the basis that the family pension received by the pe....