Whether a direction can be given by this Court to consider the case of Petitioner for employment on compassionate grounds sans submission of Annexure-II or not?

1

VJP, J

WP_33258_2018

HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

WRIT PETITION No. 33258 OF 2018

ORDER:

This Writ Petition is filed under Article 226 of the Constitution of India

seeking a direction in the nature of Mandamus declaring the inaction on the

part of the Respondent Nos.,1 to 4 in not considering the application of

petitioner dated 29.01.2015 and the representation dated 18.04.2018 and

consequently, seeking to direct the Respondent Nos.1 to 4 to consider the

petitioner for appointment in a suitable post in the State Bank of India on

compassionate grounds, without insisting the signature of Respondent Nos.5

and 6 in Annexure-II as dependents to the deceased.

2. The case of the Petitioner in brief is as follows:

2.1. One B.N.K.Krishna Kishore, who joined in the service as Assistant

Manager in Respondent Bank, Kakinada, on 20.08.2007, died on 29.10.2014,

leaving behind the Petitioner/his wife, minor son, aged about six years, besides

his parents/Respondent Nos.5 & 6. It is the Petitioner’s case that, during the

life time of her husband, his parents used to harass her and she has no cordial

relations with Respondent Nos.,5 and 6.

2.2. On 29.01.2015, Petitioner has applied to Respondent Nos.1 to 4 seeking

a suitable job to her on compassionate grounds. Respondent No.5 got issued a

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legal notice dated 02.12.2014 to Respondent Nos.1 and 2 as well as to the

petitioner stating that the petitioner is not entitled to withdraw all the

retirement benefits. Petitioner also issued a legal notice on 10.04.2015 to

Respondent Nos.1 and 2, in the process of her application for compassionate

appointment.

2.3. A series of litigation followed right from claims before the District

Consumer Disputes Redressal Forum to the civil court and Petitioner as well

as Respondent No.5 received their respective shares out of the retirement

benefits of the deceased.

2.4. Alongwith her application for compassionate appointment, Petitioner

annexed an undertaking, vide Annexure–III dated 02.05.2017 to maintain the

dependents of the deceased i.e., her son and her parents-in-law. Thereafter,

she received a letter dated 30.11.2017 from Respondent No.1 asking her to

furnish Annexure-II, which must be signed by all the dependents.

2.5. It is the Petitioner’s case that Respondent Nos., 5 and 6 are not inclined

to sign the Annexure-II owing to their pre-existing matrimonial disputes. It is

stated that she alone is eligible legal representative to get appointment on

compassionate grounds.It is averred that Respondent Nos.5 and 6 have certain

ancestral properties, while she with her minor son are living at their mercy. It

is also placed that Petitioner by a representation dated 08.04.2020 to

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Respondent Nos.1 to 4, stated that after getting appointment on

compassionate grounds, would pay a part of her salary to the Respondent

Nos.5 and 6.

2.6. Petitioner contends that the format of Annexure-II demanding her to get

signatures from her in-laws, with whom she has no cordial relations,

compromises on her dignity. It is also stated that non-consideration of her

representation is illegal and violative of Articles 14 and 21 of the Constitution

of India.

3. Version of the Respondents in Counters

3.1. A counter Affidavit is filed by Respondent Nos.1 to 4 with the following

averment at para 3 extracted hereunder;

“3. It is submitted that as per the New Policy of the State

Bank of India, the Bank is not entertaining any

appointments on compassionate grounds as matter of

policy, but, if any person otherwise eligible and needy, we

are providing some ex-gratia and not employment.

However, as per our Circular instructions, in exceptional

following cases, we are providing appointment on

compassionate grounds:

i) Employee dying while performing is official duty,

as a result of violence, terrorism, robbery or

dacoity.

ii) Employee dying within five years of his first

appointment or before reaching the aged of 30

years, whichever is later, leaving a dependant

spouse and/or minor children.”

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3.2. Further, it is also stated that a person claiming employment under

compassionate grounds, is mandatorily bound to submit Annexures-II and III

along with the application.It is also averred that the application of the Petitioner

could not be considered as she failed to append all the Annexures to the

application. It is stated that instead of settling the disputes inter se within the

family, the Respondent Nos.1 to 4 are dragged into a litigation. It is also

averred that there are no mala fides on their part in not considering her for

appointment and they have made payments according to the decree passed in

the suit O.S.No.780/2014 filed by the Petitioner.

3.3. It is further stated that the Respondents have not examined the case of

the Petitioner to see if it falls under exceptional case, vide the Scheme or not.

Vide a letter dated 15.09.2018, respondents have requested the petitioner to

submit Annexure-II, to which petitioner responded vide a letter dated

15.10.2018 that she is not in good terms with her in laws, and has requested to

process her application. It is stated even before the request could be examined,

the present W.P. is prematurely filed. It is also averred that the Petitioner is an

eligible legal heir for appointment, but the appointment should be made in

accordance with the Rules, which require her to submit Annexure-II as well.

Finally, it was stated that the letter of the Petitioner dated 15.10.2018 is

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pending consideration for a decision to be taken by the Controlling Authority

of the Bank.

Arguments by the Counsels

4. Heard Sri Rayaprolu Srikanth, learned counsel for the petitioner; Sri

K.B.Ramanna Dora, learned Standing Counsel for Respondent Nos.1 to 4-

Bank; Sri K.Lakshmana Raju, learned counsel for Respondent No.6. None

represented for Respondent No.7, who is a proforma party. It is represented

that Respondent No.5 died during the pendency of the suit.

5. Learned counsel for the petitioner would submit that the petitioner is

the wife and the minor boy, aged about six years of the deceased respectively,

without any means of livelihood. Admittedly, because of the disputes that arose

between the petitioner with the parents-in-law/Respondent Nos.5 and 6, she

used to stay at her parents’ house along with the minor boy. It is urged that

the Petitioner has been running from pillar to post to realise the monetary

benefits of her deceased husband, by filing a consumer application and

thereafter a civil suit. It is submitted that the Petitioner has duly submitted the

application seeking employment under compassionate grounds, within the

stipulated time, vide rules, but she could not get No Objection Certificate in

Annexure-II from Respondent Nos.5 and 6,as they are reluctant to co-operate

to sign.

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5.1. Learned Counsel stated that in view of these reasons, when the

Petitioner expressed her inability to submit Annexure-II, Respondent Nos.1 to

4 did not consider her case. It is also submitted that the Petitioner also

addressed a letter stating her willingness to pay part of the salary to

Respondent Nos.5 and 6. It is thus urged that in view of the circumstance,

Respondent Nos.1 to 4 ought to have considered the case of the Petitioner

seeking it as an exceptional one to protect the interests of all the dependants

of the deceased employee.

6. Per contra, learned standing counsel for Respondent Nos.1 to 4 would

submit that the Respondents could not process the application of the

petitioner since, it is an incomplete one as per bank rules. It is stated that in

the absence of the NOC from the other dependants of the deceased, the bank

cannot process the representation of the petitioner. It is also submitted that

when the representation of the petitioner is pending for consideration, the

petitioner has approached this Court by filing the present writ petition, which

is premature and is liable to be dismissed. However, in view of the case, having

argued on the above lines, learned counsel would submit that if an appropriate

order is passed by this Court, the Respondent Bank would obey the same.

7. Learned counsel for Respondent No.6 would submit that the Writ

Petition is a premature one and Respondent No.6 being the father of the

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deceased is dependent and he has no other alternative for his livelihood and as

per the guidelines of the Bank, the petitioner has to submit the application

along with Annexure-II, and that when her application is incomplete,

Respondent Nos.1 to 4 could not process it. Therefore, prays for dismissal of

the W.P.

8. The question that arises for determination in this W.P. is

Whether a direction can be given by this Court to consider the case of Petitioner for

employment on compassionate grounds sans submission of Annexure-II or not?

Determination by the Court

9. From the sorrowful time of death of a loved one, solace can never be

found in ease for the immediate family members. Though memories seldom

fade, finances vanish,at times, in a great speed.It is not uncommon to see how a

familyturns upside down, in the event of the death of an earning member, both

emotionally and financially. With a humanitarian consideration to enable the

immediate family members to get over the sudden financial crisis and to make

ends meet, the scheme of compassionate employment came into existence.

The sole intention of this scheme is to see that the dependants of the deceased

are not financially crippled without any means to livelihood.

10. It is a settled principle of law that compassionate employment is not a

source of recruitment and is also not a vested right. The financial condition of

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the deceased family, at the time of death, should be the primary consideration

in determining a claim for compassionate appointment.

11. In State of West Bengal v. Debebrata Tiwari and others1while

hearing an Appeal from an order that directed consideration of claims of

compassionate appointment, the Hon’ble Supreme Court outlined the

rationale behind the policy as follows;

“7. The majesty of death is that it is a great leveller for, it makes no

distinction between the young and the old or the rich and the poor.

Death being as a consequence of birth at some point of time is

inevitable for every being. Thus, while death is certain, its timing is

uncertain. Further, a deceased employee does not always leave behind

valuable assets; he may at times leave behind poverty to be faced by

the immediate members of his family. Therefore, what should be done

to ensure that death of an individual does not mean economic death

for his family? The State’s obligation in this regard, confined to its

employees who die in harness, has given rise to schemes and rules

providing for compassionate appointment of an eligible member of his

family as an instance of providing immediate succour to such a family.

Support for such a provision has been derived from the provisions of

Part IV of the Constitution of India, i.e., Article 39 of the Directive

Principles of State Policy.”

(Emphasis supplied)

12. Their Lordships while summarizing the law on the subject at para 7,

observed that the claims for compassionate appointment should be

investigated immediately and any delay in consideration of the same would

1

2023 LiveLaw (SC) 175

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frustrate the object of the scheme. Ultimately, in that matter, the Hon’ble

Supreme Court allowed the appeal and set aside the direction to consider

employment on compassionate grounds as there was no such policy in the

concerned department and because the claimant approached the Court

several years, after filing the claim.

13. In State of H.P. v. Parkash Chand,

2

the Hon’ble Apex Court has

outlined the scope of interference that could be made by the High Court

under Article 226 in relation to the compassionate appointments in the

following terms;

“10. In the exercise of judicial review under Article 226 of the

Constitution, it was not open to the High Court to rewrite

the terms of the Policy. It is well settled that compassionate

appointment is not a matter of right, but must

be governed by the terms on which the State lays down

the policy of offering employment assistance to a member

of the family of a deceased government employee. [Umesh

Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State

of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930]

, SBI v. Kunti Tiwary [SBI v. Kunti Tiwary, (2004) 7 SCC 271 : 2004

SCC (L&S) 943] , Punjab National Bank v. Ashwini Kumar

Taneja [Punjab National Bank v. Ashwini Kumar Taneja, (2004) 7

SCC 265 : 2004 SCC (L&S) 938] , SBI v. Somvir

Singh [SBI v. Somvir Singh, (2007) 4 SCC 778 : (2007) 2 SCC

(L&S) 92] , Mumtaz Yunus Mulani v. State of

Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra,

(2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] , Union of

2

(2019) 4 SCC 285

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India v. Shashank Goswami [Union of India v. Shashank Goswami,

(2012) 11 SCC 307 : (2013) 1 SCC (L&S) 51] , SBI v. Surya

Narain Tripathi [SBI v. Surya Narain Tripathi, (2014) 15 SCC 739 :

(2015) 3 SCC (L&S) 689] and Canara Bank v. M. Mahesh

Kumar [Canara Bank v. M. Mahesh Kumar, (2015) 7 SCC 412 :

(2015) 2 SCC (L&S) 539] .]”

(Emphasis supplied)

14. Thus, it would emerge from the decision supra that the compassionate

appointments must adhere to the stipulations made in the policy. In other

words, if a department/authority is shorn of a policy providing compassionate

appointment, no such appointment could be made and in cases, where such

rules exist, compliance is necessary.

15. In the instant case, there is no dispute on the status of the petitioner as

wife of the deceased employee of the bank. It is also not in dispute that the

deceased died on 29.10.2014 vide copy of the death certificate filed by the

petitioner. Respondent Nos.1 to 4 also did not dispute the application and

representation submitted by the petitioner. The fact remains that even during

the life time of the deceased employee, his wife used to stay at her parents’

house, due to disputes with her in-laws. It is also an undisputed fact that out

of Respondent Nos.5 and 6, the petitioner and her minor son, the petitioner

is only the eligible person for getting a compassionate appointment.

16. It is trite to mention that the Respondent No.5 died during pendency of

the present petition. The disputes between the wife and husband and with his

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family members in a matrimonial home are not uncommon. The Respondents

could not process her application only on the ground that it is incomplete for

want of Annexure-II. The petitioner made it very clear that because of noncooperation of Respondent Nos.5 and 6, she could not fulfill the requirement

of Annexure-II and that she is ready to pay part of her salary towards their

maintenance.

17. Vide the judicial precedents supra, there is some force in the arguments

of learned counsel for Respondent Nos.1 to 4 that since Annexure-II is

mandatory, in its absence, the bank could not process her application. One

cannot claim an employment under compassionate grounds as a matter of

right and as a rule, any post in the public employment should be filled up

strictly, on the basis of the open notification and merit. An exception to this

general rule, in the interest of justice,is the appointment on compassionate

grounds. The present case on hand, is one such exception, where a claim is

made by the dependant of the deceased employee. The Hon’ble Supreme

Court explained this principle in N.C. Santhosh v. State of Karnataka and

Others3

 at para-18 as under:

“18. In the most recent judgment in State of H.P. V. Shashi Kumar [(2019)

3 SCC 653 : (2019) 1 SCC (L&S) 542 the earlier decisions governing the

principles of compassionate appointment were discussed and analysed.

3

. (2020) 7 SCC 617

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Speaking for the Bench, Dr.D.Y.Chandrachud, J. reiterated that

appointment to any public post in the service of the State has to be made

on the basis of principles in accord with Articles 14 and 16 of the

Constitution and compassionate appointment is an exception to the general

rule. The dependants of a deceased government employee are made

eligible by virtue of the policy on compassionate appointment and they

must fulfil the norms laid down by the State’s policy.”

(emphasis supplied)

18. A provision is made under the Rules applicable to provide employment

on compassionate grounds to any one of the dependants’ of the deceased

employee, who may be eligible as per the stipulations. It is apt to say that

mere death of an employee in harness, does not automatically entitle one of

his family members to have such employment.Doubtlessly, seeking such an

employment is not a vested right of the dependants of the deceased. It is

imperative to first consider thefinancial condition of the parties concerned.

The object of compassionate appointment is to see that the immediate

financial dearth in family due to the death is filled up. For this reason,

unreasonable delay in compassionate appointments is undesirable. On the

aspect of delay in providing appointment on compassionate grounds, in

addition to the discussion on State of West Bengal v. Debebrata Tiwari

and others supra, the decision of the Hon’ble Apex Court in Smt.Sushma

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Gosain and Others V. Union of India and Others4

is also an important

reference. Para 9 of the same reads:

“9. We consider that it must be stated unequivocally that in all claims for

appointment on compassionate grounds, there should not be any delay in

appointment. The purpose of providing appointment on compassionate

grounds is to mitigate the hardship due to death of the bread earner in

the family. Such appointment should, therefore, be provided

immediately to redeem the family in distress. It is improper to

keep such case pending for years. If there is no suitable post

for appointment supernumerary post should be created to

accommodate the applicant.”

(emphasis supplied)

19. Similarly, in Malaya Manda Sethy v. State of Orissa and

Others5

the Hon’ble Apex Court clearly observed at paragraphs 15 to 18 as;

“15. In view of the above discussion and for the reasons stated above,

the impugned judgment and order passed by the High Court is hereby

quashed and set aside. The Respondents are directed to consider the

case of the appellant for appointment on compassionate grounds

under the 1990 Rules as per his original application made in July,

2010 and if he is otherwise found eligible to appoint him on the post

of Junior Clerk. The aforesaid exercise shall be completed within a

period of four weeks from today. However, it is observed that the

appellant shall be entitled to all the benefits from the date of his

4

(1989) 4 SCC 468

52022 SCC OnLine SC 684

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appointment only. The present appeal is accordingly allowed. However,

in the facts and circumstances of the case, there shall be no order as

to costs.

16. Before parting with the present order, we are constrained to

observe that considering the object and purpose of appointment on

compassionate grounds, i.e., a family of a deceased employee may be

placed in a position of financial hardship upon the untimely death of

the employee while in service and the basis or policy is immediacy in

rendering of financial assistance to the family of the deceased

consequent upon his untimely death, the authorities must consider and

decide such applications for appointment on compassionate grounds as

per the policy prevalent, at the earliest, but not beyond a period of six

months from the date of submission of such completed applications.

17. We are constrained to direct as above as we have found that in

several cases, applications for appointment on compassionate grounds

are not attended in time and are kept pending for years together. As a

result, the applicants in several cases have to approach the concerned

High Courts seeking a writ of Mandamus for the consideration of their

applications. Even after such a direction is issued, frivolous or vexatious

reasons are given for rejecting the applications. Once again, the

applicants have to challenge the order of rejection before the High

Court which leads to pendency of litigation and passage of time, leaving

the family of the employee who died in harness in the lurch and in

financial difficulty. Further, for reasons best known to the authorities

and on irrelevant considerations, applications made for compassionate

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appointment are rejected. After several years or are not considered at

all as in the instant case.

18.If the object and purpose of appointment on

compassionate grounds as envisaged under the relevant

policies or the rules have to be achieved then it is just and

necessary that such applications are considered well in time

and not in a tardy way. We have come across cases where

for nearlytwo decades the controversy regarding the

application made for compassionate appointment is not

resolved. This consequently leads to the frustration of the

very policy of granting compassionate appointment on the

death of the employee while in service. We have, therefore,

directed that such applications must be considered at an earliest point

of time. The consideration must be fair, reasonable and based on

relevant consideration. The application cannot be rejected on

the basis of frivolous and for reasons extraneous to the facts

of the case. Then and then only the object and purpose of

appointment on compassionate grounds can be achieved.”

(emphasis supplied)

20. When it is the contention of the Respondent Nos., 1 to 4 that the

application cannot be processed for the want of Annexure-II, the argument

that the W.P. is filed at a pre-matured stage cannot be countenanced. The

deceased died in the year 2014. Petitioner filed the application in the year 2015

seeking to consider her for employment on compassionate grounds. She has

also addressed a letter to the bank in clear terms expressing her inability to

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comply with the Annexure-II because of non-cooperation of other dependants

of her husband. This means that the application could not even be processed

for about 10 years. This is not a case where there are other contesting family

members as dependants, seeking appointment. In fact, the Petitioner has also

undertaken to take care of her in-laws from a part of her salary. Article 21 of

the Constitution of India in its widest spirit includes right to livelihood and

right to live with dignity. This Court is aware of its limitations that the policy

cannot be re-written, however in view of the facts and circumstances of the

case, a hyper-technical view cannot be taken that would ultimately frustrate

the object of employment on compassionate grounds. Thus, this Court feels

that it is apposite to direct the Respondent-Bank to consider the application of

the petitioner for compassionate appointment without insisting for Annexure-II

treating it as an exceptional case, as expeditiously as possible within a period of

(3) three months from the date of receipt of a copy of this Order.

21. Accordingly, the Writ Petition is disposed of. No costs.

As a sequel, pending applications, if any, shall stand closed.

JUSTICE VENKATA JYOTHIRMAI PRATAPA

02.01.2024

Mjl /*

L.R. copy to be marked

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HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

WRIT PETITION No. 33258 OF 2018

02.01.2024

Mjl/*

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IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

* * * *

W.P. No. 33258 of 2018

Between:

B.Nagalakshmi W/o.late B.N.K.Kishore,

Hindu, aged about 28 years, Occ: House wife,

R/o.H.No.53-24-19/1, Maddilapalem,

Visakhapatnam – 530 013.

.....Petitioner

AND

The Branch Manager,

State Bank of India, Main Branch,

Kakinada, East Godavari district,

State of Andhra Pradesh and five others

.....Respondents

DATE OF JUDGMENT PRONOUNCED : 02.01.2024

SUBMITTED FOR APPROVAL

HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

1. Whether Reporters of Local Newspapers

may be allowed to see the Judgments ? Yes/No

2. Whether copies of Judgment may be

marked to Law Reporters/Journals ? Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment ? Yes/No

 _____________________________________

 VENKATA JYOTHIRMAI PRATAPA, J

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* HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

+ W.P. No. 33258 of 2018

% 02.01.2024

Between:

# B.Nagalakshmi W/o.late B.N.K.Kishore,

Hindu, aged about 28 years, Occ: House wife,

R/o.H.No.53-24-19/1, Maddilapalem,

Visakhapatnam – 530 013.

.....Petitioner

Versus

$ The Branch Manager,

State Bank of India, Main Branch,

Kakinada, East Godavari district,

State of Andhra Pradesh and five others

....Respondents

! Counsel for the Petitioner : Sri Rayaprolu Srikanth

 ^ Counsel for the Respondents 1 to 4: Sri K.B.Ramanna Dora,

 Standing Counsel

 Counsel for the Respondent No.6 : Sri K.Lakshmana Raju

< Gist :

> Head Note:

? Cases Referred:

1. 2023 LiveLaw (SC) 175

2. (2019) 4 SCC 285

3. (2020) 7 SCC 617

4. (1989) 4 SCC 468

5. 2022 SCC OnLine SC 684

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