In CA 624 OF 2017 -SC- Eligibility for compassionate appointment must be as per the applicable scheme and the Courts cannot substitute a scheme or add or subtract from the terms thereof in exercise of judicial review, reiterates Supreme Court
Justice B.V. Nagarathna and Justice Manoj Misra [21-06-2023]

Read More: Bank Of Baroda v. Baljit Singh

Simran Singh

New Delhi, June 27, 2023: The Supreme Court allowed the challenge preferred by the appellant Bank against the judgement passed by the Punjab and Haryana High Court in a case where the respondent had sought declaration and mandatory injunction vis-a-vis his appointment in the appellant-Bank on compassionate basis. The Supreme Court was of the view that the High Court was not right in answering the questions of law in favour of the respondent and thereby, set aside the judgment of the First Appellate Court and restored the judgment of the Trial Court.

The Division Bench comprising of Justice B.V. Nagarathna and Justice Manoj Misraheld that the High Court ought to have taken into consideration the factual details rather than just referring to the judgments in answering the questions of law.

The Bench considered the issue regarding the consideration of the financial position of the respondent vis-a-vis the eligibility to be considered for appointment on compassionate grounds and perused the relevant clauses of the Scheme and noted the details submitted with regard to the deceased employee and his dependent’s income. The income of the widow of the deceased was Rs.6,845/- per month (basic pay of Rs.4140/- per month) as she was employed in the Health Department of the State Government, and her family pension was Rs.3,478/- per month. Thus, the gross total income of the family per month came to Rs.10,323/- and the net income was Rs.7,618/- per month. After applying the formula to the case of the respondent, the Court found that the monthly income so arrived at was not less than 60% of the total emoluments and thus, the case of the respondent could not be considered on compassionate basis on that score. The total emoluments of the deceased father of the respondent were Rs.3,210/- per month at the time of his death which was lesser than the total net income of the deceased’s family. Thus, the total income of the family was not less than 60% of the total emoluments which the deceased was drawing at the time of his death as per the Scheme under consideration.

The Bench took note of the fact that the respondent, during the course of the argument had clarified that he was eligible to be considered for the post of Peon as he had passed 8th standard during the life time of his father and thus, was eligible to be considered to the said post as on the date on which he made the said application. However, the Court sated that “We do not think that the said argument would be of assistance to the respondent inasmuch as the respondent is not qualified or is eligible to be considered for said post on compassionate basis having regard to the family income of the respondent.”

In the matter at hand, the High Court had set aside the judgement of the First Appellate Court passed in a Civil Appeal and restored the judgment of the Trial Court passed in Original Suit. The respondent’s father who was working in the appellant-Bank and had died in harness on 16.05.1999. As on that date, the appellant-Bank had a Scheme in place for appointment of dependents of the deceased employees on compassionate grounds which was issued on 18.08.1998.

The Bench was of the view that the appointment of a candidate on compassionate basis did not create any vested right and that it was only when a candidate was covered under all clauses of the Scheme applicable at the relevant point of time that he/she could be considered for compassionate appointment.

The Court referred to the case of Balbir Kaur v. Steel Authority of India Ltdand stated that the said judgment could be distinguished from the facts of the instant case as the 1998 Scheme specifically disentitled a candidate for compassionate appointment benefit on the application of the formula for calculation of monthly income if the same was less than 60% of the total emoluments which the deceased was drawing at the time of his death. The object was that it was only when a deceased employee’s family was in penury and without any source of livelihood when the employee died in harness, compassionate appointment could be considered. Since appointment on compassionate basis was an exception to the general rule for appointment by an open invitation, the exception had to be resorted to only when the candidate and his family was in penury so as to provide immediate succor on the death of the employee in harness. Therefore, the case for compassionate appointment had to be considered in accordance with the prevalent Scheme.

The Court referred to the case of State of Himachal Pradesh v. Parkash Chand , wherein it had been categorically held that a direction by a High Court to consider cases for compassionate appointment dehors the terms of the policy was impermissible as it would amount to re-writing the terms of the policy. This aspect had been overlooked by the High Court in the instant case.

Further the bench went on to navigate the case of Indian Bank v. Promilawherein it had been observed that eligibility for compassionate appointment must be as per the applicable scheme and the courts could not substitute a scheme or add or subtract from the terms thereof in exercise of judicial review.

The Bench stated it was not in dispute between the parties that the Scheme dated 18.09.1998 which had been issued by way of a Circular was applicable to the case of the respondent.Under the said Scheme, both the educational qualification as well as qualification vis-a-vis the income of the candidate making an application for compassionate appointment had been prescribed and they were to be considered by the employer.

The Bench noted that the High Court while considering the issue whether the case of the appellant could be considered for compassionate employment vis-a-vis the Scheme which was in vogue at the time when Balbir Singh died or subsequent to that and whether the advancement of family pension could be the ground for non-suiting the case of compassionate employment simply stated that the effective date of consideration of the application for compassionate appointment would be the date on which the respondent’s father died. The High Court had stated that the 1998 Scheme was in force as on the date when the respondent’s father died and, therefore, the said Scheme would be applicable. However, the Court found that while answering the questions of law, the High Court had erred on both counts.