w w w . L a w y e r S e r v i c e s . i n



State Bank of India & Others v/s Kunal Gupta


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- KUNAL (INDIA) PRIVATE LIMITED [Strike Off] CIN = U17120DL1998PTC095663

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

    Writ Appeal No. 187 of 2019

    Decided On, 20 March 2020

    At, High Court of Gauhati

    By, THE HONOURABLE CHIEF JUSTICE MR. AJAI LAMBA & THE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

    For the Appearing Parties: S.S. Sharma, L. Sharma, B.J. Mukherjee, L.R. Mazumder, Advocates.



Judgment Text

Soumitra Saikia, J.1. Mr. S.S. Sharma, learned senior counsel represents the appellants, State Bank of India and Mr. L.R. Mazumder, learned counsel represents the respondent.2. This appeal is preferred by the State Bank of India being aggrieved by the impugned order, dated 11-12-2018, passed in WP(C) No. 3683/2016. The appellant is aggrieved by the direction of the learned Single Judge to the appellant Bank to grant the benefit of Ex-gratia payment subject to fulfillment of the conditions mentioned in paragraph 14 of the Scheme for Compassionate Appointment, which is applicable to employees, who die-in-harness on or after 04-08-2005.3. The respondent is the brother of late Naba Kumar Gupta, who during his service as a Cashier-cum-Clerk in Arunachal Branch of State Bank of India at the age of 28 years committed suicide, on 04-01-2003. The deceased employee left behind his mother Smt. Smriti Gupta and the petitioner, who is the younger brother of the deceased.4. Soon after the death of his brother, the respondent applied to the appellant/Bank seeking employment on compassionate ground under the die-in-harness scheme. The respondent claimed to be a dependent of the deceased employee under the "die-in-harness" scheme. The appellant/Bank withdrew the earlier Scheme for Compassionate Appointment and in lieu thereof, a Scheme for payment of Ex-gratia lump sum was introduced with effect from 04-08-2005 and requested the respondent-petitioner vide Communication dated 27-03- 2007 to submit application in prescribed format accordingly.5. The petitioner was aggrieved by the aforesaid Communication in view of the fact that at the time of submission of his application dated 16-01-2003 seeking compassionate appointment during the subsistence of the earlier Scheme, the payment of Ex-gratia lump sum amount under the new Scheme was not applicable to him. He, therefore, approached this Court by filing WP(C) No. 2769/2007 with a prayer to issue a direction to appoint him to a suitable post in accordance with the Scheme for Compassionate Appointment. The appellant Bank contested the writ petition by filing their affidavit-in-opposition wherein they pointed out that the mother of the petitioner was receiving SBI family pension from Silchar Branch amounting to Rs.2611/- in January, 2003 and another pension @ Rs.5751/- per month from the Department of BSNL and that she has property worth Rs.10 Lakhs.6. The Hon'ble Court by order, dated 06-08-2013, passed in WP(C) No. 2769/2007, disposed of the writ petition. It was observed by the learned Single Judge that the relief claimed by the petitioner in the writ petition can no longer be granted. However, in view of the fact that the petitioner has the option to claim lump sum payment in lieu of compassionate appointment under the (new) Scheme. The learned Single Judge directed the petitioner to file fresh application as per the prescribed form to the respondent Bank for the admissible lump sum payment in lieu of compassionate appointment within a period of one month from the date of the order. The Bank was also directed to consider the application on merit and take a decision thereon in accordance with law, within a period of four weeks thereafter.7. No appeal was preferred against the order dated 06-08-2013. Rather, in deference to the order dated 06-08-2013 passed in WP(C) No. 2769/2007 the respondent preferred an application on 06-09-2013 to the appellant/Bank.8. The appellant/Bank, by communication dated 16-01-2014, informed the respondentpetitioner that theapplication for payment of Ex-gratia lump sum amount is being returned by the Controlling Office of the appellant Bank with a reason that payment of Ex-gratia lump sum amount is payable to the family members of the employee, who died on or after 04-08- 2005. It was informed that since the respondent's late brother expired on 04-01-2003 and as such, the applicant, namely, the respondent-petitioner is not eligible for any such payment. The respondent being aggrieved as the petitioner filed yet another writ petition being WP(C) No. 3683/2016 with the following prayer:" .. Respondent Authorities to provide Ex-Gratia Lump-sum payment to the petitioner on account of the death of the petitioner's brother in terms of the relevant Scheme which the Respondent Bank may be directed to produce and after hearing the parties, be further pleased to make the Rule absolute and/or pass such further or other Order(s) as Your Lordships may deem fit and proper."9. The appellant Bank contested the writ petition. In its affidavit-in-opposition, the appellant stated that the deceased employee, Late Naba Kr. Gupta, who was the brother of the present petitioner, was also appointed on compassionate ground on the premature retirement of their father Late Pranab Bhushan Gupta, by suppressing the fact that their mother was gainfully employed and that the family was not living in penury or financial distress. It was also stated that at the time of the death of the brother of the petitioner, the mother was drawing family pension from the SBI and also pension from BSNL, besides having landed property. The relevant paras are extracted below:"5. That I submit that to get a job in the Bank is not a heritable right and say that on the premature retirement of late Pranab Bhushan Gupta on medical grounds his son, late Naba Kumar Gupta, who was the brother of the petitioner was given appointment on compassionate ground, and subsequently it came to the notice of the Bank that he got the appointment by suppressing the fact that his mother was gainfully employed and hence his family was not living in penury or in financial distress since his mother Smt. Smriti Gupta being an employee of Central government was earning at the time of retirement of his father, the family had received adequate amount in the form of gratuity, provident fund and other terminal benefits and hence the financial condition was not so bad so as to justify appointment of Naba Kumar Gupta on compassionate grounds. Hence I state that he i.e. Naba Kumar Gupta got the appointment on compassionate ground by suppression of aforesaid facts viz, his mother being gainfully employed, have a valuable piece of landed property and the financial condition of the family was not penurious.6. That be that it may, now upon unfortunate death of late Naba Kumar Gupta (who committed suicide), the petitioner made a request for his appointment on compassionate ground in place of his brother, as if the job held by his father was a heritable one and was initially inherited by his elder brother and after the death of elder brother, the right to hold the job in SBI devolved upon him. I submit that at the time of death of Naba Kumar Gupta on 4th January, 2003 his mother was not only receiving SBI family pension of 2611/- per month but also was getting pension from the depart of BSNL (Central Government) @ Rs.5751/- per month making a total of Rs.8362/- (the total family monthly income as on the date of death), which presently are even more. Besides the pension, as indicated above the value of landed property held by the family have also appreciated and hence the family's financial condition is not in a bad shape so as to require compassionate appointment.* * *9. That I do not dispute the averments made in para 5, that at the time of death of Naba Kumar Gupta, upon whose death the compassionate appointment was sought, the petitioner was HSSLC pass and was having knowledge of typing but the statement made by him that at that time the monthly income of the family from all sources was Rs.2611/- (the family pension on the death of his father) was made falsely since his mother at that time was also getting pension from BSNL, besides which the family had already received sufficient funds by way of terminal benefits payable on the services of his father. I say that as such, the claim that the family on 16.01.2003 had monthly income of Rs.2611/- only from all sources is a white lie and factually incorrect."10. The learned Single Judge referred to paragraph 14 of the Scheme and held that it allows payment of Ex-gratia to those whose application for compassionate appointment was pending at the time of implementing of the Scheme. Accordingly, the writ petition was allowed directing the appellant Bank to grant the benefit of Ex-gratia payment subject to fulfillment of the conditions mentioned therein.11. We have heard the learned counsel for the parties and have noted the rival contentions. We have also perused the pleadings available on record.12. Before proceeding further in the matter, it will be apposite to refer to the relevant provisions of the Scheme for Compassionate Appointment. Under the erstwhile Scheme for Compassionate Appointment, which came into force on 01-01-1979 under paragraph 17.5(g) the definition of "Dependent" included the brother or a sister in case of unmarried employee. It was further provided at paragraph 7.13 of the said Scheme that determination of the financial condition of the family is an important criterion for deciding the proposals for compassionate appointment. The factors, which were enumerated under paragraph 7.13, should be taken into account for determining the financial condition of the family13. The said Scheme came to be replaced by an another Scheme namely, "The Scheme for Payment of Ex-Gratia Lumpsum Amount payment in lieu of Appointment on Compassionate Grounds in State Bank of India". The new Scheme has come into effect from 04-08-2005 is evident from the communication dated 04-08-2005. Under the said Scheme the definition of family provided at paragraph 4 (i) is as under:-"Family" / Dependents: dependents or the "family" mean and include spouse, wholly dependent children (son, including legally adopted son/unmarried daughter including legally adopted unmarried daughter). In the case of unmarried employee, parents who are wholly dependent on the employee will constitute "family."14. The Bank under the Scheme, before granting any benefits, is required to take into consideration the financial condition of the family as stipulated in paragraph 9. The same is extracted herein below:-"FINANCIAL CONDITION OF THE FAMILY:A) The following sources of income/liabilities of the family of the deceased/retired employees shall be taken into account for determining financial condition of the family:i) Pension including family pension, if anyii) Terminal benefits like gratuity, encashment of leave, employees and exployer contribution to provident fund etc.iii) Compensation/amount paid by the Bank or Bank's Mutual Fund.iv) Proceeds of LIC/any other company's life or other (with accident) insurance policies.v) Investments/deposits in SBI or other organizations like public sector banks/other banks/post offices/mutual funds etc. and income therefrom.vi) Income of dependents from rent, employment, profession or vocation or any other source.vii) Movable assets and immovable property (including agricultural land, groves etc.) and income therefrom.viii) Loans taken from the Bank, other dues payable to the Bank and/or other financial institutions with the prior approval of the Bank.ix) Any other income of the family.Note: Compensation paid under clause 9A (iii) above will not include the following compensations circulated vide our Circular no. CDO/PM/CIR/46 dated 17.07.2002:(a) The compensation paid to employees based on Government's guidelines in the event of death/disability/serious injury suffered by the employee while on duty as per scheme 1,(b) Compensation paid to employees who are killed/injured in dacoities/robberies/terrorist attack and rewards introduced under Government of India's guidelines as per Scheme II , and(c) Monetary compensation paid to Award employees such as watch & ward staff, drivers and electricians under Workmen Compensation Act, 1923."15. From a conjoint reading of both the provisions, it is seen that under the 2005 scheme, in case of an unmarried employee, parents who are wholly dependent on the employee will constitute "family". But unlike the 1979 Scheme, it does not include brother/sister in case of an unmarried employee. The financial condition required for a family to be included within the zone of consideration for benefits under the scheme has remained the same.16. The law relating to appointment under compassion Scheme has long been settled by the Hon'ble Supreme Court, in the case of Umesh Kumar Nagpal -Vs- State of Haryana and Ors., (1994) 4 SCC 138 . The Apex Court held as follows:"The whole object of granting compassionate employment is 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."17. This law laid down by the Apex Court has subsequently been followed in several other judgments. In the case of M/s Eastern Coalfields Ltd. -Vs- Anil Badyakar & Ors., (2009) 13 SCC 112 , The Hon'ble Supreme Court culled out the law relating to compassionate appointment and has held that compassionate appointment is not a vested right which can be exercised at any time in the future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over. The relevant paragraphs are extracted as under:-"7. So far as the question of nature and object of appointment on compassionate ground, it is relevant to take note of what is stated by this Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] : (SCC p. 141, para 6)"6. the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."8. In Jagdish Prasad v. State of Bihar, (1996) 1 SCC 301 : 1996 SCC (L&S) 303 : (1996) 32 ATC 238] it was observed that: (SCC p. 302, para 3)"3. The very object of appointment of a dependant of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family."9. In MMTC Ltd. v. Pramoda Dei, (1997) 11 SCC 390 : 1998 SCC (L&S) 167] it is observed by the Court: (SCC p. 393, para 4)"4. As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment."10. In S. Mohan v. Govt. of T. N., (1998) 9 SCC 485 : 1998 SCC (L&S) 1231] the Court stated that: (SCC p. 487, para 4)"4. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."11. This Court has observed in Director of Education (Secondary) v. Pushpendra Kumar, (1998) 5 SCC 192 : 1998 SCC (L&S) 1302] : (SCC pp. 199-200, para 8)"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 that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that 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."12. In Sanjay Kumar v. State of Bihar, (2000) 7 SCC 192 : 2000 SCC (L&S) 895] the Court has stated that: (SCC p. 194, para 3)"3. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood."13. In Punjab National Bank v. Ashwini Kumar Taneja, (2004) 7 SCC 265 : 2004 SCC (L&S) 938] it was observed by the Court that: (SCC p. 268, para 4) "4. It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis."14. Insofar as delay in approaching the authorities for such appointment is considered by this Court in Union of India v. Bhagwan Singh, (1995) 6 SCC 476 : 1996 SCC (L&S) 33 : (1995) 31 ATC 736] , it was held as follows: (SCC p. 480, para 8)"8. It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh died on 12-9-1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable."15. In Haryana SEB v. Naresh Tanwar, (1996) 8 SCC 23 : 1996 SCC (L&S) 816] it was stated that: (SCC p. 26, para 9)"9. It has been indicated in the decision of Umesh Kumar Nagpal, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad case, (1996) 1 SCC 301 : 1996 SCC (L&S) 303 : (1996) 32 ATC 238] , it has been also indicated that the very object of appointment of dependant of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years." (emphasis in original)16. In State of U.P. v. Paras Nath, (1998) 2 SCC 412 : 1998 SCC (L&S) 570] the Court has held that: (SCC p. 414, para 5)"5. The purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case."17. In Haryana SEB v. Krishna Devi, (2002) 10 SCC 246 : 2003 SCC (L&S) 248] the Court has observed that: (SCC p. 247, para 7)"7. As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family. The High Court did not consider the position of law and allowed the writ petition relying on an earlier decision of the High Court."18. In National Hydroelectric Power Corpn. v. Nanak Chand, (2004) 12 SCC 487 : 2005 SCC (L&S) 357] the Court has stated that: (SCC p. 490, para 5)"5. It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises."19. In State of J&K v. Sajad Ahmed Mir, (2006) 5 SCC 766 : 2006 SCC (L&S) 1195] the Court has held that: (SCC pp. 770-71, para 11)"11. Normally, an employment in the 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 from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution."18. Similarly in the case of MGB Gramin Bank, (2014) 13 SCC 583 has also explained the meaning of "Vested Right" and has held that unless an accrued/vested Right has been decided by a party, the policy could be changed. The relevant paragraphs are extracted as under:-"6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its breadearner. Mere death of a government employee in harness does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.7. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138: 1994 SCC (L&S) 930 : (1994) 27 ATC 537] this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: (SCC pp. 140-41, paras 2, 4 & 6)"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 the post held by the deceased. 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.4. The only ground which can justify compassionate employment is the penurious condition of the deceased's family.* * *6. The consideration for such employment is not a vested right . The object being to enable the family to get over the financial crisis ." (emphasis added)8. An "ameliorating relief" should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.9. The courts and the tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments.11. The word "vested" is defined in Black's Law Dictionary (6th Edn.) at p. 1563, as:"Vested.-fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute 'vested rights'."12. In Webster's Comprehensive Dictionary (International Edition) at p. 1397, "vested" is defined as law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. (Vide Bibi Sayeeda v. State of Bihar, (1996) 9 SCC 516 : AIR 1996 SC 1936] and J.S. Yadav v. State of U. P., (2011) 6 SCC 570 : (2011) 2 SCC (L&S) 140] )13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed. [Vide Kuldeep Singh v. Govt. (NCT of Delhi)., (2006) 5 SCC 702 : AIR 2006 SC 2652] .19. In view of the law laid down, it is mandatory for the authority/employer to consider the hardship and the financial condition faced by the applicant for appointment/compensation under the die-in-harness scheme. It is not in dispute that as evident from the affidavits filed before the learned Single Judge, the mother of the petitioner was receiving SBI family pension from Silchar Branch amount to Rs. 2611/- in January 2003 and another pension @ Rs.5751/- per month from the Department of BSNL and it is also pleaded by the appellants that the mother is owning a house at Tarani Road, Rangirkhari, Silchar worth Rs.10 Lakhs.20. The respondent has not been able to dispute the facts pleaded by the appellant before the learned Single Judge. It has also not been explained by the petitioner as to how he has been surviving/earning his livelihood without any gainful employment since after 04-01-2003, i.e., after the death of his brother. The appellant Bank has instead pleaded that the respondent and his mother were receiving Rs.30,008/- per month as pension and the credit balance in both accounts as on 24-08-2018 are Rs.1,15,656.70/- and Rs.3,37,353.85/- respectively.21. In terms of the law laid down by the Hon'ble Supreme Court as well as the Scheme which was prepared in terms of the law laid down by the Hon'ble Supreme Court, the purpose for appointment/compensation in cases of death-in-harness is to permit the immediate family members some avenue to tide over the hard financial conditions that may fall on the legal heirs/family members immediately after a person dies-in-harness. Under such circumstances, the employer

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is required to examine the various parameters including the financial hardship that are likely to be faced by the family members of a person who dies-in-harness and then take a suitable call as to whether any order for any compensation is required to be made under the "die-in-harness" Scheme. No vested/accrued right is available to the petitioner under the scheme.22. In the facts of the present case, the appellant SBI had already taken the decision that there was no financial hardship faced by the respondent and had categorically come to a finding that the respondent-petitioner was not eligible for any such payment under the 2005 Scheme. The learned Single Judge failed to appreciate that the appellant Bank authorities had examined the matter and have considered the application as per the terms and conditions of the Scheme and it had found the respondent/petitioner not suitable for grant of any relief under the said Scheme. It is not the case of the respondent/petitioner that the facts pleaded by the appellant Bank are incorrect or not based on correct information. The learned Single Judge failed to notice that this Court in the earlier record of proceedings in its order dated 06- 08-2013 passed in WP(C) No. 2769/2007, categorically observed that the relief prayed for by the petitioner cannot be granted but while disposing of the said writ petition, granted liberty to petitioner (respondent herein) to file fresh application as per the prescribed form under the new Scheme. The respondent, as the petitioner, accepted the order dated 06-08-2013 and in terms of the said order passed in WP(C) No. 2769/2007, preferred the application for compensation in lieu of compassionate appointment. No appeal was filed against the order dated 06-08-2013. The application was duly considered by the appellant Bank and found not admissible. The benefit under Clause 14 to an applicant will be available when any application had been submitted and was pending on the date the new Scheme is approved by the Executive Committee and which will be dealt with according to the new Scheme. In that view of the matter, the order dated 06-08-2013 passed in WP(C) No. 2769/2007 having attained finality, the benefit of Clause 14 cannot be available to the respondent/petitioner. As such, the provisions of Clause 14 cannot be invoked or made applicable to the facts of the present case. Such interpretation by the learned Single Judge is erroneous and cannot be sustained in law.23. There is another aspect of the matter. As per Clause 4 (i) of the Scheme extracted in Para 13 hereinabove, 'family' does not include brother of the employee who died in harness. The respondent writ petitioner being the brother is not even eligible to claim benefit of the Scheme. In such circumstances also no relief is admissible to the writ petitioner. This aspect of the matter not having been considered by learned Single Judge has also caused injustice and therefore also impugned order is liable to be set aside.24. Consequently, we find merit in the present appeal preferred by the appellant SBI and hold that the impugned order, dated 11-12-2018, passed by the learned Single Judge in WP(C) No. 3683/2016 is erroneous and the same is interfered and set aside.25. The appeal is allowed and the WP(C) No. 3683/2016 is dismissed.26. No order as to costs.
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