High Court of KeralaSingle Judge2015-04-10Disposed of with directions; verification of co...

Resmi S. Rajan and Sujatha Mandiram v. Indian Bank

Case / Petition Number:WP(C).No.19549 of 2005 (B)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M. Shaffique
Judgment Date: 2015-04-10
Court Decision / Holding: 1st respondent shall verify whether any appointment under compassionate grounds was made between 28 December 1998 and 1 April 2004. If such appointments exist, the petitioner’s claim shall be considered under the previous scheme and appropriate orders shall be passed within three months from the date of receipt of a copy of this judgment.
Final Disposition: Disposed of with directions; verification of compassionate appointments between 1998 and 2004; if found, consideration under the earlier scheme with a three-month deadline.

Parties to the Case

Appellants / Petitioners

Resmi S. Rajan
Sujatha Mandiram

Respondents

Indian Bank
The General Manager (PHR), Indian Bank
The Asst. General Manager (PL), Indian Bank

Legal Representation & Advocates

Counsels for Petitioners

• Dr. K.P. Satheesan
• Sri K.K. Gopinathan Nair
• Sri K.K. Rajeev
• Sri T.K. Kamaljith

Counsels for Respondents

• Sri S. Sreekumar

Case Synopsis & Summary

The petition challenges the bank’s denial of compassionate appointment under the dying-in-harness scheme for the petitioner(s) after the death of the father, a bank manager, in 1988. The petitioners submitted an application on 28 December 1998 under the dying-in-harness scheme. In 2001 they were informed that compassionate appointment would not be considered due to a restriction on fresh appointments. In 2004 the bank introduced a new scheme providing only cash compensation, not employment. The petition contends that since the application predates the 2004 scheme, the pre-2004 scheme should govern and the petitioner should be eligible for compassionate appointment, not cash compensation. The respondents argue that compassionate appointment is not a vested right and is governed by the policy in force at the time of the new scheme, with no vacancy or entitlement to appointment. The court relies on a Division Bench decision Canara Bank v. Mahesh Kumar to emphasize that compassionate appointment must be examined in light of the rules in force on the date of the application, and not the date of the subsequent scheme. Ultimately, the court directs verification of appointments made between 28 December 1998 and 1 April 2004 and, if such appointments exist, to consider the petitioner’s claim under the earlier scheme with a three-month deadline for orders."

Provisions of Law Cited

Dying-in-harness scheme (as applicable in 1998)Bank’s 2004 compassionate scheme providing cash compensation only

Legal Doctrines & Maxims

Compassionate appointment is not a vested right; it is a humanitarian consideration.
Doctrine that policy/govt/employer schemes govern entitlement unless a vested right is established.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the applicant’s claim for compassionate appointment under the dying-in-harness scheme, filed on 28 December 1998, should be governed by the pre-2004 scheme since it predates the new policy introduced in 2004. They rely on a Division Bench decision in Canara Bank v. Mahesh Kumar (W.A. 1313/2003) which held that the dying-in-harness scheme must be considered with reference to the rules in force at the time of death or application, not the later scheme. They argue that no valid explanation has been given for delaying consideration and that any appointment made between 1998 and 2004 under the earlier scheme must be considered in their favor. They point to Exts P2–P9 to show the history and insist that withholding relief on grounds of changed policy would be unfair given the pre-2004 eligibility.

Contentions of Respondents

The bank contends that compassionate appointment is not a vested right and is governed by policy; the 2004 scheme allows only cash compensation, with no provision for fresh appointments. It emphasizes that there must be a vacancy and that compassionate appointment is subject to humanitarian considerations rather than a guaranteed right. The respondents cite Supreme Court decisions (Himachal Road Transport Corp. v. Dinesh Kumar; Haryana State Electricity Board v. Krishna Devi) to argue that in the absence of vacancy or a right, appointments on compassionate grounds cannot be compelled. They maintain that the bank’s discretion under the policy should prevail and that the court should not direct creation of a vacancy or retrospective appointment outside the scheme.”},

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Canara Bank and another v. Mahesh Kumar	W.A.No.1313 of 2003	Positive	Division Bench held that compassionate appointment under the dying-in-harness scheme must be considered in light of the rules prevailing on the date of death/application, not the later scheme; the current judgment follows this approach.
Himachal Road Transport Corporation v. Dinesh Kumar & Another	1996(4) SCC 580	Mentioned Only	Supreme Court held that absent a vacancy, appointment would be a gross abuse of power; used as a general constraint on appointments.
Haryana State Electricity Board v. Krishna Devi	2002 10 SCC 246	Mentioned Only	Court holds compassionate appointment is a humanitarian consideration, not a right; cited to reinforce principle that entitlement is not automatic.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 10TH DAY OF APRIL 2015/20TH CHAITHRA, 1937** ## **WP(C).No. 19549 of 2005 (B)** **-------------------------------------------** **PETITIONER(S) :** **-------------------------** **RESMI S.RAJAN, SUJATHA MANDIRAM, MAMBALLIKUNNAM, CHATHANNOOR P.O, KOLLAM DISTRICT.** **BY ADVS.DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.K.K.RAJEEV SRI.T.K.KAMALJITH** ## **RESPONDENT(S) :** **----------------------------** **1. INDIAN BANK, REPRESENTED BY ITS GENERAL MANAGER(ADMN), CENTRAL OFFICE, 31 RAJAJISALAI, CHENNAI-600 001.** **2. THE GENERAL MANAGER(PHR), INDIAN BANK, PERSONNEL DEPARTMENT, HEAD OFFICE, 66 RAJAJISALAI, CHENNAI.** **3. THE ASST. GENERAL MANAGER(PL), INDIAN BANK, PERSONNEL DEPARTMENT, HEAD OFFICE, 66 RAJAJISALAI, CHENNAI.** **BY ADV. SRI.S.SREEKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-03-2015, THE COURT ON 10-04-2015 DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 19549 of 2005 (B)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1: TRUE COPY OF THE RELEVANT PAGE OF THE S.S.L.C. BOOK.** - **EXHIBIT P2: TRUE COPY APPLICATION SUBMITTED BY THE PETITIONER DATED 28.12.1998.** - **EXHIBIT P3: TRUE COPY OF THE DECLARATION FORM PRODUCED BEFORE THE FIRST RESPONDENT DATED 06.01.1999.** - **EXHIBIT P4: TRUE COPY OF THE LETTER NO.HO/PRNL/RECIT/COMP/69/98 DATED 15.12.2001 GIVEN BY THE ASST.GENERAL MANAGER (PL) TO THE PETITIONER'S MOTHER.** - **EXHIBIT P5: TRUE COPY OF THE SCHEME ADOPTED BY THE BANK WITH EFFECT FROM 01.04.2004.** - **EXHIBIT P6: TRUE COPY OF THE RELEVANT PAGE OF THE LETTER NO.HO:PRNL:COMPASS:2004 DATED 09.07.2004 GIVEN TO THE PETITIONER'S MOTHER.** - **EXHIBIT P7: TRUE COPY OF THE LETTER NO.69/1998 DATED 16.11.2004 GIVEN BY THE ASST.MANAGER TO THE PETITIONER'S MOTHER.** - **EXHIBIT P8: TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER'S MOTHER DATED 24.11.2004.** - **EXHIBIT P9: TRUE COPY OF THE LETTER GIVEN BY THE ASST. GENERAL MANAGER 14.03.2005 TO THE PETITIONER'S MOTHER.** **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.19549 of 2005 ---------------------------------------Dated this the 10[th] day of April 2015 ## **J U D G M E N T** ## This writ petition is filed seeking the following reliefs: _“i) to issue a writ of Mandamus or order or direction to the Respondents to give an appointment to the petitioner in the service of the bank on compassionate ground as provided under the scheme on 21-3-1998, the date on which her father expired,_ _ii) to declare that the petitioner is eligible to get an appointment in the service of the bank instead of money compensation as her Father expired on 21-3-1998 which is admittedly prior to the introduction of the new scheme on 1-4-2004;”_ 2. The facts involved in the writ petition would disclose that the petitioner claimed employment under the scheme of dying-in-harness. Petitioner's father Sri.R.Rajan died on 21/03/1988 while working as Bank Manager in the respondent Bank at Kaithakkode branch. She submitted an W.P.C.No.19549/2005 2 application dated 28/12/1998 by way of Ext.P2 with all related documents for an employment under the dying-inharness scheme. Petitioner was informed by letter dated 15/12/2001 that the request for compassionate appointment is not taken up for consideration on the restriction to appoint fresh recruits. Ext.P4 is the said letter. In 2004, a new scheme was introduced by the bank wherein it is provided that the dependents would be given only cash compensation. Petitioner had taken up the matter before the bank by indicating that the petitioner's application was long prior to the new scheme coming into force and therefore the petitioner's case has to be considered in the light of the previous scheme. Hence the petitioner has sought for the reliefs aforesaid. 3. Counter affidavit has been filed by the 1[st] respondent inter alia contending that as per 2004 scheme, there is no provision to provide employment whereas only compensation was paid. That apart, appointment on W.P.C.No.19549/2005 3 compassionate grounds, not being a vested right, petitioner cannot claim such a benefit. In so far as the family of the deceased had already survived for last several years, the petitioner cannot claim appointment on compassionate basis. 4. Heard learned counsel for the petitioner and the learned counsel for the respondent. 5. The learned counsel for the petitioner relied upon the Division Bench judgment of this Court in W.A.No.1313 of 2003 in **Canara Bank and another v. Mahesh Kumar** wherein the Division Bench, after considering a similar issue, observed that the scheme of dying-in-harness has to be considered in the light of the scheme prevailing as on the date of death of the deceased and not on the date when a new scheme has been formulated by the bank. 6. Learned counsel for the respondent, however, relied upon the judgment of the Supreme Court in **Himachal Road Transport Corporation v. Dinesh Kumar &** W.P.C.No.19549/2005 4 **Another** _[1996(4) SCC 580]_ wherein the Supreme Court held that, in the absence of a vacancy it is not open to the Corporation to appoint a person to any post which will be a gross abuse of the powers of the public authority. Another judgment relied upon is **Haryana State Electricity Board v. Krishna Devi** _[2002 10 SCC 246]_ wherein the Supreme Court held that employment on compassionate ground is given only on pure humanitarian consideration and no appointment can be made as a matter of right. The main object was to provide immediate financial help to the family of the deceased employee. 7. Having regard to these rival contentions, the short question to be considered is whether at this point, a direction can be issued to the bank to appoint the petitioner on compassionate grounds. 8. In view of the judgment of the Division Bench in W.A.No.1313/2003, it cannot be disputed that the compassionate appointment has to be made taking into W.P.C.No.19549/2005 5 consideration the rules prevailing as on the date of application. During 1998, a scheme was in force and it is for the respondent authority to have given a valid explanation as to why the scheme was not made applicable till the new scheme had been formulated in 2004. Therefore, in between 1998 and 2004, if the bank had appointed any person on compassionate grounds, overruling the seniority of the petitioner based on the date of application, petitioner is also entitled to get the said benefit. It might be true that, for a certain period, no fresh appointments were being made by the bank. The question is whether any appointments were being made during the period i.e. from the date of application till the new scheme has been formulated. No such particulars are available from the averments made in the counter affidavit. Under such circumstances, I am of the view that the writ petition can be disposed of as follows: i) 1[st] respondent shall verify whether any W.P.C.No.19549/2005 6 appointment under compassionate ground had been made between 28[th] December 1998 and 1[st] April 2004. ii) If any such appointments have been made, petitioner's claim shall be considered based on the previous scheme and appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.19549/2005 7 W.P.C.No.19549/2005 8