LPA N v. Sarswati Devi

O R D E R The State Bank of India has challenged the order dated 11th August 2017 passed in WP(S) No.2774 of 2016 by which the writ Court issued a direction to the Bank to take a fresh decision on the claim for compassionate appointment made by the writ petitioner.

2. The respondent No.1 is widow of late Kishore Kumar Gope who was employed as Messenger with State Bank of India (hereinafter referred to as 'SBI') at AG Office Complex Branch, Ranchi. The employee died in harness on 1st May 2003 leaving behind three minor children to be looked after by the respondent No.1. However, by an order dated 6th January 2016 her claim for compassionate appointment was declined on the ground that late Kishore Kumar Gope was awarded punishment in a departmental proceeding.

3. The respondent No.1 approached this Court in WP(S) No.4151 of 2010 which was disposed of on 22nd May 2015 in the following terms: 2 LPA 494 of 2017 speaks Annexure-4 nowhere “21. The counter affidavit which has been filed by the respondents has mostly tried to improve/justify the impugned letter dated 08.02.2005 by adding certain reasonings to the fact that the death of the husband of the family resulted in sufficient monetary benefits to the dependents and as such it cannot be said that the dependents of the deceased employee were in a precarious financial condition. As has been indicated above the letter dated 08.02.2005 only revolves around the fact that since a departmental proceeding was initiated against the husband of the petitioner which resulted in infliction of punishment, in such circumstances, the claim of the petitioner for compassionate appointment cannot be considered. As has further been indicated above the scheme which was in existence at the time of death of the husband of the petitioner and which has been appended to the main writ application as initiation/contemplation/finalization of a departmental proceeding resulting in punishment shall debar the dependents of the deceased employee from seeking compassionate appointment. Moreover while considering the claim for compassionate appointment as per the scheme itself in terms of clause 10 various factors have to be taken into consideration for determining the financial condition of the dependent family but the impugned letter dated 08.02.2005 does not reflect that clause 10 of the scheme has been taken into consideration and that clause 11A has also been properly considered in refusing the plea of the petitioner for compassionate appointment. Since the letter dated 08.02.2005 and the subsequent letter dated 14.02.2005 is arbitrary and is shorn of detailed reasoning in terms of the scheme which was in existence at the time the husband of the petitioner died in harness, in such circumstances the letter dated 08.02.2005 issued by the General Manager (II) State Bank of India and the subsequent letter dated 14.02.2005 issued by the respondent No. 1 is not in accordance with law and, accordingly, both the letters under reference are hereby quashed and set aside. The matter is remitted back to the respondent No. 1 to take a fresh decision in accordance with law and in accordance with the scheme which was in existence at the time of the death of the husband of the petitioner. 22. This writ petition is disposed of.”

4. After the aforesaid order passed in WP(S) No. 4151 of 2010, the claim of the respondent No.1 was again declined vide order dated 6th January 2016 issued under the signature of the Regional Manager, SBI, which was impugned by the respondent No.1 by filing WP(S) 2774 of 2016.

5. Before the writ Court, a serious controversy on facts was sought to be raised by both the parties which was finally decided in favour of the respondent No.1 who was the writ petitioner. The writ Court came to a conclusion that the so-called revised Bank's Scheme for Compassionate Appointments never saw the light of the day and in any event it was not established that the amendments were carried out and notified to the employees before 1st May 2003 – the day, the employee had died.

6. The writ Court referring to the decision in “Canara Bank & another v. M. Mahesh Kumar” (2015) 7 SCC 412 held that the claim for 3 LPA 494 of 2017 compassionate appointment of the respondent No.1 cannot be decided in terms of the amended Bank's Scheme for Compassionate Appointments,

2003. The writ Court, therefore, was of the opinion that the claim of the respondent No.1 for compassionate appointment required fresh consideration by the employer of her husband and, accordingly, the following direction was issued vide order dated 11th August 2017: “17. Thus, as per the judgment reported in the case Canara Bank & Anr vs M. Mahesh Kumar (supra), the claim cannot be decided as per 2003 Scheme, rather, it ought to have been decided as per the scheme which was prevalent at the time of death of the husband of the petitioner. The right which has accrued to the petitioner cannot be snatched away on wrong interpretation of the rules and guidelines. As already the matter was remanded back to the respondents for taking a fresh decision in accordance with law and in accordance with the scheme which was in existence at the time of death of the petitioner’s husband, this Court is of the considered view that the case of the of the petitioner needs consideration. The respondents are directed to consider the case of the petitioner for appointment on compassionate ground and pass a reasoned order taking into consideration the scheme which was in existence at the time of death of the husband of the petitioner. 18. As a cumulative effect of the aforesaid observations, rules, guidelines, judicial pronouncements, the impugned order dated 06.01.2016 (Annexure-8) is quashed and set aside. The respondent- Bank is hereby directed to issue letter of appointment to the petitioner within a period of six weeks from the date of receipt of a copy of this order.”

7. Mr. Rajesh Kumar, the learned counsel for SBI, refers to the judgment in “General Manager, State Bank of India & others v. Anju Jain” (2008)8 SCC 475 to lay support to the submission that the amended Bank's Scheme for Compassionate Appointments shall govern the case of the Respondent No.1. The learned counsel would refer to the communication dated 11th March 2003 to submit that the amendments made in Clause 5 of the Bank's Scheme for Compassionate Appointments are matters of record and the writ Court wrongly held that the amended Scheme cannot be applied in case of the respondent No.1.

8. Per contra, Mr. Krishna Kumar, the learned counsel for the respondent No.1, submits that all that which can be inferred from the communication dated 11th March 2003 is that there was internal communication as regards proposed amendments in the Bank's Scheme for Compassionate Appointments and such letter would have no force in law unless the amendments so carried out are notified and made known to the employees of SBI.

9. The learned counsel for the respondent No.1 would rely on the 4 LPA 494 of 2017 decision in “M/s Sethi Auto Service Station & Another v. Delhi Development Authority & others” (2009) 1 SCC 180 wherein the Hon'ble Supreme Court in paragraph No.14 held as under: “14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department; gets his approval and the final order is communicated to the person concerned”.

10. The aforesaid decision in “M/s Sethi Auto Service Station” was with reference to notings in the departmental file which shall have no sanction of law to be an order made effective to all. Whereas, the communication dated 11th March 2003 records that the Executive Committee of the Central Board approved the amendments in the Bank's Scheme for Compassionate Appointments in its meeting dated 24th January 2003. In paragraph No.3 of the communication dated 11th March 2003, it is specifically mentioned that the existing paragraph Nos. 11(A)(a)(iv) and 11 (B)(a)(iv) have been deleted and new column (No.10) has been included in the format for recommending proposals. This was followed by a further direction to use the revised format with immediate effect and that the staff concerned to be instructed suitably. Along with the communication dated 11th March 2003, a copy of the Bank's Scheme for Compassionate Appointments (revised Scheme) was also forwarded to all concerned.

11. Furthermore, in view of the judgment in “Anju Jain” wherein the Hon'ble Supreme Court has referred to the amended Bank's Scheme for Compassionate Appointments of 2003, there cannot be any doubt about the amendments carried out in Clause-5 of the Bank's Scheme for Compassionate Appointments. Therefore, we cannot accept the submission that the amendments in the Bank's Scheme for Compassionate Appointments were not notified by SBI and while so the amendments dated 24 th January 2003 cannot be made a ground to reject the claim of widow of the deceased employee. In view of the materials brought on record, we are of the opinion that even if no notification has been brought on record the employer can rely on and act pursuant to the amended Bank's Scheme for Compassionate 5 LPA 494 of 2017 Appointments with effect from 24th January 2003. This also has to be kept in mind that the Bank's Scheme for Compassionate Appointment framed by SBI is not statutory in nature and, moreover, the stand taken by the employer on these matters must be accepted by the Courts.

12. Another ground taken by the respondent No.1 is that under Clause 10.6.4 of the “Rules Governing the Service Conditions of the Employees of the Bank”, the claim for compassionate appointment is not barred and the only condition imposed is that approval of the government shall be taken.

13. Based on Clause 10.6.4, a contention has been raised that any provision in the Bank's Scheme of Compassionate Appointments would not override the express provisions under the Rules. No doubt any regulation, circular or guideline framed under the Rules cannot supplant the main provision in the Rules but that is not the case here and the issue involved in the present case is entirely different. All that Clause 10.6.4 provides is that the claim for compassionate appointment can be considered subject to approval of the State Government, but then, consideration of a claim has to be made in terms of the Bank's Scheme for Compassionate Appointments.

14. In “Bhawani Prasad Sonkar v. Union of India” (2011) 4 SCC 209 and “Mohan Mahto v. Central Coal Field Ltd.” (2007) 8 SCC 549 the Hon'ble Supreme Court has held that every claim for compassionate appointment must be considered within the four corners of the Scheme and only after being satisfied that the applicant is eligible for appointment the benefit under the Bank's Scheme for Compassionate Appointments shall be granted. A similar view has been reiterated by the Hon'ble Supreme Court in “State of MP v. Amrit Shrivas” (2020) 10 SCC 496 wherein the Hon'ble Supreme Court observed that an application for compassionate appointment must be decided within the four corners of the Scheme existing on the date of death of the employee.

15. The amended Clause 5 of the Bank's Scheme for Compassionate Appointments reads as under: “5. Eligibility a) Applicant must be an Indian citizen. b) In case, more than one dependent is eligible for appointment, the Bank will have the right to offer appointment under the Scheme to the better qualified and most suitable dependent. c) In case of an employee retiring on medical grounds, appointment will be restricted to his wife, son or daughter. In 6 LPA 494 of 2017 exceptional circumstances a near relative other than these may be considered if it is established to the satisfaction of the Bank that he/she will in fact be the breadwinner of the family. Exclusions d) Dependents of employees who had attained the age of 60 years at the time of their death, but had not actually retired on account of the provision regarding retirement of the last day of the month, are not covered under the Scheme. e) Dependents of the employees charge-sheeted for obtaining employment by producing false caste certificate are not entitled for compassionate appointment. f) The dependents of an employee who has died or who has retired on health grounds and whose service records was blemished on account of disciplinary action having been taken against him will be ineligible for compassionate appointment in the Bank.”

16. As it is apparent from a reading of the sub-clause 5(f) which was incorporated by amendment, any claim for compassionate appointment by a dependant of the employee dying in harness shall be rejected where the employee was found guilty of major misconduct. The husband of the appellant faced the domestic inquiry on an allegation that at about 12:00 PM on 29th August 1989 he entered the chamber of the Regional Manager, Region-1, SBI, Regional Office, Ranchi and involved himself in heated arguments with Mukul Ram who was employed as Messenger and caused injury to him which was so severe that it required 11 stitches on his head. The disciplinary authority inflicted punishment of stoppage of three increments with cumulative effect which is a major punishment. However, the punishment was later on reduced by the appellate authority to stoppage of two increments with cumulative effect which, however, is also a major punishment (refer, “Kulwant Singh Gill v. State of Punjab” reported in 1991 supp.(1) SCC 504).

17. Considering the above aspects of the case, we are of the opinion that the writ Court committed serious error in law in issuing direction to SBI to consider the claim for compassionate appointment.

18. For the aforesaid reasons, this Letters Patent Appeal succeeds and, accordingly, LPA No. 494 of 2017 is allowed.

19. Pending Interlocutory Application, if any, stands disposed of. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 23rd June 2022 SB/Nibha-NAFR