Service Law – Compassionate appointment – Principles applicable to the cases of – In the appellant-Bank, scheme was brought into force for compassionate appointment on 04.04.79 – New Scheme was promulgated on 05.11.85 which in effect continued the old Scheme – Person appointed as Clerk-cum-Shroff in the Bank – Died on 15.1.04 – Survived by his wife (respondent no.1 and three minor children, one of the son being respondent no.2) – Application made on behalf of respondent no.2, when he was minor, seeking compassionate employment – Post the said application, new Scheme was brought into force w.e.f. 27.04.04, in supersession of the previous Scheme – One of the condition for such Scheme was that the monthly income of the family (including terminal benefits, insurance claims, investments, etc. as well as pension and spousal income) was less than 60% of the last drawn gross salary, net of taxes, of the deceased employee – Respondents did not apply under the new Scheme – Also, respondent no.1’s gross salary declaration only on 17.02.06 crossed the benchmark of 60%, thus they were informed that even cash compensation was not available to them and that there could be no question of compassionate appointment – Respondents sought compassionate appointment under the 2004 Scheme, upon the respondent no.2 attaining age of majority – High Court granted Rs.2 lakh ex gratia payment, leaving open to the respondents to make appropriate application regarding any terminal benefits, if not paid – Held: Compassionate appointment is not an alternative to the normal course of appointment – There is no inherent right to seek compassionate appointment – Question of applicability of any subsequent Scheme really does not apply in view of the judgment of Supreme Court in Canara Bank – Thus, it would not be appropriate to examine the case of the respondents in the context of subsequent Schemes, but only in the context of the Scheme of 4.4.1979, the terms of which continued to be applicable even as per the new Scheme of 5.11.1985, i.e. the Scheme applicable to the respondents – There is no provision in this Scheme for any ex gratia payment – Further, option of compassionate appointment was available only if the full amount of gratuity was not taken, something which was done – Thus, the option of compassionate appointment really was not available to the respondents – Keeping in mind the basic principles applicable to the cases of compassionate employment, i.e., succor being provided at the stage of unfortunate demise, coupled with compassionate employment not being an alternate method of public employment, it is noticed that the respondents had the wherewithal at the relevant stage of time, as per the norms, to deal with the unfortunate situation– It is not for the Courts to substitute a Scheme or add/subtract from the terms thereof in judicial review – Court may have sympathy with the respondents, but sympathy alone cannot give remedy, more so when the relevant benefits available to the respondents were granted by the Bank and when respondent no.1, herself was in employment having monthly income above the benchmark – Impugned order set aside – Writ petition originally filed by the respondents is dismissed.
Allowing the appeal, the Court
HELD 1.1 The question of applicability of any subsequent Scheme really does not apply in view of the judgment of Supreme Court in Canara Bank. Thus, it would not be appropriate to examine the case of the respondents in the context of subsequent Schemes, but only in the context of the Scheme of 4.4.1979, the terms of which continued to be applicable even as per the new Scheme of 5.11.1985, i.e. the Scheme applicable to the respondents. There is no provision in this Scheme for any ex gratia payment. The option of compassionate appointment was available only if the full amount of gratuity was not taken, something which was done. Thus, having taken the full amount of gratuity, the option of compassionate appointment really was not available to the respondents. Though the subsequent Schemes were not applicable, even if benefit was sought to be given of those Schemes, initial non-disclosure and subsequent disclosure by respondent No.1, of her employment and her emoluments would disentitle her under those Schemes, too. Thus, when the appellant was calling upon the respondents to apply under the subsequent Schemes, that could have been beneficial to the respondents only if they were entitled to any of the benefits under that Scheme. That could not happen because the benchmark provided in those subsequent Schemes took the emoluments of respondents beyond the prescribed limit, so as to disentitle them from both, compassionate employment and ex gratia payment. The basic principles applicable to the cases of compassionate employment are to be kept in mind, i.e., succor being provided at the stage of unfortunate demise, coupled with compassionate employment not being an alternate method of public employment. It would be noticed that the respondents had the wherewithal at the relevant stage of time, as per the norms, to deal with the unfortunate situation which they were faced with. Thus, looked under any Schemes, the respondents cannot claim benefit, though, as clarified, it is only the relevant Scheme prevalent on the date of demise of the employee, which could have been considered to be applicable, in view of the judgment of Supreme Court in Canara Bank. It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review. The Court may have sympathy with the respondents about the predicament they faced on the demise of the deceased, but then sympathy alone cannot give remedy to the respondents, more so when the relevant benefits available to the respondents have been granted by the appellant and when respondent No.1, herself, was in employment having monthly income above the benchmark. The Court thus, have no option but to reluctantly set aside the impugned order and dismiss the writ petition originally filed by the respondents. [Paras 15-19] [415-D-H; 416-A-E]
Canara Bank & Anr. v. M. Mahesh Kumar (2015) 7 SCC 412 : [2015] 9 SCR 724 ; State of Himachal Pradesh & Anr. v. Parkash Chand (2019) 4 SCC 285 : [2019] 1 SCR 533 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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