INDIAN BANK & ORS.versusPROMILA & ANR.

408                      [2020]
              SUPREME COURT     1 S.C.R. 408
                             REPORTS                      [2020] 1 S.C.R.


A                          INDIAN BANK & ORS.
                                      v.
                             PROMILA & ANR.
                        (Civil Appeal No. 2798 of 2010)
B                            JANUARY 08, 2020
          [SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ. ]
             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 –
C
      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,
D     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
E
      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
F     – 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
G
      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
H
                                     408
          INDIAN BANK & ORS. v. PROMILA & ANR.                            409


Scheme of 4.4.1979, the terms of which continued to be applicable         A
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
                                                                          B
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         C
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
                                                                          D
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            E
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                    F
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           G
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

                                                                          H
410           SUPREME COURT REPORTS                      [2020] 1 S.C.R.


A     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
B
      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
C     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
D
      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
E     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
F
      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 :
G           [2019] 1 SCR 533 – relied on.
                            Case Law Reference
      [2015] 9 SCR 724              relied on               Para 2
      [2019] 1 SCR 533              relied on               Para 17
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          INDIAN BANK & ORS. v. PROMILA & ANR.                               411


      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2798                   A
of 2010.
      From the Judgment and Order dated 11.08.2008 of the High Court
of Punjab and Haryana at Chandigarh in CWP No. 17105 of 2006.
      Vikalp Mudgal, Shashwat Sharma, Ms. Madhu Sikri, Advs. for
the Appellants.                                                              B

     Debesh Panda, Chanchal Kumar Ganguli, Advs. for the
Respondents.
      The Judgment of the Court was delivered by
      SANJAY KISHAN KAUL, J.                                                 C
       1. One Jagdish Raj, husband of respondent No.1 and father of
respondent No.2, was appointed as a Clerk-cum-Shroff in the appellant-
Bank, where he continued to work till his unfortunate demise on
15.1.2004. He was drawing a gross monthly salary of Rs.16,486.60 at
the time of his demise. Consequent to his death, the benefits available      D
for the family of Jagdish Raj were calculated and sanctioned to the tune
of Rs.5,45,872, but on account of deductions for staff housing and vehicle
loans, post adjustment, a net payment of Rs.2,99,672 was made to the
family, apart from the grant of a monthly pension of Rs.5,574.12. An
issue has been raised about the amount being paid less to the family of
                                                                             E
Jagdish Raj, but that has really not been debated before us.
       2. Late Shri Jagdish Raj was survived by his wife and three minor
children. As it transpires, respondent No.1 was already employed and
earning a salary at the time of the demise of her husband, which
information came to the knowledge of the appellant-Bank, later. The
                                                                             F
cause for the present dispute arises from an application made on behalf
of the son (respondent No.2 herein) seeking compassionate employment
on account of demise of Shri Jagdish Raj. We may add at the threshold
that this application was made on 24.1.2004, on which date the son was
a minor. Needless to say that any such request for compassionate
employment had to be in terms of the prevalent scheme at that time.          G
There has been some confusion as to the scheme applicable and, thus,
this Court directed the scheme prevalent, on the date of the death, to be
placed before this Court for consideration, as the High Court appears to
have dealt with a scheme which was of a subsequent date. The need
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412                SUPREME COURT REPORTS                        [2020] 1 S.C.R.


A     for this also arose on account of the legal position being settled by the
      judgment of this Court in Canara Bank & Anr. v. M. Mahesh
      Kumar,1qua what would be the cut-off date for application of such
      scheme. It is trite to emphasise, based on numerous judicial
      pronouncements of this Court, that compassionate appointment is not an
      alternative to the normal course of appointment, and that there is no
B
      inherent right to seek compassionate appointment. The objective is only
      to provide solace and succour to the family in difficult times and, thus,
      the relevancy is at that stage of time when the employee passes away.
      An aspect examined by this judgment is as to whether a claim for
      compassionate employment under a scheme of a particular year could
C     be decided based on a subsequent scheme that came into force much
      after the claim. The answer to this has been emphatically in the negative.
      It has also been observed that the grant of family pension and payment
      of terminal benefits cannot be treated as a substitute for providing
      employment assistance. The crucial aspect is to turn to the scheme
      itself to consider as to what are the provisions made in the scheme for
D
      such compassionate appointment.
             3. On the relevant scheme being placed before us, what emerges
      is that vide Circular No.56/79, a scheme was brought into force for
      compassionate appointment on 4.4.1979. This is the scheme which was
      applicable on 15.1.2004, i.e. on the date of the death of Shri Jagdish Raj.
E     A provision was made for compassionate appointment, but subject to
      the terms & conditions of the scheme. Para 7 of the scheme reads as
      under:
               “7. According to an agreement with the Union, the dependant will
               either be paid gratuity as if the deceased employee has served
F              the full term of service, which will be calculated as per gratuity
               rules on the basis of his/her last drawn pay at the time of his/her
               death or given the option for appropriate employment for one
               dependent subject to the rules framed for appointment under
               compassionate grounds. It is therefore, obvious that appointments
G              under compassionate grounds will be open only to dependents
               who do not opt for payment of gratuity for the full term of service
               of the employee who died while in service.”
            The aforesaid paragraph, thus, makes it clear that either gratuity
      or compassionate appointment can be availed of by the dependents.
      1
H         (2015) 7 SCC 412
          INDIAN BANK & ORS. v. PROMILA & ANR.                                 413
                [SANJAY KISHAN KAUL, J.]

The result is that if the dependents opted for payment of gratuity for the     A
term of service of the employee who died while in service, no
compassionate appointment could be granted. The admitted position is
that the benefit of gratuity was availed of by the dependents in the present
case.
      4. Another relevant paragraph of the scheme is para 8, which             B
reads as under:
      “8. No person or dependent can claim, as a matter of right,
      employment in the Bank under this Scheme and appointments
      will be considered purely at the sole discretion of the Bank. The
      Bank reserves to itself the right to modify, suspend, or withdraw        C
      the scheme at any time at its sole discretion and the Bank’s decision
      in this regard will be final and cannot be called in question.”
      The aforesaid paragraph makes the consideration for appointment
on compassionate grounds at the discretion of the Bank, and not as a
matter of right. This really only emphasizes the settled position of law,      D
discussed aforesaid.
      5. A new Scheme was promulgated on 5.11.1985, but para 4 of
the Scheme clarifies as under:
      “the norms prescribed under scheme for appointment in the Bank
      of a dependent of a confirmed employee who dies while in service         E
      remains unchanged.”
       Thus, though this may be a new Scheme, it, in effect, continued
the older Scheme, and that is the reason the terms of that Scheme applied
on the date of death of Shri Jagdish Raj, on 15.1.2004.
                                                                               F
      6. The first communication was addressed by respondent No.1,
on 24.1.2004, to the CMD of the appellant-Bank, seeking compassionate
appointment for her son, respondent No.2. The aforesaid arrangement,
thus being applicable even at that time.
       7. A development post the demise, and this application, was a
new Scheme being brought into force through a Board meeting of the             G
appellant-Bank w.e.f. 27.4.2004, by way of Circular No. PRNL/09/2004-
05, in supersession of the previous Scheme. However, the qualification
for such Scheme was the death of an employee on account of injury
sustained while performing official duty, with a second condition that the
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414             SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A     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 and that the application for such compassionate appointment
      had to be submitted within three (3) months from the demise of such
      deceased employee. There was also an option to provide ex gratia
B
      compensation with the same second qualification as aforesaid, if such
      application is made within three (3) months from the demise of the
      deceased employee. The Scheme also refers to a lumpsum compensation,
      even where this 60% bar is crossed, and for Clerks like Shri Jagdish Raj,
      the amount specified is Rs.2 lakh.
C            8. The appellant-Bank, thus, in response to the application for
      compassionate appointment, sent a communication to respondent No.1,
      asking her to submit a fresh application under the new Scheme within a
      month, i.e., by 9.8.2004. The intent, really, was that only cash
      compensation could be made available. This period, for tendering an
D     application seeking cash compensation, was further extended repeatedly,
      but it appears that the respondents did not apply for the same as they
      appeared to be only interested in compassionate appointment.
             9. A Circular No. PRNL/72/2005-06 dated 30.8.2005 was issued
      whereby the benefit of compassionate appointment was denied to a
E     dependent of an employee who died in harness. Thus, only cash
      compensation was the benefit which would accrue. The norm of 60%
      eligibility criterion was still made applicable and the application had to be
      preferred within six (6) months from demise. This Scheme came into
      force from 10.8.2005.

F            10. Respondent No.1 made available her gross salary declaration
      of Rs.15,912 only on 17.2.2006, which crossed the benchmark of 60%
      and, thus, the respondents were informed vide letters dated 10.5.2006
      and 30.6.2006 that even cash compensation was not available to the
      family, and that there could be no question of compassionate appointment.

G           11. It is in the aforesaid circumstances that the respondents filed
      CWP No.17105/2006 on 27.10.2006, seeking consideration of
      compassionate appointment under the 2004 Scheme, upon respondent
      No.2 attaining age of majority. Ex gratia benefits, which were held
      back, were also sought, along with interest.

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              INDIAN BANK & ORS. v. PROMILA & ANR.                            415
                    [SANJAY KISHAN KAUL, J.]

       12. The High Court of Punjab & Haryana vide impugned order             A
dated 11.8.2008, granted Rs.2 lakh ex gratia payment, while leaving it
open to the respondents to make an appropriate application regarding
any terminal benefits, if not paid. This Rs.2 lakh benefit is in consonance
with the subsequent Schemes of 2004 and 2005 which had come into
force, and appears to have been so done more out of sympathy than any
                                                                              B
other factor.
      13. The appellant-Bank aggrieved by this order filed a Special
Leave Petition and interim order of stay was granted on 16.1.2009. Leave
was granted subsequently and the interim order was made absolute.
      14. We have examined the aforesaid factual matrix and the               C
contentions raised by learned counsel for the parties.
        15. The question of applicability of any subsequent Scheme really
does not apply in view of the judgment of this Court in Canara Bank2.
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          D
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   E
appointment really was not available to the respondents.
        16. We may also notice that 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            F
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                G
beyond the prescribed limit, so as to disentitle them from both,
compassionate employment and ex gratia payment.
      17. We have to keep in mind the basic principles applicable to the
cases of compassionate employment, i.e., succor being provided at the
2
    (supra)                                                                   H
416                SUPREME COURT REPORTS                      [2020] 1 S.C.R.


A     stage of unfortunate demise, coupled with compassionate employment
      not being an alternate method of public employment. If these factors
      are kept in mind, 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
B
      clarified aforesaid, 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 this Court in Canara Bank3. It is
      not for the Courts to substitute a Scheme or add or subtract from the
      terms thereof in judicial review, as has been recently emphasized by this
C     Court in State of Himachal Pradesh & Anr. v. Parkash Chand4.
             18. We may have sympathy with the respondents about the
      predicament they faced on the demise of Shri Jagdish Raj, but then
      sympathy alone cannot give remedy to the respondents, more so when
      the relevant benefits available to the respondents have been granted by
D     the appellant-Bank and when respondent No.1, herself, was in
      employment having monthly income above the benchmark.
            19. We have, thus, no option but to reluctantly set aside the
      impugned order and dismiss the writ petition originally filed by the
      respondents.
E            20. The appeal is accordingly allowed, leaving the parties to bear
      their own costs.


      Divya Pandey                                                Appeal allowed.

F




G




      3
          (supra)
      4
H         (2019) 4 SCC 285