BANK OF BARODA & ORSversusBALJIT SINGH

             [2023] 10 S.C.R. 977 : 2023 INSC 584                        977


                   BANK OF BARODA & ORS                                  A
                                  v.
                          BALJIT SINGH
                  (Civil Appeal No(s). 624 of 2017)
                           JUNE 21, 2023                                 B
      [B. V. NAGARATHNA AND MANOJ MISRA, JJ.]
       Service Law – Compassionate Appointment – Criterion
regarding financial status, non-fulfilment of – Held: Appointment
of a candidate on compassionate basis does not create any vested
                                                                         C
right – It is only when a candidate is covered under all clauses of
the Scheme applicable that he/she could be considered for
compassionate appointment – In the present case, the 1998 Scheme
applicable to the case of the respondent disentitles a candidate for
compassionate appointment benefit on the application of the formula
for calculation of monthly income if the same is not less than 60%       D
of the total emoluments which the deceased was drawing at the time
of his death – Since, the monthly income of the family was not less
than 60% of the total emoluments which the deceased (respondent’s
father) was drawing at the time of his death, the case of the
respondent cannot be considered on compassionate basis – High
Court erred in setting aside the judgment of the First Appellate Court   E
and restoring the judgment of Trial Court – Judgment of High Court
set aside – Suit of the respondent seeking declaration and mandatory
injunction vis-à-vis his appointment in the appellant-Bank on
compassionate basis, dismissed – Suit.
      Suit – Relief of compassionate appointment sought – Held:          F
Eligibility for compassionate appointment must be as per the
applicable scheme – Courts cannot substitute a scheme or add or
subtract from the terms thereof in exercise of judicial review – This
would also apply to a suit filed seeking the relief of compassionate
appointment – Service Law.                                               G
      Balbir Kaur and Another vs. Steel Authority of India
      Ltd. (2000) 6 SCC 493 : [2000] 3 SCR 1053 –
      distinguished.
      General Manager (D&PB) and Others vs. Kunti Tiwary
      (2004) 7 SCC 271; N.C. Santhosh vs. State of                       H
                                 977
978             SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A             Karnataka (2019) 7 SCC 617; State of Himachal
              Pradesh vs. Parkash Chand (2019) 4 SCC 285 : [2019]
              1 SCR 533; Indian Bank vs. Promila (2020) 2 SCC
              729 : [2020] 1 SCR 408; State of Himachal Pradesh
              vs. Shashi Kumar (2019) 3 SCC 653 : [2019] 2 SCR
              432 – relied on.
B
              Mohd. Farooq Bhati vs. S.B.B.J. (2009) 2 SCT 353 –
              referred to.
                               Case Law Reference
      [2000] 3 SCR 1053                   distinguished               Para 8
C
      [2019] 1 SCR 533                    relied on                   Para 14
      [2020] 1 SCR 408                    relied on                   Para 14
      [2019] 2 SCR 432                    relied on                   Para 15

D             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 624 of
      2017.
            From the Judgment and Order dated 11.12.2015 of the High Court
      of Punjab & Haryana at Chandigarh in RSA No. 338 of 2011.
             Ms. Praveena Gautam, Pawan Shukla, Ms. Indira Goswami, Advs.
E     for the Appellants.
            Himanshu Sharma, Ms. Aditi Sharma, Rahul Jasoria, Ram Nivas
      Sharma, Arun Raghav, Nitin Sharma, Digvijay Raghav, Rajesh Srivastava,
      Advs. for the Respondent.
              The following Judgment of the Court was delivered:
F
                                   JUDGMENT
             This appeal arises out of a judgment and decree passed by the
      High Court of Punjab and Haryana in RSA No.338 of 2011 dated
      11.12.2015. By the said judgment, the High Court has set aside the
G     judgment of the First Appellate Court dated 16.12.2009 passed in C.A.
      No.75 of 2008 and has restored the judgment of the Trial Court passed
      in Original Suit No.201 of 2005. Consequently, the relief sought for by
      the respondent in the suit, i.e., declaration and mandatory injunction vis-
      a-vis his appointment in the appellant-Bank on compassionate basis has
      been granted.
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          BANK OF BARODA & ORS v. BALJIT SINGH                                979


      2. Briefly stated, the facts of the case are that the respondent’s      A
father who was working in the appellant-Bank, 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.
       3. It is the case of the respondent herein that on the death of the    B
respondent’s father in harness, his mother made an application for
appointment of the respondent on compassionate grounds to the post of
Peon under the 1998 Scheme. The said application for compassionate
appointment was filed on 21.02.2000. During the pendency of the said
application under consideration, the appellant-Bank announced another
                                                                              C
Scheme for appointment of the dependents of deceased employees on
compassionate grounds on 10.03.2004. Be that as it may, four years
subsequent to the death of his father, another representation on behalf
of the Respondent was made to the appellant-Bank on 25.03.2004 in
order to bring to the notice of the Bank the fact that he had completed
his matriculation in March 2004. Subsequently, the Bank considered the        D
application of the respondent and on 08.06.2004 rejected the same. Being
aggrieved, the respondent filed the Original Suit seeking the relief of
declaration and mandatory injunction against the Bank. In the said suit,
the appellant-Bank filed its written statement and after trial, the learned
Trial Judge decreed the suit and directed that the respondent be appointed
                                                                              E
on compassionate grounds.
       4. Being aggrieved by the judgment and decree dated 16.10.2008,
the appellant-Bank filed an appeal before the Court of the Additional
District Judge, which by its judgment dated 16.12.2009 allowed the appeal
and set aside the decree of the Trial Court. The respondent, thereafter,
                                                                              F
filed a Regular Second Appeal before the High Court of Punjab and
Haryana assailing the judgment of the First Appellate Court. The High
Court, while considering the Second Appeal formulated two questions
of law but while answering the same in substance, considered the
questions of law together and by the impugned judgment dated 11.12.2015
set aside the judgment of the First Appellate Court and restored the          G
judgment and decree of the Trial Court. Hence, this appeal by the
appellant-Bank before this Court.
      5. We have heard Ms.Praveena Gautam, learned counsel for the
appellant-Bank and Mr.Himanshu Sharma, learned counsel for the
respondent and perused the material placed on record.                         H
980             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A             6. Learned counsel for the appellant made a two-fold submission
      while assailing the judgment of the High Court. In the first instance, she
      submitted that the High Court was not right in answering the second
      question of law in favour of the respondent without appreciating the
      factual aspects of the matter. Elaborating the said contention, she drew
      our attention to various clauses of the Scheme dated 18.08.1998 which
B
      had been issued by the Bank by way of a Circular, to contend that the
      respondent did not fulfill the criterion regarding financial status of a
      candidate, within clause (c) of “Important points”, which gives the formula
      to be applied in order to consider the case of a candidate for appointment
      on compassionate basis. In this regard, she drew our attention to the
C     application made by the respondent disclosing the income of his deceased
      father as well as the income of the family. She submitted that having
      regard to the true position of the income of the family, the respondent was
      not at all eligible to be considered for appointment on compassionate basis.
             7. She further submitted that the first question of law has not at all
D     been considered by the High Court in the context of the eligibility of the
      respondent. Further, our attention was drawn to clause ‘A’ regarding the
      educational qualification of the candidate and it was submitted that the
      respondent had not completed his matriculation within a period of four
      years from the date of death of his father and hence, was not entitled to
      be considered for the appointment on compassionate basis as a clerk
E     and was over qualified to be appointed as a Peon.
             8. In the above backdrop, learned counsel for the appellant drew
      our attention to certain judgments of this Court, namely, General
      Manager (D&PB) and Others vs. Kunti Tiwary reported in (2004) 7
      SCC 271, Balbir Kaur and Another vs. Steel Authority of India Ltd.
F     reported in (2000) 6 SCC 493 and N.C. Santhosh vs. State of Karnataka
      reported in (2019) 7 SCC 617 which is a judgment of a Three Judge
      Bench of this Court, to buttress the submission in support of the proposition
      that compassionate appointment is an exception to recruitment and that
      no vested right is available to a party to seek compassionate appointment
G     as a matter of right. She also submitted that in fact, the suit seeking the
      relief of declaration and mandatory injunction as against the appellant-
      Bank was not maintainable.
            9. Per contra, learned counsel for the respondent supported the
      judgment of the High Court which has restored the judgment of the Trial
H     Court and had directed the appellant-Bank to consider the case of the
          BANK OF BARODA & ORS v. BALJIT SINGH                                    981


respondent on compassionate grounds. He brought to our notice, the                A
fact that as on the date of the respondent’s father’s death i.e., 16.05.1999,
the respondent had already passed 8th Standard and thereafter, he also
acquired his matriculation and intimated to the Bank that he had the
eligibility to be considered for compassionate appointment. He further
submitted that the application which was filed on compassionate basis
                                                                                  B
was filled up by the Bank itself and the details stated in the said application
were not accurate and that the respondent was entitled to be considered
for an appropriate post in the appellant-Bank.
       10. Learned counsel further submitted that the delay in
consideration of the respondent’s application, coupled with the fact that
                                                                                  C
the rejection of the application without any reasoning had caused prejudice
to the respondent and that there is no merit in the appeal and, therefore,
the same may be dismissed.
      11. Having heard the learned counsel for the respective parties,
we find that the following points would arise for our consideration: -
                                                                                  D
          (1) Whether the High Court was justified in setting aside the
          judgment of the First Appellate Court and restoring the judgment
          and decree of the Trial Court while answering the questions of
          law in favour of the respondent and against the Bank?
          (2) What order?                                                         E
      12. It is necessary to reiterate that the appointment of a candidate
on compassionate basis does not create any vested right and that it is
only when a candidate is covered under all clauses of the Scheme
applicable at the relevant point of time that he/she could be considered
for compassionate appointment.                                                    F
       13. In Balbir Kaur vs. Steel Authority of India Ltd., (supra) it
was observed that the family benefit scheme assuring monthly payment
to the family of deceased employee on the facts therein was not a
substitute for compassionate appointment by the Steel Authority of India
– Respondent in the said case. The said case proceeds on its own facts.           G
The said judgment can be distinguished from the facts of the instant
case as the 1998 Scheme specifically disentitles a candidate for
compassionate appointment benefit on the application of the formula for
calculation of monthly income if the same is not less than 60% of the
total emoluments which the deceased was drawing at the time of his
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982             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A     death. The object is that it is only when a deceased employee’s family is
      in penury and without any source of livelihood when the employee died
      in harness, compassionate appointment can be considered. Since
      appointment on compassionate basis is an exception to the general rule
      for appointment by an open invitation, the exception has to be resorted
      to only when the candidate and his family is in penury so as to provide
B
      immediate succor on the death of the employee in harness. The same
      has been observed in General Manager (D&PB) vs. Kunti Tiwary
      (supra). In N.C.Santhosh vs. State of Karnataka (supra) a three Judge
      Bench of this Court reiterated that appointment on compassionate basis
      is a concession and not a right and the criteria laid down in the Rules and
C     Schemes applicable must be satisfied by all aspirants. Therefore, the
      case for compassionate appointment has to be considered in accordance
      with the prevalent Scheme. Similarly, in State of Himachal Pradesh
      Vs. Shashi Kumar, (supra), this Court has observed that compassionate
      appointment being an exception to the general rule, the dependents of
      deceased government employee are made eligible by virtue of the policy
D     of compassionate appointment and they must fulfil the terms of the policy
      which are framed by the States/Employers.
             14. It is to be noted that in the instant case, the respondent filed a
      suit for declaration and mandatory injunction seeking appointment on
      compassionate basis which was decreed by the Trial Court and upheld
E     and affirmed by the High Court. In State of Himachal Pradesh vs.
      Parkash Chand reported in (2019) 4 SCC 285, it has been categorically
      held that a direction by a High Court to consider cases for compassionate
      appointment dehors the terms of the policy is impermissible as it would
      amount to re-writing the terms of the policy. This aspect has been
F     overlooked by the High Court in the instant case. In a similar vein, in
      Indian Bank vs. Promila reported in (2020) 2 SCC 729, it has been
      observed that 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. The
      aforesaid dicta would also apply to a suit filed seeking the relief of
G     compassionate appointment.
            15. In this regard, reference could be made to the judgment of
      this Court in State of Himachal Pradesh vs. Shashi Kumar reported in
      (2019) 3 SCC 653 wherein at Paragraphs 18-19 the aforesaid terms
      have been clearly stated.
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          BANK OF BARODA & ORS v. BALJIT SINGH                                   983


       16. Therefore, it is necessary to consider the Scheme which is            A
applicable to the respondent in the instant case. It is not in dispute between
the parties that the Scheme dated 18.09.1998 which has been issued by
way of a Circular is 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
                                                                                 B
compassionate appointment have been prescribed and they are to be
considered by the employer. In this context, it would be useful to refer
the judgment of the High Court which has raised two questions of law
which are as follows:
          i) Whether the case of the appellant can be considered for
          compassionate employment vis-a-vis the Scheme which was                C
          in vogue at the time when Balbir Singh died or subsequent to
          that?
          ii) Whether advancement of family pension can be the ground
          for non-suiting the case of compassionate employment?
                                                                                 D
       17. While answering the second question, the High Court has
referred to a judgment of the Rajasthan High Court in Mohd. Farooq
Bhati vs. S.B.B.J. reported in (2009) 2 SCT 353 which had relied upon
the judgment of this Court in Balbir Kaur (supra) to hold that the objection
with regard to the family income cannot be really considered as an
objection to deny compassionate appointment. As far as the first question        E
of law is concerned, the High Court has 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 has 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            F
applicable. However, we find that while answering the questions of law,
the High Court has erred on both counts.
       18. In this regard, we would like to consider 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.           G
The relevant clause of the Scheme reads as under:
          “b) Dependent of an employee dying in harness can be
          considered for compassionate appointment provided the family
          is without means of livelihood and the condition of the family is
          penurious.
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984            SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A              c) Calculation formula for income:
               Following formula would be followed for arriving at the financial
               position or income of the family:
               The total of the following amounts received as Terminal Benefits
               will form the available resources:
B
                  i. Balance of provident fund.
                  ii. Gratuity.
                  iii. Additional Retirement Benefits.
                  iv. Investments made from loan from others.
C
               From the above, following outstanding financial liabilities to be
               deducted:
                  i. Housing loan
                  ii. Vehicle loan
D
                  iii. Other loans from bank
                  iv. Loan from others
               After arriving at the net amount remaining with the family,
               interest @11% be applied to arrive at monthly income of the
E              family by further taking into consideration:
                  i. Net salary of dependent family members viz., spouse/
                  son/ daughter/ dependent unmarried brother/dependent
                  unmarried sister.
                  ii. Pension (monthly)
F
                  iii. Income from savings and other investments.
               After arriving at the monthly income as above, if the same is
               less than 60% of the total emoluments (which the deceased
               was drawing at the time of death) less Tax @ 15% (if the
G              income is more than Rs.10,000/- p.m.) the case for
               compassionate appointment can be considered.”
            19. While applying the said formula to the case at hand, it is
      noted from the details submitted with regard to the deceased employee
      and his dependents that the income of the widow of the deceased was
      Rs.6,845/- per month (basic pay of Rs.4140/- per month) as she was
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           BANK OF BARODA & ORS v. BALJIT SINGH                                 985


employed in the Health Department of the State Government, and her              A
family pension was Rs.3,478/- per month. Thus, the gross total income
of the family per month comes to Rs.10,323/- and the net income is
Rs.7,618/- per month. The said figure has been taken into consideration
while applying the formula referred to above and after applying the said
formula to the case of the respondent, we find that the monthly income
                                                                                B
so arrived at is not less than 60% of the total emoluments and thus, the
case of the respondent cannot 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 is lesser than
the total net income of the deceased’s family. Thus, the total income of
the family is not less than 60% of the total emoluments which the deceased      C
was drawing at the time of his death as per the Scheme under
consideration. In that view of the matter, 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.
       20. As far as the first question of law is concerned, it has been        D
clarified during the course of arguments by the learned counsel for the
respondent that the respondent 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. We do not think that the said argument
would be of assistance to the respondent inasmuch as the respondent is          E
not qualified or is eligible to be considered for said post on compassionate
basis having regard to the family income of the respondent.
       21. In the circumstances, we are of the view that the High Court
was not right in answering the questions of law in favour of the respondent
and thereby, setting aside the judgment of the First Appellate Court and        F
restoring the judgment of the Trial Court.
      22. In the result, the appeal is allowed and the judgment of the
High Court is set aside and the suit of the respondent is dismissed.
       23. The Parties to bear their respective costs.                          G
       24. Pending application(s), if any, shall stand disposed of.

Divya Pandey                                                  Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)

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