TMI Blog2018 (7) TMI 1885X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the application of the petitioner on the basis that the family pension received by the petitioner is exceeding the salary of the Group D staff post at the relevant point of time. This fact remains undisputed and the petitioner has not challenged the validity of the Rules, 2009 either. It logically follows that the petitioner is bound by these Rules, 2009 and has to be eligible for appointment in consonance with the Rules, 2009. The petitioner cannot claim appointment on compassionate grounds if he is ineligible to receive such appointment by the Rules, 2009 - In order to compute family income, the D.I. of Schools considered the provisions contained in Schedule V and, more importantly, the explanation that categorically defines the expression 'financial hardship' (provided above). The impugned order passed by the D. I. of Schools is in accordance with the definition of 'financial hardship'. There are no reason to interfere with the order passed by the D.I. of Schools, which is in accordance with Schedule V of the Rules, 2009 - application dismissed. - W.P.No. 6389 (W) of 2017 - - - Dated:- 11-7-2018 - Shekhar B. Saraf, J. For the Petitioner: Mr. Dilip Saha And Mr. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 (hereinafter referred to as the Rules, 2009 ). 5. The Counsel for the petitioner, Mr. Dilip Saha has relied upon two judgments of the Supreme Court in support of his arguments. He has relied on Govind Prakash Verma -v- Life Insurance Corporation of India and Ors. reported in (2005) 10 SCC 289 and Balbir Kaur and Anr. -v- Steel Authority of India Ltd. and Ors. reported in (2000) 6 SCC 493. 6. In the case of Govind Prakash Verma -v- Life Insurance Corporation of India and Ors. (supra) [Coram: Brijesh Kumar and Arun Kumar, JJ.] it was held that the scheme of compassionate appointment of respondent is over and above whatever is admissible to legal representatives of the deceased employee as benefits of service which they get on the death of the employee. The relevant part of the judgment is provided below: 6. In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the form of compassionate appointment though not a replacement of the bread earner, it would undoubtedly bring some solace to the situation. Accordingly, the Supreme Court held that in spite of the Family Benefit Scheme, compassionate appointment could not be refused. The relevant paragraph is given below: 13.........But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump-sum amount being made available to the family -- this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation. 8. The Counsel for the Petitioner has also relied on an unreported judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent writ petition. 10. I have considered the arguments placed by the Counsels appearing on behalf of the parties and also perused the materials on record. 11. In order to fully comprehend the issue at hand, the provisions of the Rules, 2009 should be considered. Rules 20 and 21 of the Rules, 2009 lays down the framework within which compassionate appointment may be given to family members of teachers. Schedule V appended to the Rules, 2009 lays down the conditions which need to be satisfied for grant of appointment on compassionate grounds. The relevant portion of Schedule V of the Rules, 2009 is provided below: 1. When a Teacher or non-teaching staff dies in harness before the date of his superannuation, i.e., the age of 60 years, leaving a family which is, in the opinion of the District Inspector of Schools (Secondary Education), in such extreme financial hardship that it fails to provide two square meals and other essentials to the surviving members of the deceased teacher's family, the - (i) Spouse; (ii) Son; (iii) Daughter of the deceased Teacher or non-teaching staffs family who is possessing required educational qualifications as laid down in Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Appointment on compassionate grounds cannot be claimed as a matter of right. 10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate grounds is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, the applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate grounds have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. 11. This Court in Govind Prakash Verma v. LIC [(2005) 10 SCC 289: 2005 SCC (L S) 590], while dealing with a similar issue i.e. whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment. This Court held that merely death of an employee does not entitle his family to compassionate employment and that the authority concerned must consider as to whether the family of the deceased employee is unable to meet the financial crisis resulting from the employee's death. This Court also held as under: (SCC p. 140, para 2) The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and selecting authorities. The Bank had considered the application of the respondent in terms of the statutory scheme framed by the Bank for such appointment. After that even though the Bank found the respondent ineligible for appointment to its service, the High Court has found him eligible and has ordered his appointment. This is against the law laid down by this Court. It is settled law that the principles regarding compassionate appointment that compassionate appointment being an exception to the general rule the appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family. The respondent is not entitled to claim relief under the new Scheme because the financial status of the family is much above the criterion fixed in the new Scheme. 14. Furthermore, a Co-ordinate Bench of this Court in W.P. 9384 (W) of 2014 (Smt. Sunita Saha (Poddar) -v- State of West Bengal and Ors.) [Coram: Dipankar Datta, J.] had thoroughly examined the legal position on the Rules, 2009 applicable for appointment on compassionate grounds. It is imperative that this judgement be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. That compassionate appointment cannot be claimed as a matter of right and should be offered only in accordance with the rules/regulations/scheme in place, and that financial condition of the family of the deceased is a relevant consideration for offering compassionate appointment has been reiterated by the Supreme Court in recent decisions reported in (2007) 9 SCC 571 (SBI v. Jaspal Kaur), (2012) 11 SCC 307 (Union of India v. Shashank Goswami) and (2012) 9 SCC 545 (State of Gujarat v. Arvindkumar T. Tiwari). In the decision in Balbir Kaur (supra), the earlier decision in Umesh Kumar Nagpal (supra) was not noticed and, therefore, the efficacy of the former decision as a binding precedent stands eroded. Since the learned Judge while deciding Tapan Kumar Barman (supra) also did not notice the decision in Umesh Kumar Nagpal (supra) and His Lordship's view seems to be inconsistent with the views expressed in Jaspal Kaur (supra), Shashank Goswami (supra), and Arvindkumar T. Tiwari (supra), I am not persuaded to concur therewith. It is axiomatic that compassionate ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam. 17. In the case of Mamleshwar Prasad -v- Kanhaiya Lal reported in (1975) 2 SCC 232 [Coram: A.N. Ray, CJ and K.K. Mathew and V.R. Krishna Iyer, JJ.], Justice Krishna Iyer eloquently stated that in the event, a judgement has failed to notice a plain statutory provision or an obligatory authority which is in contravention of the reasoning and result reached, it may not act as a binding precedent. The relevant portion is mentioned hereunder: 7. Certainty of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is placed before a High Court, the latter is bound to follow the subsequent one by the smaller one which interprets the decisions of the larger Bench because that is the interpretation of the larger Bench by a Bench of Supreme Court and the High Court cannot make a different interpretation than the one made by the subsequent decision of the Supreme Court which is binding upon it. The position, however, would be different if the subsequent smaller Bench of the Supreme Court in ignorance of the earlier larger Bench takes a contrary view from the one taken by the earlier larger Bench. In that situation, the High Court is entitled to reject the view of the latter smaller Bench of the Supreme Court as per incuriam. 19. At this point I also refer to the House of Lords' decision in Noble -v- Southern Railway Co., (1940) 2 All ER 383, where the question arose whether a Court of Appeal would be bound to follow its own earlier decisions notwithstanding the fact that the decision was inconsistent with a decision of the House of Lords. In that case, the Court of Appeal followed its earlier decision notwithstanding the fact it was contrary to a decision of the House of Lords. Lord Wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of a House of Lords decision, in which case it must follow that decision. 21. It is to be noted that one of the judgments relied on by the Division Bench in Purnima Giri (supra) namely Balbir Kaur (supra) was distinguished by the Apex Court in M. T. Latheesh (supra) with the observation that the principles enunciated therein are general observations made by the Apex Court in the context of compassionate appointment and thereafter Balbir Kaur (supra) was distinguished on the ground that in the case before the Court the same was covered by a Scheme framed by the authority with regard to compassionate appointment. The Apex Court went on to hold that the respondent is not entitled to claim relief under the new Scheme because the financial status of the family is considerably above the criterion that has been fixed in the new Scheme. Following the ratio laid down in Oberoi Hotels (supra), that the decision of the latter judgment that had dealt with an earlier judgment of the Supreme Court has to be followed by the High Court, it is clear that the Division Bench of the High Court was bound by the judgment in M. T. Latheesh (supra). The fact that M. T. Latheesh (supra) was not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2007) 6 SCC 162; National Institute of Technology -v- Niraj Kumar Singh reported in (2007) 2 SCC 481; Union Bank of India and Ors. -v- M.T. Latheesh (supra); this Court held that the appointment on compassionate grounds is to be done in accordance with the rules framed by the employer and there is no right to claim compassionate appointment on any other ground. Furthermore, the Court had held that this appointment is given only for meeting the immediate hardship faced by the family due to the death of the bread earner and the financial condition of the family is a guiding factor for such appointment. The relevant paragraph enunciating the ratio decidendi of the judgement is delineated below: 10. After going through the judgments passed by the Supreme Court on the issue of compassionate appointment, the following principles emerge:- (a) Appointment on compassionate grounds is an exception craved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. (b) The right of a dependent of an employee who died in harness for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le V and, more importantly, the explanation that categorically defines the expression 'financial hardship' (provided above). The impugned order passed by the D. I. of Schools is in accordance with the definition of 'financial hardship'. 28. Furthermore, it is relevant to point out that the petitioner has approached this Court in 2017, which is more than six years after the D.I. of Schools had rejected the application. The petitioner has filed a supplementary affidavit claiming he had not received any information that the D.I. of Schools had rejected his application. He had made an application to the Secretary of the school in the year of 2016, which is still five years after the date of rejection. The petitioner had maintained silence for over five years for an appointment on compassionate grounds and has failed to give a reasonable explanation for his inaction from the year 2011 till 2016. In view of the same, it is obvious that the writ petition filed in 2017 is belated in nature and is liable to be dismissed on the sole ground of having been filed at a belated stage, especially since this matter relates to appointment on compassionate grounds. The scheme of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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