TMI Blog2009 (10) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant claiming compassionate appointment and seeking quashment of an order-dated 31.5.2004 passed by the Appellant-bank, rejecting his claim. It was the case of the Respondent that his father, Late Lochan Singh Deharia, while working as a clerk, died in harness on 1.11.1996. On 28.11.1996, he submitted an application seeking compassionate appointment to the Appellant. The Branch Manager of the bank concerned forwarded the said application to the Regional Office on 19.2.1997. When the application was submitted on 28.11.1996, the Scheme for compassionate appointment in the Bank was in accord with the Circular/Policy dated 25.1.1989. However, with effect from 27.2.1997 a New Policy came into existence and by the time the Respondent's application, forwarded on 19.2.1997 by the Branch Manager reached the Regional Office, the New Policy dated 27.2.1997 had come into force. Accordingly, the Appellant Bank considered the claim of the Respondent for appointment on compassionate grounds in accordance with the New Policy and finding him ineligible, rejected his claim by the order impugned in the writ petition dated 31.5.2004. It was the case of the Respondent before the writ Court th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be evolved to meet certain exceptional contingencies. One such exception is to grant appointment to dependants of a deceased employee by accommodating the said person in a suitable vacancy. It is held by the Supreme Court that the object of granting such an appointment is to give succour to the family, which has been suddenly plunged into penury due to untimely death of the sole breadwinner. It has been held and cautioned by the Supreme Court in the aforesaid case that the object of providing such an ameliorating relief should not be taken as opening an alternative mode of recruitment to public service. After taking note of the principle laid down in the case of Hakim Singh (supra), Supreme Court in the case of Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998) 5 SCC 192, has laid down the following dictum: 8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. (Emphasis supplied) The concept of granting compassionate appointment and the purpose of granting the same has been the subject matter of adjudication in various cases and therefore, it would be relevant at this stage to refer to some of the decisions in the field. In Commissioner of Public Instructions and Ors. v. K.R. Vishwanath (2005) 7 SCC 206, after following the earlier principles laid down in the cases of State of Haryana and Ors. v. Rani Devi and Anr. (1996) 5 SCC 308; Life Insurance Company of India v. Asha Ramchandra Ambekar (Mrs) and Anr. (1994) 2 SCC 718; and Umesh Kumar Nagpal v. State of Haryana and Ors. (1994) 4 SCC 138, the principle and the object with regard to compassionate appointment is laid down by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions taking into consideration the financial condition of the family of the deceased. (Emphasis supplied) In State of J and K and Ors. v. Sajad Ahmed Mir, (2006) 5 SCC 766, after taking note of the judgments rendered earlier in the cases of Rani Devi (supra), Asha Ramchandra Ambekar (supra) and Umesh Kumar Nagpal (supra), it has been so held by the Supreme Court: 11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought 'compassion', the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compassion. (Emphasis supplied) In National Institute of Technology v. Niraj Kumar Singh this Court has stated the law in the following terms: (SCC p. 487, para 16) 16. All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder. In State of Rajas than v. Umrao Singh Appellant has categorically stated that once the right is consummated, any further or second consideration for higher post on the ground of compassion would not arise. Again in State of Haryana v. Ankur Gupta Appellant held: (SCC p.707, para 6) 6. As was observed in State of Haryana v. Rani Devi it need not be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. This general rule can be departed from only when compelling circumstances demand and one such circumstance is the death of the sole breadwinner of a family. However, it is held by the Supreme Court that appointment on compassionate ground is governed by Rules and Regulations or Scheme and taking into consideration instructions framed in this regard and the same should confirm to the requirement of Articles 14 and 16 of the Constitution. That apart, the principles clearly indicates that grant of compassionate appointment is not a right, vested in nature, available to a person. It is a benefit granted dehors the normal mode of recruitment and, therefore, it is to be granted strictly in accordance to the Scheme or Policy formulated in this regard. Having determined the nature and object of such an appointment, it would be now appropriate to consider the contentions advanced by the learned Counsel for the parties in the backdrop of the aforesaid principles and objects underlying grant of compassionate appointment. Shri Ashish Shroti, learned Counsel for the Appellant-bank, argued that when grant of compassionate appointment is not a vested right available to an ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of such Policy or Scheme is entitled for consideration on the basis of the Policy or Scheme as is in existence at the time of consideration. It is further submission that as compassionate appointment does not confer any vested right, it is akin to grant of a license or a lease as per a Policy and in that view of the matter, such grant can be made only on the basis of the Policy prevailing on the date when the grant is to be made and not on the basis of a Policy which has been changed. Refuting the aforesaid contentions and pointing out that grant of compassionate appointment is made to tide over the crisis that has fallen on a family due to death of the sole breadwinner and, therefore, the claim has to be evaluated on the basis of the Policies and Scheme existing at the time of submission of the claim, Shri R.K. Sanghi, learned Counsel, contended that an application for grant of compassionate appointment has to be considered in accordance with the Policy that is in existence when the application is submitted and cannot be considered on the basis of a Policy which may have changed, detrimental to the interest of the claimant after submission of his application. It was em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was formulated in 2005. The High Court also erred in deciding the matter in favour of the Respondent applying the scheme formulated on 4.8.2005, when her application was made in 2000. A dispute arising in 2000 cannot be decided on the basis of a scheme that came into place much after the dispute arose, in the present matter in 2005. Therefore, the claim of the Respondent that the income of the family of the deceased is Rs. 5855 only, which is less than 40% of the salary last drawn by late Shri Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water. After the case was closed for judgment on 7.5.2009, learned Counsel for the Respondent by filing I.A. No. 4742/09, has invited attention of Appellant to a judgment of the Orissa High Court, in the case of Smt. Sabi Bawa v. Grid Corporation of Orissa Limited and Ors. 1999 (3) SLR 81, to contend that in the said case the Scheme prevailing at the time of death was said to be the one on the basis of which consideration is to be made. On a close scrutiny of the said judgment rendered by the Orissa High Court, it would be seen that in the said case when the death of the employee concerned occurred in the year 1983, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carved out contrary to the constitutional mandate and no vested right accrues to any person to claim such an appointment. In State of Haryana v. Ankur Gupta (2003) 7 SCC 704, it has been held by the Supreme Court that it is necessary for the authorities to formulate regulations or schemes in such a manner that they withstand the test of Articles 14 and 16, because appointment on compassionate grounds cannot be claimed as a matter of right, but it has to be evolved in such a manner that the Scheme is formulated taking into consideration the financial conditions of the family of the deceased and the means of livelihood available to them. In National Institute of Technology v. Niraj Kumar Singh 2007 (1) SCC 668, it has been held by the Supreme Court that all public appointments should be in consonance with Article 16 of the Constitution of India. Thus understood, compassionate appointment is neither a vested right, which can be exercised at any time even after the crisis created by the death of the earning member is over, nor is it a hereditary right, it cannot be bequeathed. These principles are laid down in the cases of Haryana State Electricity Board v. Naresh Tanwar (1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2007], Madras High Court considering the decisions in the case of P.T.R. Exports (supra) and M/s Hind Stone (supra) has held that right to compassionate appointment is neither a fundamental right nor a legal right. It is only an exception to the general rule and that being so, the same has to be decided as per the Scheme which comes into operation and which is prevalent at the time of consideration and not on the basis of an earlier Scheme, which has been changed. It is submitted by Shri Sanghi that the controversy has been put to rest by the Supreme Court in the case of Jaspal Kaur (supra). On a close scrutiny of the aforesaid judgment, it would be seen that the case has been decided on the facts of that case and the observations made and the directions issued in paragraph 26 does not lay down the law as canvassed by Shri R.K. Sanghi. In the said case, after the employee had died namely one Shri Sukhbir Inder Singh, his widow applied for compassionate appointment on 5.2.2000, in accordance to the policy that was in vogue in the year 2000. On 7.1.2002, the competent authority of the Bank rejected the application after considering it in accordance to the Scheme and after evalua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be construed to be a legal principle laid down by the Supreme Court to be applicable in all cases. It is the considered view of Appellant that the observations made in paragraph 26, relied upon by Shri R.K. Sanghi, is based on the factual situation that was existing in the case before the Supreme Court i.e. the decision of the Bank dated 7.1.2002 after evaluating the claim as per the policy of 2000 and further direction of the High Court to reconsider the matter much before the Scheme of 2005 came into existence. Accordingly, the said judgment also does not help the Appellant. In this context, we fruitfully state that a decision has to be treated as precedent for what it decides. The Supreme Court in the case of Ambica Quarry Works v. State of Gujarat AIR 1987 SC 1073, has held thus: 18. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it. In the matter of Bhavnagar University v. Palitana Sugar Mill (P) Limited, (2003) 2 SCC 579, it is so observed by the Supreme Court as under: 59 It is also we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classic's: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. * * * * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it. (Emphasis supplied) The matter was again c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not amount to a precedent. In State of Punjab v. Baldev Singh (1999) 6 SCC 172, a Constitution Bench of Appellant observed (vide SCC para 43) that a decision is an authority for what it decides (i.e.. the principle of law it lays down) and not that everything said therein constitutes a precedent. In Karnataka SRTC v. Mahadeva Shetty (2003)7 SCC 197,(vide SCC para 23) Appellant observed that the only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided. As observed by Appellant in State of Orissa v. Sudhansu Sekhar Misra AIR 1968 SC 467, (vide AIR para 13): (AIR pp. 651-52, para 13) 13. ...A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observations found therein nor what logically follows from the various observations made in it.... In this context, we may take note of another principle. A judgment is not to be read as a statute. It has been so held in Union of India and Ors. v. Dhanwanti Devi and Ors. 1996 AIR SCW 4020: Therefore, in order to understand and appreciate the binding force of a decision it is always n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monetary compensation being provided which was found to be contrary to the tripartite agreement, interference was made in the matter. That being so, the inspiration sought to be drawn by learned Counsel is not available, as the decision is absolutely distinguishable having a different foundation altogether. It is, therefore, clear that compassionate appointment is not a vested right nor is it a hereditary right. Its grant is based on the Policies and Scheme which are framed by carving out an exception to the General Rule governing public appointment. Once it is held that it is an exception to the General Rule and is granted in accordance with the Scheme or Rules formulated, then considerations to be made for grant of the appointment would be governed by the provision of the Rules or the Scheme and in that view of the matter when the Rules and the Guidelines play a dominant role, considerations have to be made in accordance with the Rules and Scheme which are applicable at the time of grant. As the entitlement for compassionate appointment is to be evaluated in accordance with the Schemes and Rules formulated in that regard, there cannot be any shadow of doubt that consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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