allahabad high court

Allahabad High Court: In batch of appeals against orders passed by Single Judge directing the Banks to consider the application of the respondents for appointment under the Dying-in-Harness Scheme, dated 10-5-2019, the division bench of Manoj Kumar Gupta and Donadi Ramesh, JJ. has opined that if there is no scheme for compassionate appointment applicable on date of death, then no such right accrues except in cases where a future scheme unequivocally declares that it would apply retrospectively. Further, it has referred to a larger bench the question that whether scheme for appointment on compassionate ground/payment of ex gratia, which has been adopted by Regional Rural Banks (‘RRB’) would operate retrospectively.

All these appeals involve interpretation of certain Clauses of the Scheme for Appointment on Compassionate ground/Payment of Ex gratia, to find out whether applications filed for compassionate appointment by dependents of a deceased employee of the Bank within a timespan of five years prior to the date of enforcement of the Scheme, would be covered under the Scheme or not.

The Court noted that the Government of India letter dated 31-12-2018 stipulated that the Scheme shall be effective from the date on which the Board of RRB adopts the same. Accordingly, the National Bank for Agriculture and Rural Development (NABARD) advised the individual banks to adopt the same. Boards of different RRB’s adopted the scheme on different dates. In the case of the bank, it became effective from 01-03-2019.

The Court noted that the said scheme was a subject matter of consideration by a Co-ordinate Bench in Chairman, Baroda U.P. Bank v. Jitendra1, wherein it was held that a conjoint reading of Clauses 8.1 and 8.2 of the Scheme leads to the conclusion that even if the employee had died “five years ago”, discretion has been given to the Bank to consider such applicants for compassionate appointment.

The Banks contended that the impugned judgment of Single Judge as well as the judgment of Co-ordinate Bench did not take into consideration the judgments of the Supreme Court, wherein it has been held that the crucial date for determining right to compassionate appointment is the date of death of the employee and if on that date, there was no such scheme, he could not be given benefit of a subsequent scheme, unless the Scheme itself makes provision therefor.

The Court noted that the anchor sheet of the case of the Banks, is the judgment in State v. Bheemesh, 2021 SCC OnLine SC 1264 , wherein the Court has noted an apparent conflict between two lines of decisions, one taking the view favouring the Banks and another supporting the case of the respondents. The Supreme Court also noted the fact that in SBI v. Sheo Shankar Tewari, (2019) 5 SCC 600 , the Supreme Court referred the matter to a Larger Bench. However, the reference has not been answered so far, and since the reference was made, the Supreme Court has decided four more cases dealing with the same issue.

Further, the Court noted that out of these four judgments, the judgment in N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617 took note of the reference pending before the Larger Bench, while holding that where the benefit under the existing Scheme was taken away or substituted with a lesser benefit, judicial opinion was in favour of applying the new Scheme, but in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, the Scheme applicable on the date of death of the employee was applied. This is because compassionate appointments were always considered to be an exception to the normal method of recruitment and looked down upon with lesser compassion for the individual and greater concern for the rule of law. Further, it has been held that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor like date of filing of the application or date of its consideration.

In the present case, the Court said that on the date of death of the employee, there was no Scheme in force for appointment of the dependent family member on compassionate basis. The Scheme for compassionate appointment came into effect from 1-3-2019. As the Scheme confers right to be considered for compassionate appointment for the first time after it was enforced, it definitely confers new and better rights then what were available at the time of death of the employee. Applying the legal principles in Bheemesh (supra), the Scheme perhaps would not apply. However, the Court noted that, in the impugned order as well as the judgment of the Co-ordinate Bench the view taken is that by virtue of Clause 8.1 and 8.2, the Scheme would have retrospective operation.

The Court said that compassionate appointments are never a part of service condition of any employee or a vested right. It cannot be given in the absence of rules or regulations issued on this behalf. The right comes into existence for the first time upon death of the employee in harness. If there is no scheme for compassionate appointment applicable on date of death, then no such right accrues except in cases where a future scheme unequivocally declares that it would apply retrospectively.

Moreover, it said that in Jitendra(supra), the Coordinate bench gave a wider interpretation of the Scheme, as the Scheme was a piece of beneficial subordinate legislation.

The Court said that Clause 8 relates to time limit for considering the applications. Thus, it provides for limitation in which a claim covered by the Scheme is to be made. It is five years from the date of death, but in exceptional circumstances, a claim beyond period of five years could also be considered after thorough scrutiny and only at the level of Board. The question of reckoning the limitation would arise only when the case of any of the applicant is covered under the substantive part of the Scheme. Had there been any intention to make the Scheme applicable even to cases where death had taken place in preceding five years it could have been stated expressly as in SBI v. Raj Kumar, (2010) 11 SCC 661 and MGB Gramin Bank v. Chakrawarti Singh, (2014) 13 SCC 583

The Court noted that this Scheme was also considered in Bechan Giri v. Union of India, 2023 SCC OnLine All 441 , wherein it was held that Clause 8.1 and 8.2 of the Scheme, do not envisage cognizance of cases of dependants, where death of an employee in harness has taken place before the Scheme was enforced in the Bank. The employment of the expression in Clause 8.1 “normally be considered up to five years from the date of death” refers to the period of five years of death, on a date when the Scheme was already in force in the Bank; not five years or a little short of that time antedating the introduction of the Scheme. Further, it said that the decision in Bechan Giri (supra) was not cited before the Division Bench in Jitendra (supra).

Thus, with due deference, the Court disagreed with the view taken in Jitendra (supra). As the said judgment is by Co-ordinate Bench of equal strength, and judicial propriety demands that the question be settled by a Larger Bench. Accordingly, it referred the following question for being answered by a Larger Bench

“Whether the interpretation given to Clause 8 of the Scheme dated 10-5-2019 in Jitendra (supra), is sustainable in law, in view of judgment in Bheemesh (supra), and other judgments?”

Advocates who appeared in this case :

Counsel for Appellant: Advocate Sachin Mishra, Advocate Ajal Krishna, Advocate Krishna Mohan Asthana

Counsel for Respondent: Advocate Ajay Kumar Mishra, Advocate Alok Tiwari, Advocate Sunil Sharma

1. Special Appeal No. 270 of 2023

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