N.Kanniammal v. Reserve Bank of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.02.2009CORAM:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAWrit Petition No.5957 of 2001N.Kanniammal.. Petitionervs.1.Reserve Bank of India, Represented by its Manager Fort Glacis, Rajaji Salai Chennai 600 001.2.The Assistant General Manager (P) Reserve Bank of India Fort Glacis, Rajaji Salai Chennai 600 001... RespondentsPrayer: Writ petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Certiorarified Mandamus,to call for the records relating to order dated 19.09.2000 made inGAD (Che)/4153/07.01.057/ 2000-01 by the Assistant General Manager(P), Reserve Bank of India, General Administrative Department, FortGlacis, Rajaji Salai, Chennai – 600 001, the second respondentherein, quash the same and consequently, direct the respondentsherein to consider and appoint the son of the petitioner in Class IVservice of the respondents Bank by applying the old scheme oncompassionate ground.For Petitioner : Mr.S.Anil Sandeep For Respondents : Mr.T.PoornamO R D E RThe petitioner seeks to challenge the order of the secondrespondent dated 19.9.2000 passed in No.GAD (Che)/4153/07.01.057/2000-01 and while praying for setting aside the said order,also seeks for a direction to the respondents to consider and appointthe petitioner's son in Class IV Service of the respondents Bank byapplying the old scheme applicable to compassionate appointments.2. The brief facts, which are required to be stated are that thepetitioner's husband was appointed in the bank on 3.2.1971 and hedied in harness on 20.06.1991, leaving behind the petitioner, oneminor son and two minor daughters. One of the daughters is stated tobe a physically handicapped child. At the time of the death of herhusband, the petitioner was left with a small piece of vacant land at https://hcservices.ecourts.gov.in/hcservices/ Guduvanchery, which did not yield any income. Apart from theterminal benefits, which she received due to the demise of her latehusband, the family pension that is being paid is hardly stated to bearound Rs.2000/- and odd. At that point of time, the petitionerapplied for an employment for her son, who was 15 years old, as perthe scheme for compassionate appointment that was in vogue. Theapplication was stated to have been made on 04.09.1991. Since herson was a minor, the respondent Bank vide its reply dated 07.09.1991,advised her to renew her request after her son becomes major. 3. The petitioner applied again on 15.04.1994. The respondentBank sent a Proforma along with their letter dated 28.04.1994 andcalled for more particulars. The petitioner filled in the Proformaand sent it back on 30.05.1994, wherein the details about the causeof death of her husband, the terminal benefits, which were disbursedto her, pursuant to his demise, the property left behind as well asthe liabilities that were to be met on that date and the familydetails. The family details furnished disclose that none wereemployed even at that point of time and that her son, who sought foremployment, was 19 years old, had just then successfully completedhis S.S.L.C. The said part of the proforma in Serial Nos.16 to 22were relating to the ward for whom the application for compassionateappointment is made. Apart from the above details, the son also senta communication dated 30.05.1994, making it clear that if he is givenappointment as Class IV employee on compassionate ground, he willlook after his sisters' studies and their marriages and the welfareof his grand mother.4. By a reply dated 20.06.1995, that is after more than a year,the respondents informed the petitioner that the facility ofcompassionate appointment was restricted to the spouse of thedeceased and therefore, they were not in a position to offerappointment to her son and that the bank is prepared to offer alumpsum ex gratia of Rs.75,740/- to the affected family. Thewillingness of the petitioner to accept the offer was also soughtfor. Immediately the petitioner sent her reply dated 20.07.1995contending that the claim for compassionate appointment should beconsidered as per the Rules as on the death of her husband namely,20.06.1991 and on that basis the petitioner's son was entitled for anappointment in the services of the bank. However, by reply dated16.04.1997, the respondent bank once again rejected the claim of thepetitioner and came forward to offer the lumpsum ex gratia ofRs.75,740/- as advised in the letter dated 20.06.1995. 5. Be that as it may under similar circumstances, the claim forcompassionate appointment in respect of another employee who died inharness came to be made by the son of the deceased which was alsorejected by the respondent bank. In respect of the said claim, awrit petition came to be filed in this Court in W.P.No.8284 of 1995.The claim in that case was also identical to that of the presentpetitioner. By order dated 28.09.1999, the said writ petition wasallowed and a direction was issued to the respondents to consider theclaim of the said writ petitioner afresh for the appointment of herson on compassionate ground and provide such employment. While https://hcservices.ecourts.gov.in/hcservices/ giving the said direction, it was held that the claim forcompassionate appointment should be considered under the scheme thatexisted prior to 01.10.1992 and the rejection of the claim byapplying new circular and scheme cannot be sustained. It is statedthat the said order of the learned Judge was complied with andcompassionate appointment was given to the son of the said writpetitioner. 6. The petitioner herein was periodically approaching therespondents and insisting for employment to her son on compassionateground. Such claims were turned down by the respondents in theircommunications dated 08.06.2000 and 19.09.2000. The respondent bankhowever called upon the petitioner to accept the offer of ex gratiapayment. It was in the above said background the petitioner has comeforward with the present writ petition seeking to challenge the lastof the communication dated 19.09.2000 of the second respondent andwhile seeking to quash the same also prays for consequentialdirection to consider and appoint the petitioner's son in Class 4service of the respondent bank by applying the old scheme within aprescribed time limit.7. The second respondent has filed a counter affidavit on behalfof the respondents. In the counter affidavit, the claim of thepetitioner has been resisted by contending that the writ petition isliable to be rejected on the ground of laches, that when thepetitioner initially made a claim for compassionate appointmentimmediately after the death of her husband on 20.06.1991 by anapplication dated 04.09.19991 by stating that such claim would beconsidered after her son attains 18 years of age in April 1994 andadvised the petitioner to approach the bank after her son attainsmajority. According to the respondents the petitioner was alsoinformed that such claim for compassionate appointment would beconsidered as per the Scheme that would be in vogue at that point oftime. In the counter, it is pointed out that subsequent to theinitial claim of the petitioner, the bank reviewed its policy oncompassionate appointments by which it was decided that any claim forcompassionate appointment by any member other than the spouse shouldbe rejected and that such families would be entitled only for paymentof lumpsum ex gratia as prescribed by the bank. It is stated thatsuch revised policy was issued in the form of circular dated28.10.1994 from the Central Office to all the branches through outthe country. As per paragraph 7 of Annexure 1 to the said circular,it was stated that old cases where deferment was granted foremployment of a ward would be treated as an exception and dealt withas per the Bank's advice then given.8. In the case on hand, since it was stated that at the time ofdeferment of the petitioner's claim in the year 1991, it was statedthat the claim would be considered as per the Scheme that would be invogue on the future date, the petitioner is entitled only for lumpsumpayment. In other words, according to the respondents, though thepetitioner's claim would fall in the category of deferred case forcompassionate appointment since the petitioner was advised at thetime of deferment that the consideration of the petitioner's claim https://hcservices.ecourts.gov.in/hcservices/ for compassionate appointment for her son would be considered as perthe policy that would be in vogue at the time when he becomes majorand as per the present policy only a spouse is entitled forcompassionate appointment, the petitioner is only entitled for alumpsum payment and she is not entitled to claim appointment for herson. As far as the decision rendered in W.P.No.8284 of 1995 dated28.09.1999 is concerned, the respondent would contend that the saidcase is not applicable to the facts of the present case.9. I have heard the learned counsel for the petitioner as wellas the learned counsel for the respondents. The learned respectivecounsel reiterated their stand as projected in the respectivepleadings.10. The learned counsel for the petitioner would contend thatthe case of the petitioner is squarely covered by the earlierdecision of this Court in W.P.No.8284 of 1995 dated 28.09.1999 andfurther contend that the policy which was in vogue on the date ofdeath of her husband namely, 20.06.1991 relating to compassionateappointment alone would apply and not the one which came intoexistence long after his death. The learned counsel furthercontended that when the petitioner initially applied forcompassionate appointment after her husband's demise in the month ofSeptember 1991, initially the respondents advised the petitioner toseek for such appointment as and when her son becomes major and thatlater on when her son attained majority, by letter dated 28.04.1994,the respondent bank called upon the petitioner to apply in theprescribed Proforma furnishing the details for such compassionateappointment which was also duly furnished on 10.05.1994. The learnedcounsel therefore contended that if those circumstances are takeninto account, the same would show that even the respondents did notreject the claim for compassionate appointment but only wanted thepetitioner to wait till her son attains majority and in any case notlater than 19.06.1995. According to the learned counsel, even goingby the subsequent circular of the year 1994 as a deferred claim whenthe initial advise of the respondent bank has to be honoured and theadvise of the bank was to wait till the son becomes major, therespondents cannot now turn around and state that the petitioner isnot entitled to seek for compassionate appointment for her son. 11. On the other hand, the learned counsel for the respondentswould contend that when the bank in its initial communication dated07.09.1991 made it clear that the said letter did not confer anyright on any member of the family of the deceased employee to claimcompassionate appointment nor can it be construed as a commitment tooffer such appointment on a future date and that such claim would beconsidered as per the provisions of the Scheme that would come intovogue at the relevant point of time. According to the learnedcounsel the respondent is justified in stating that the scheme thatcame into force after 1994 did not provide for compassionateappointment to any one other than the spouse of the deceased andtherefore, the petitioner is only entitled for lumpsum amount. https://hcservices.ecourts.gov.in/hcservices/

12. Having bestowed my consideration to the respectivesubmissions as well as the various material papers placed before me,I am not inclined to accept the stand of the respondent bank. In thefirst place, the case of the petitioner is squarely covered by theearlier decision of this Court in W.P.No.8284 of 1995 dated28.09.1999. The facts are identical. That was also a case, where atthe time of the death of the deceased, compassionate appointment wasclaimed for the minor son by the wife of the deceased. The said claimwas deferred by the very same respondent bank. Subsequently, whenthe claim was renewed after the minor became major, it came to berejected by the respondent bank on the very same ground that thesubsequent scheme did not provide for compassionate appointment toany one other than the spouse. That apart in that case also, theinitial claim was turned down on the footing that the son of thedeceased was minor, that his claim would be considered after heattains majority, that such claim would be considered as per theprovisions of the scheme that would come into force at the relevantpoint of time, that is when he becomes major and that the said lettershould not be taken as a commitment for compassionate appointment toher son. Dealing with the said claim, vis-a-vis, the subsequentscheme provisions contained in Clause 7 of Annexure I, the learnedJudge held as under in Paragraphs 12 and 13:"12. By circular dated 28th October 1994, the newscheme has been introduced the details of which are setout in Annexure I and in terms of the new scheme, therespondent has to issue a letter of offer in proformagiven in Annexure II to the spouse of the deceasedemployee calling her/his option either for appointmentin the Bank or payment of lumpsum ex-gratia oncompassionate ground for considering of the Bank. Inpara 3 of the Circular, it has been stated that theapplications received from the bereaved family of theemployees who died in harness from 1st January 1992onwards for compassionate appointments which were keptpending at Central Office will also be entitled to thebenefits of the new scheme. Clause 7 of the Annexure Ireads thus:"There will be no deferment of employment onany ground. However, old cases wheredeferment was granted for employment of award will be treated as exception and dealtwith as per the Bank's advice then given. ""cases which are kept pending for decision will bedecided as for per the above scheme"13. The object behind the compassionate appointmentis to provide reasonable financial support to the familyof any employee dying in harness and it provided foremployment to the spouse or ex-gratia, a lumpsum paymentat the option of the living spouse to enable the familyto get over the financial crisis which it faces at the https://hcservices.ecourts.gov.in/hcservices/ time of death of the sole bread winner. It was furthercontended that compassionate employment cannot beclaimed at this point of time and that too after thechange in the scheme." 13. After so holding and by applying the various decisions ofthe Hon'ble Supreme Court, the learned Judge ultimately directed therespondents to provide compassionate appointment to the son of thedeceased and the respondents also complied with the said direction.Therefore, the respondent cannot apply a different yardstick to thecase of the petitioner whose case mutatis mutandis is similar andidentical in all respects to the case of the one covered by theearlier order dated 28.09.1999 in W.P.No.8284 of 1995. 14. As far as the allegation of laches put against thepetitioner is concerned, the same cannot also be accepted since Ifind that initially the petitioner made a claim for compassionateappointment on 04.09.1991 while her husband died on 20.06.1991.Thereafter, as soon as her son became major on 09.04.1994, thepetitioner revived her claim by her letter dated 15.04.1994. Thepetitioner's son also made a request on 30.05.1994. When therespondents wanted the claim to be made in the prescribed Proforma,that was also submitted on 10.05.1994. Thereafter, the bank tookmore than a year and a month that is on 20.06.1995 to inform thepetitioner that her claim for compassionate appointment for her soncannot be considered. But the petitioner was relentlessly andrepeatedly insisting for the compassionate appointment for her son byapplying the Rule which was existing as on the date of the death ofher husband. Such repeated requests were being made as could be seenfrom the communications of the petitioner dated 03.02.1997,respondents reply dated 16.04.1997, petitioner's subsequent letterdated 03.04.2000, respondents reply dated 08.06.2000, petitioner'sfurther communication dated 15.09.2000 and the respondents replydated 19.09.2000. In fact in none of the replies, the respondenttook the stand that the claim of the petitioner cannot be consideredor that the claim became stale. On the other hand, the respondentswere only stating that the petitioner will only be offered thelumpsum payment and not compassionate appointment. 15. The word laches has got different shades of meaning and asper P.Ramanatha Aiyer's 'Law Lexicon', the word 'Laches' has beendefined to mean as under:-"Laches: Laches, or lasches, is an old French wordfor slackness or negligence,or not doing""LACHES" in law is a neglect to do something whichby law a man is obliged to do. In a general sense itmeans a neglect to do what in the law should have beendone for an unreasonable or unexplained length of timeunder circumstances permitting diligence.Laziness or lack of promptitude in pursuing a legalremedy. https://hcservices.ecourts.gov.in/hcservices/ Laches to bar the plaintiff's right must amount towaiver, abandonment, or acquiescence and to raise apresumption of any of these, the evidence of conduct mustbe plain and unambiguous. What would be laches in one case might notconstitute such in another. The question is oneaddressed to the sound discretion of the court, dependingupon all the facts of the particular case." (emphasis ismine)16. When the above principles stated in regard to the expression'laches' is applied to the facts on hand, I am unable to hold thatthe petitioner either neglected to do what in law she was expected toperform or was the period between 1991 and 2001 was unexplained. Theperiod between 20.06.1991 and June 1995 is concerned, the respondentsthemselves advised the petitioner to revive her claim after her sonbecame major. Therefore, when for the first time the respondents intheir communication dated 20.06.1995 informed the petitioner that herclaim for compassionate appointment for her son would not beconsidered, the said period namely 1991 to 1995 cannot be put againstthe petitioner. After 1995, till the filing of the writ petition, itcannot be said that the petitioner simply slept over the matter andcame forward with the writ petition in the year 2001. 17. On the other hand, the petitioner was never tempted toaccept a fair sum of Rs.75,740/- offered by the respondent bank, butwas repeatedly insisting for employment for her son in order to havea sustained income for her family which consisted of herself, as awidow with a daughter and her mother-in-law to be supported. In anycase, it will cause grave injustice if it were to be held that thepetitioner waived her right or abandoned it by not making any claim.Therefore, analysing the various factors involved in this case, theclaim of this nature by the petitioner cannot be thrown on the groundof laches. Therefore, the said stand of the respondents also doesnot merit any consideration by using the discretion of this Court onthe ground of laches.18. As far as the merits of the case is concerned as stated byme earlier, the decision rendered in W.P.No.8284 of 1995 dated28.09.1999 squarely applies to the case on hand. That apart asrightly contended by the learned counsel for the petitioner when theclaim was initially dealt with by the respondents in their letterdated 07.09.1991, it would only state that the said letter cannot betaken to have made any commitment for giving compassionateappointment on a future date and that it would be considered as perthe provisions that would be in prevalence at the future point oftime. Subsequently, when the petitioner revived her claim after herson became major on 09.04.1994 through her letter dated 15.04.1994,the respondents in their letter dated 28.04.1994 called upon thepetitioner to furnish the particulars as per the prescribed Proforma.For better appreciation, the said letter needs extraction:"With reference to your letter dated 15th April https://hcservices.ecourts.gov.in/hcservices/ 1995, we advise you to furnish the particulars asrequired in the enclosed proforma at an early date toenable us to take necessary action in the matter."(emphasis added)19. The Proforma was duly resubmitted by the petitioner alongwith her letter dated 10.05.1994. In the respondents letter dated28.04.1994 in the subject column, the respondents have consciouslyreferred to the claim for compassionate appointment to Class IVService in the Staff Category. Reading the said letter dated28.04.1994 and the Proforma together it can only be held that therespondent bank though initially stated that it did not commit itselfto provide any compassionate appointment, was inclined to considerthe claim for compassionate appointment to petitioner's son bycalling for all the particulars including the particulars relating tothe petitioner's son, his educational qualification and other familydetails. If the respondents were not inclined to considercompassionate appointment for petitioner's son, the question offurnishing the Proforma to be filled in and resubmitted by thepetitioner would not have arisen at all. 20. That apart either in the initial letter dated 07.09.1991 ofthe respondents or subsequent letter dated 28.04.1994, therespondents never stated that they will not consider the claim forcompassionate appointment for the petitioner's son. The advise thatwas given to the petitioner on 07.09.1991 was to revive her claimafter her son attains majority. Later, after her son attainedmajority when the claim was revived, the respondents did not say thatthe claim will not be considered, but persuaded the petitioner tomove one step forward to furnish the particulars in the prescribedProforma. All the above developments (i.e.) from the initialapplication of the petitioner dated 04.09.1991 till the revivedapplications made on 10.05.1994 and 30.05.1994, the petitioner aswell as the respondents were proceeding on the footing that her claimfor compassionate appointment for her son would be considered afterher son attained majority. With that factual position in mind whenthe subsequent circular dated 28.10.1994 is applied, I find that theclaim of the petitioner for compassionate appointment for her sondeserves to be allowed without any hesitation. The penultimateparagraph of the circular dated 28.10.1994, reads as under:"3. As you are also aware, the applicationsreceived from the bereaved families of the employeeswho died in harness from 1st January 1992 onwards forcompassionate appointments were kept pending atCentral Office. There may be also few cases where therequests for appointment from the family members ofsuch deceased employees were turned down. A list ofsuch employees pertaining to your office is given inAnnexure - VI. You may deal with their cases inaccordance with the above guidelines."21. Significantly in Annexure VI, the case of the petitioner(i.e.) her husband's name does not find a place. Therefore, it was https://hcservices.ecourts.gov.in/hcservices/ not a case where the claim was turned down. As far as the revisedscheme is concerned, it is found in Annexure I to the said circular.Paragraph 7 of Annexure I reads as under:"7. There will be no deferment of employment onany ground. However, old cases where deferment wasgranted for employment of a ward will be treated asexception and dealt with as per the Bank's advice thengiven."22. A careful consideration of the above paragraph makes itclear that wherever old cases were deferred for grant of employmentto a ward, the same should be treated as a exception and dealt withas per the banks advice then given. As stated by me earlier, theclaim of the petitioner for compassionate appointment for her son wasnever turned down by the respondent bank. None of the communicationswhich were exchanged between the petitioner and the respondentsbetween 1991 and June 1995 state that the claim was turned down. Onthe other hand as pointed out by me, the relevant communicationsnamely 07.09.1991 of the bank, 15.04.1994 of the petitioner,28.04.1994 of the respondents and 10.05.1994 and 30.05.1994 of thepetitioner goes to show that the claim of the petitioner was deferredand the respondent was more inclined to provide employment to thepetitioner's son in Class IV service of Staff Category. Therefore,the petitioner's case is fully governed by Paragraph 7 of Annexure I,whereby it was a old case which was deferred for grant of employmentto a ward and which is to be treated as an exception. Unfortunately,the respondents instead of properly appreciating their own stand havebeen thoroughly misled to reject the claim of the petitioner in anunjustifiable manner. 23. Under such circumstances, the writ petition is allowed; theimpugned proceedings of the second respondent dated 19.09.2000 is setaside and the respondents are directed to provide compassionateappointment to the petitioner's son Mr.N.Kuppuswamy as Class IVemployee in the Staff category within one month from the date ofreceipt of a copy of this order. In the facts and circumstances ofthe case, I am not inclined to award any costs. All M.Ps. closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.svki/kkTo1.The Manager, Reserve Bank of India, Fort Glacis, Rajaji Salai Chennai 600 001. https://hcservices.ecourts.gov.in/hcservices/

2.The Assistant General Manager (P) Reserve Bank of India Fort Glacis, Rajaji Salai, Chennai 600 001.+ 1 CC to Mr.T.Poornam,Advocate,SR.7105+ 2 CC to Mr.Ashok Menon,Advocate,SR.7104 W.P.No.5957 of 2001SV(CO)EM/27.2.