AI Drafter 
TaxTMI 
TaxTMI 
2009 (10) TMI 987
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....; OR The policy prevailing at the time of consideration of the application for compassionate appointment? Facts, in brief, are that the Respondent, Manoj Kumar Deharia, filed a writ petition before Appellant claiming compassionate appointment and seeking quashment of an order-dated 31.5.2004 passed by the Appellant-bank, rejecting his claim. It was the case of the Respondent that his father, Late Lochan Singh Deharia, while working as a clerk, died in harness on 1.11.1996. On 28.11.1996, he submitted an application seeking compassionate appointment to the Appellant. The Branch Manager of the bank concerned forwarded the said application to the Regional Office on 19.2.1997. When the application was submitted on 28.11.1996, the Scheme for compassionate appointment in the Bank was in accord with the Circular/Policy dated 25.1.1989. However, with effect from 27.2.1997 a New Policy came into existence and by the time the Respondent's application, forwarded on 19.2.1997 by the Branch Manager reached the Regional Office, the New Policy dated 27.2.1997 had come into force. Accordingly, the Appellant Bank con....
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....ppointment to public service is on merit and through open invitation. This is the general and normal route through which one can get into public employment. However, every rule has exceptions and it is true for employment to public service also, and these exceptions are required to be evolved to meet certain exceptional contingencies. One such exception is to grant appointment to dependants of a deceased employee by accommodating the said person in a suitable vacancy. It is held by the Supreme Court that the object of granting such an appointment is to give succour to the family, which has been suddenly plunged into penury due to untimely death of the sole breadwinner. It has been held and cautioned by the Supreme Court in the aforesaid case that the object of providing such an ameliorating relief should not be taken as opening an alternative mode of recruitment to public service. After taking note of the principle laid down in the case of Hakim Singh (supra), Supreme Court in the case of Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998) 5 SCC 192, has laid down the following dictum: 8. The object underlying a provision for gran....
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.... justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent 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 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 status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. (Emphasis supplied) The concept of granting compassionate appointment and the purpose of granting the same has been the subject matter of adjudication in various cases and therefore, it would be relevant at this stage to refer to some of the decisions in the field. In Commissioner of Public Instructions and Ors. v. K.R. Vishwanath (2005) 7 SCC 206, after following the earlier principle....
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....d requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. (Emphasis supplied) In State of J and K and Ors. v. Sajad Ahmed Mir, (2006) 5 SCC 766, after taking note of the judgments rendered earlier in the cases of Rani Devi (supra), Asha Ramchandra Ambekar (supra) and Umesh Kumar Nagpal (supra), it has been so held by the Supreme Court: 11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought 'compassion', the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply ....
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....ven on descent. When such an exception has been carved out by Appellant, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion. (Emphasis supplied) In National Institute of Technology v. Niraj Kumar Singh this Court has stated the law in the following terms: (SCC p. 487, para 16) 16. All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit....
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....od. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. From the enunciation of law laid down therein, it is clear that employment to government and other public services should be open to all eligible candidates and by open competition on merit. This is in consonance with the mandate of Articles 14 and 16 of the Constitution. This general rule can be departed from only when compelling circumstances demand and one such circumstance is the death of the sole breadwinner of a family. However, it is held by the Supreme Court that appointment on compassionate ground is governed by Rules and Regulations or Scheme and taking into consideration instructions framed in this regard and the same should confirm to the requirement of Articles 14 and 16 of the Constitution. That apart, the principles clearly indicates that grant of compassionate appointment is not a right, vested in nature, available to a person. It is a benefit granted dehors the ....
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....r. v. Vikas Dubey and Ors. [Civil Appeal No. 7003 of 2005]; M.P. Ram Mohan Raja v. State of TN and Ors. (2007) 9 SCC 78; and, State Bank of India and Ors. v. Jaspal Kaur (2007) 9 SCC 571. Inviting our attention to the principles laid down in P. T. R. Exports (Madras) Pvt. Ltd. and Ors. v. Union of India AIR 1996 SC 3461 and State of Tamil Nadu v. M/s Hind Stone etc. AIR 1981 SC 711, Shri Shroti submitted that when grant of a benefit is based on certain policies or schemes formulated by the Government or public sector undertakings, then any person claiming benefit of such Policy or Scheme is entitled for consideration on the basis of the Policy or Scheme as is in existence at the time of consideration. It is further submission that as compassionate appointment does not confer any vested right, it is akin to grant of a license or a lease as per a Policy and in that view of the matter, such grant can be made only on the basis of the Policy prevailing on the date when the grant is to be made and not on the basis of a Policy which has been changed. Refuting the aforesaid contentions and pointing out that grant of compassionate appointment is made to tide over the crisis that has f....
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..... Reliance is also placed by Shri R.K. Sanghi on another judgment of the Supreme Court, in the case of State Bank of India and Ors. v. Jaspal Kaur (2007) 9 SCC 571, and the observations made in paragraph 26 of the aforesaid judgment: Finally in the fact situation of this case, Shri Sukhbir Inder Singh (late), Record Assistant (Cash and Accounts) on 1.8.1999, in the Dhab Wasti Ram, Amritsar Branch, passed away. The Respondent, widow of Shri Sukhbir Inder Singh applied for compassionate appointment in the Appellant Bank on 5.2.2000 under the scheme which was formulated in 2005. The High Court also erred in deciding the matter in favour of the Respondent applying the scheme formulated on 4.8.2005, 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. Therefore, the claim of the Respondent that the income of the family of the 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 water. After the case was closed for judgment ....
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....eath of the breadwinner. In Smt. Sushma Gosain (supra), it has been held by the Supreme Court that this being the purpose of granting compassionate appointment, such appointments should be provided immediately to redeem the family, which is in distress. In I.G. (Karmik) (supra), it is observed by the Supreme Court that appointment on compassionate grounds is made for the purpose of mitigating the hardship of the family and is not a process for providing endless compassion. It is also clear from the principles laid down that appointment on such grounds' is an exception carved out contrary to the constitutional mandate and no vested right accrues to any person to claim such an appointment. In State of Haryana v. Ankur Gupta (2003) 7 SCC 704, it has been held by the Supreme Court that it is necessary for the authorities to formulate regulations or schemes in such a manner that they withstand the test of Articles 14 and 16, because appointment on compassionate grounds cannot be claimed as a matter of right, but it has to be evolved in such a manner that the Scheme is formulated taking into consideration the financial conditions of the family of the deceased and the means of live....
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....e in the organization and various other factors relevant for deciding the question of granting compassionate appointment. That being so, the employer is granted liberty to formulate a Policy in such a manner that the same caters to the requirement, as may be existing from time to time and the employer should have an opportunity to change his policy with regard to compassionate appointment depending upon various factors that may also change from time to time. In Punjab National Bank and Anr. v. R. Latha [W.A. (MD) No. 411/2006 and W.A.M.P. (MD) No. 1/2006 dated January 8, 2007], Madras High Court considering the decisions in the case of P.T.R. Exports (supra) and M/s Hind Stone (supra) has held that right to compassionate appointment is neither a fundamental right nor a legal right. It is only an exception to the general rule and that being so, the same has to be decided as per the Scheme which comes into operation and which is prevalent at the time of consideration and not on the basis of an earlier Scheme, which has been changed. It is submitted by Shri Sanghi that the controversy has been put to rest by the Supreme Court in the case of Jaspal Kaur (supra). On a close scruti....
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....e Bank declined the claim of the dependent and the High Court decided the matter for the first time in the year 2002. The case before the Supreme Court was one in which the claim was decided by the Bank in accordance to the Scheme of 2000 and directions were issued by the High Court in two writ petitions, after evaluating the matter in accordance to the Scheme prevailing when the dispute arose in the year 2000 and 2002. Therefore, in the light of the aforesaid peculiar factual aspect of the matter the observations and directions were issued in paragraph 26. The same cannot be construed to be a legal principle laid down by the Supreme Court to be applicable in all cases. It is the considered view of Appellant that the observations made in paragraph 26, relied upon by Shri R.K. Sanghi, is based on the factual situation that was existing in the case before the Supreme Court i.e. the decision of the Bank dated 7.1.2002 after evaluating the claim as per the policy of 2000 and further direction of the High Court to reconsider the matter much before the Scheme of 2005 came into existence. Accordingly, the said judgment also does not help the Appellant. In this context, we fruitfully st....
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....p; 'Lord Atkin's speech... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances.' (All ER p. 297g). Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) (1971) 1 WLR 1062, observed (All ER p. 1274d): One must not, of course, construe even a reserved judgment of even Russell, L.J. as it were an Act of Parliament; And, in British Railways Board v. Herrington 1972 AC 877, Lord Morris said: (All ER p. 761c) There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classic's: &nbs....
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....r facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. Yet in another decision in Rajbir Singh Dalai (Dr.) v. Chaudhari Devi Lal University, Sirsa and Anr. (2008) 9 SCC 284, their Lordships have opined thus: 34. The decision of a Court is a precedent if it lays down some principle of law supported by reasons. Mere casual observations or directions without laying down any principle of law and without giving reasons does not amount to a precedent. In State of Punjab v. Baldev Singh (1999) 6 SCC 172, a Constitution Bench of Appellant observed (vide SCC para 43) that a decision is an authority for what i....
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....ing in view the scheme when the application was submitted. A ratio of a decision as has been held their Lordships, is not to be understood by inference. In a given case, the employer as stated by Shri R.K. Sanghi and as observed by the Division Bench in the case of T. Swamy Dass (supra), may cause undue delay without any just cause or reason or with some ulterior motive. Thought on a first glance the submission looks quite attractive, but on deeper scrutiny and reflective consideration it cannot be held, as a principle of law, that the claim of compassionate appointment has to be decided on the basis of the Policy that was prevailing at the time of submission of the application. Be it noted Shri R.K. Sanghi has commended us to the decision in Balbir Kaur v. Steel Authority of India Limited (2000) 6 SCC 493. The decision in that case is based on a right, which accrued to the claimant for grant of compassionate appointment on the basis of a tripartite agreement entered into by the Management of Steel Authority of India Limited. The agreement was binding on the parties and when compassionate appointment was denied on the ground of monetary compensation being provided which was foun....