U. Valsala v. Canara Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 1ST DAY OF JUNE 2017/11TH JYAISHTA, 1939** ## **WP(C).No. 20200 of 2009 (T)** **----------------------------** **PETITIONER : ----------------------** **U.VALSALA, W/O. LATE C.V. SUKUMARAN, 'PRARTHANA', CHUNANGAD P.O., OTTAPALAM (VIA), PIN 679 511, PALAKKAD DT.** **BY ADV. SRI.K.K.SATHEESH** **RESPONDENT : -----------------------** **CANARA BANK REPRESENTED BY THE DEPUTY GENERAL MANAGER, PERSONNEL MANAGEMENT SECTION, PERSONNEL WING, HEAD OFFICE, 112/J.C. ROAD, BANGALORE -560 002.** **BY SRI.E.K.NANDAKUMAR SRI.P.GOPINATH MENON, SC, CANARA BANK SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 20200 of 2009 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE APPLICATION DATED 21/7/1997 SUBMITTED BY THE PETITIONER.** - **P2 COPY OF THE LETTER ISSUED BY THE RESPONDENT BANK DATED 30/6/1999** - **P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 26/2/2003** - **P4 COPY OF THE LETTER ISSUED BY THE RESPONDENT BANK DATED 28/2/2003** - **P5 COPY OF THE SCHEME OF EMPLOYMENT ON COMPASSIONATE GROUNDS UNDER THE DYING IN HARNESS SCHEME DATED 8/5/1993** - **P6 COPY OF THE INTERIM ORDER DATED 4/11/2015 PASSED BY THIS HON'BLE COURT IN IA.NO.15911/2015 FILED IN THE PRESENT WRIT PETITION** - **P7 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE RESPONDENT DATED 31/12/2015.** - **P8 COPY OF THE SALE DEED NO.3842/2004 DATED 29/9/2004 OF THE SRO, OTTAPALAM** - **P9 COPY OF THE SALE DEED NO.5092/2004 DATED 21/12/2004 OF THE SRO, OTTAPALAM** - **P10 COPY OF THE SALE DEED NO.222/1/2010 DATED 14/1/2010 OF SRO, OTTAPALAM** - **P11 COPY OF THE LETTER DATED 18/1/2016 PASSED BY THE RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **/TRUE COPY/** ## **P.S.TO JUDGE** **sts** **A.MUHAMED MUSTAQUE, J.** ========================= ## **W.P.(C).No.20200/2009** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1[st] day of June, 2017 ## **J U D G M E N T** The petitioner's husband, late C.V.Sukumaran, and was an employee of the respondent-Canara Bank. Shri C.V.Sukumaran died-in-harness on 2.6.1997. This writ petition relates to compassionate appointment claimed by the petitioner based on a scheme floated by the bank. The petitioner's husband was an ex-serviceman before joining the service of the bank. The petitioner submitted an application under the scheme for appointment of her daughter, Swapna, immediately after the death of the employee. The said application was rejected on the ground that there are no indigent circumstances warranting employment on compassionate grounds. The above order was challenged in O.P.No.9716/2003. It appears that pending the original petition, the bank floated another scheme to give monetary compensation in lieu of compassionate appointment. Thereafter, this court by judgment in O.P.No.9716/2003 and connected case dated 8.3.2006 directed the bank to consider the case of the petitioner for ex-gratia payment ``` WPC 20200/2009 ``` ## **-:2:-** in accordance with law in lieu of compassionate appointment. In the meanwhile, the petitioner's daughter, Swapna got married on 28/5/2006. The bank rejected the claim for lumpsum ex-gratia payment as the income of the petitioner would exceed 60% of the last drawn salary by the deceased employee. Therefore, finding that the claim of the petitioner does not conform to eligibility norms, the bank rejected the same. Thereafter, another writ petition was filed as W.P.(C).No.25249/2006 seeking a direction to the bank to pay ex-gratia amount in lieu of employment on compassionate grounds. That writ petition was withdrawn with liberty. It is now submitted that the petitioner's claim is restricted to compassionate appointment as that is the only scheme that existed at the time of death of the employee. Therefore, the only question to be considered is whether the petitioner is entitled for compassionate appointment. 2. By the interim order of this Court, in the present writ petition on I.A.No.15911/2015, dated 4.11.2015, the bank considered the application filed by the petitioner and rejected the same by a detailed order. ``` WPC 20200/2009 ``` ## **-:3:-** Ext.P11 is the said order. The petitioner amended the writ petition incorporating a challenge in relation to Ext.P11. 3. The short question now arises for consideration is whether the petitioner's daughter is entitled for compassionate appointment under the scheme or not. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent-bank. 5. The petitioner relied upon the judgment of the Hon'ble Supreme Court in **Canara Bank and Another v. M.Mahesh Kumar [2015 SAR (Civil) 829]** and the judgment of the learned Single Judge of this court in **Ajithkumar v. Canara Bank [2016 (2) KLT 914]** and argued that, merely because the petitioner is a recipient of family pension and defence pension that cannot be a reason to deny compassionate appointment. It is further argued that the sale of property after the demise of the petitioner's husband itself would establish that the petitioner is living in penurious circumstances and not in a position to meet her financial needs. ## **`WPC 20200/2009`** ## **-:4:-** 6. Per contra, the learned Standing Counsel for the respondent-bank, relying upon the judgment in **Umesh Kumar Nagpal vs.** **State of Haryana and Others [(1994) 4 SCC 138],** submitted that the petitioner's claim can be considered only for compassionate appointment and the bank rejected the claim based on sound reasoning. It is further submitted that in the light of the judgment in **Umesh Kumar Nagpal's** case, the petitioner is not entitled for compassionate appointment taking note of the factors relied upon by the bank in Ext.P11. 7. The point that arises for consideration in this writ petition is related to the reasons referred to in Ext.P11 for rejecting the claim under compassionate appointment. It is to be noted that this court while analysing the facts in judicial review, have to remind themselves as to the scope of analysis. The purpose of analysis of the factors is only in relation to an objective manner to find out whether the bank had come to a conclusion in a proper manner or not, in accordance with the norms for compassionate appointment. It is settled principles of law that compassionate appointment is not a mode of recruitment but essentially a relaxation of regular mode of ``` WPC 20200/2009 ``` ## **-:5:-** appointment that comes to the rescue of a distress family on account of untimely death of the breadwinner of the family. **Umesh Kumar Nagpal's** case _(supra_ ) _,_ succinctly laid down the principles on which such claim can be considered by the bank. In paragraph 2 of the above judgment it is laid down as follows: **“2.** The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into ``` WPC 20200/2009 ``` ## **-:6:-** consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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 destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a ``` WPC 20200/2009 ``` ## **-:7:-** rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. 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 to 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 the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.” The bank in the present case rejected the claim of the petitioner as per Ext.P11 relying upon para.2 of **Umesh Kumar Nagpal's** case. (see sub-clause 3 of Ext.P11). According to the bank, the financial condition of the family of the deceased is sound and they do not require support by way of compassionate appointment. 8. It has come out that the son of the petitioner is employed. It appears that he was initially employed in Gulf country. The daughter of the petitioner is also married though it cannot be a reason for denial of compassionate appointment but, certainly, it is a factor to be reckoned along ``` WPC 20200/2009 ``` ## **-:8:-** with other factors while analysing the claim for compassionate appointment. The petitioner is a recipient of pension from defence as her husband was an ex-serviceman. The deceased had constructed house which was sold for Rs.10 lakhs in the year 2004. Thereafter, the petitioner, after availing a loan of Rs.2,50,000/- is constructing another house. It was found out that all source of income of the petitioner exceeds 60% of the last drawn gross salary of the deceased. It was also found out that two properties were sold subsequent to the death of the petitioner's husband. All that would show that the petitioner received more than Rs.17 lakhs from the sale of the properties. The petitioner's case is that all the amount received was expended for the marriage of their daughter and to clear off other liabilities. Nothing has been placed before this court to show that the amount was used to discharged any liabilities created by her late husband or any liability prior to the death of her husband. If one has sufficient source high enough to maintain a normal standard of living, certainly, that is a relevant factor while considering the claim for compassionate appointment. The compassionate appointment cannot be treated as a luxury to augment income from another ``` WPC 20200/2009 ``` ## **-:9:-** source. It is a benefit given to the family of the deceased to tide over the financial distress of the dependants of the deceased. In the light of the above and going through Ext.P11, all that would indicate that the bank considered the petitioner's claim for compassionate appointment objectively and rejected the same based on sound reasons. In such circumstances, this is beyond judicial review to sit upon as an appellate court to upset the findings on facts. The co-relation of objectivity, the scheme and fact-finding is sufficient for the satisfaction of this court to refuse exercise of power of judicial review. If that be so, resultantly, the writ petition has to be dismissed. Accordingly, it is dismissed. No costs. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ms