Wednesday, August 21, 2013

Job on compassionate grounds not a right: SC

அரசு ஊழியர் இறந்தால் அவரது குடும்பத்தினர் கருணை அடிப்படையில் வேலை கோர முடியாது

First Published: 20 August 2013 05:34 PM IST

அரசு ஊழியர் ஒருவர் பணியில் இருக்கும்போது உயிரிழந்தால், கருணை அடிப்படையில் குடும்பத்தினருக்கு வேலை அளிக்க வேண்டும் என்ற கட்டாயம் கிடையாது.அதேநேரத்தில் பணி நியமனம் கோரும் அந்தக் குடும்பத்தின் நபர், அந்தப் பணிக்குரிய கல்வித் தகுதியை கட்டாயம் பெற்றிருக்க வேண்டும் என்று உச்ச நீதிமன்றம் உத்தரவிட்டுள்ளது.

நீதிபதிகள் பி.எஸ்.சௌகான், எஸ்.ஏ.பாப்டே ஆகியோர் அடங்கிய அமர்வு மேலும் கூறியதாவது: பணியில் இருக்கும்போது உயிரிழந்த ஊழியரின் குடும்ப சூழ்நிலை மற்றும் பொருளாதார நிலையை, சம்பந்தப்பட்ட துறையின் தகுதிவாய்ந்த அதிகாரி ஆராய வேண்டும்.வேலை வழங்கவில்லை எனில், அந்த குடும்பத்தால் நெருக்கடியை சமாளிக்க முடியாது என்பதை உறுதிசெய்து கொண்ட பின்னால்தான், அந்தக் குடும்ப உறுப்பினர்களில் ஒருவருக்கு வேலை வழங்க வேண்டும். ஆனால் அந்த வேலைக்கு நியமிக்கப்படுபவர், அதற்கான கல்வித் தகுதியை கட்டாயம் பெற்றிருக்க வேண்டும் என்று நீதிபதிகள் உத்தரவிட்டனர்.

ராஜஸ்தான் மாநில உச்ச நீதிமன்ற தீர்ப்பை எதிர்த்து, எம்ஜிபி கிராம வங்கி தாக்கல் செய்த மேல் முறையீட்டு மனு மீதான விசாரணையின் போதுதான் நீதிபதிகள் மேற்கண்டவாறு தீர்ப்பு அளித்தனர்.இந்த வங்கியில் மூன்றாம் நிலை ஊழியராக பணியாற்றி வந்த ஊழியர் ஒருவர் கடந்த 2006, ஏப்ரல் 19-ஆம் தேதி மரணமடைந்து விட்டார்.இதையடுத்து அவரது மகன் சக்ரவர்த்தி சிங், தனக்கு கருணை அடிப்படையில் வேலை வழங்க வேண்டும் என்று, அந்த வங்கிக்கு 2006, மே மாதம் 12-ஆம் தேதி விண்ணப்பம் அனுப்பினார். அதை அந்த வங்கி நிராகரித்து விட்டது.இதையடுத்து, ராஜஸ்தான் மாநில உயர் நீதிமன்றத்தில் முறையிட்டார். சக்ரவர்த்தி சிங்குக்கு கருணை அடிப்படையில் பணி வழங்குமாறு வங்கி நிர்வாகத்துக்கு நீதிமன்றம் உத்தரவிட்டது. இந்த உத்தரவை எதிர்த்து வங்கி நிர்வாகம் உச்ச நீதிமன்றத்தில் மேல் முறையீட்டு மனுவை தாக்கல் செய்தது. மனுவை ஏற்றுக் கொண்ட நீதிமன்றம், உயர் நீதிமன்றத்தின் தீர்ப்பை நிராகரித்தது.

கருணை அடிப்படையில் பணி வழங்க, உயர் நீதிமன்றத்தின் தனி நீதிபதி மற்றும் டிவிஷன் பெஞ்ச் கூறிய காரணங்கள், சட்டத்தின் பார்வையில் வலுவூட்டுவதாக இல்லை என்று உச்ச நீதிமன்ற நீதிபதிகள் கூறி, அந்த தீர்ப்பை நிராகரித்தனர். 

Courtesy_

Also read the related stories

Job on compassionate grounds not a right: SC

Satya Prakash, Hindustan Times  New Delhi, June 17, 2012

As thousands of dependents of government employees seek jobs after the deaths of their breadwinners, the Supreme Court has clarified the legal position, saying that appointments in government offices on compassionate grounds cannot be claimed as a right.

A bench of Justices BS Chauhan and Dipak Misra said such appointments were permissible only in genuine cases as per rules, else it would violate the Constitution.

"Appointment on compassionate grounds cannot be claimed as a matter of right. As a rule, public service appointments 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," the bench said.

The ruling came on the Centre's appeal against an Allahabad High Court order

giving a job on compassionate grounds to Shashank Goswami, whose father Anand Kishore Gautam, a senior accountant

in the office of the accountant-general, Allahabad,  died on March 19, 2001. His two sons were aged about 20 and 19 years and his daughter around 17 years.

Shashank, one of the sons, applied for a job on compassionate grounds, but his plea was rejected, as he did not fulfil the requirements of the rules framed by the government. The Central Administrative Tribunal, however, reversed the order and asked the government to give him a job on compassionate grounds and the order was upheld by the high court in Allahabad.

However, the top court allowed the Centre's appeal, saying the claim for appointment on compassionate grounds was based on the premises that the applicant is dependent on the deceased employee.  

"Strictly, such a claim cannot be upheld on the touchstone of Article 14 (right to equality) or Article 16 (right to equality of opportunity in public employment) of the Constitution of India.   

"However, 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.    

"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," the apex court said.

The court said the rules stipulated that to get the job on compassionate grounds, the total income of the family from all sources including terminal benefits after death, excluding GPF, should not exceed Rs. 3 lakh.  

In this case, the total income of the family stood at R4.40 lakh, besides an additional family pension of Rs. 3,100 every month, received by deceased's widow Rashmi Gautam for a period of seven years and another Rs. 1,860 a month as admissible relief on pension.

"In view of the fact that, in the instant case the terminal benefits have been received by the family exceeding Rs. 3 lakhs, respondent Shashank is not eligible to be considered for the Group 'C' post," the court said.

Courtesy_

Also read the FULL Judgment at: MGB Gramin Bank Vs. Chakrawarti Singh

Supreme Court of India

Mgb Gramin Bank vs Chakrawarti Singh on 7 August, 2013

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6348 OF 2013

(Arising out of SLP(C)No.13957/2010)

MGB GRAMIN BANK Appellant (s)

VERSUS

CHAKRAWARTI SINGH Respondent(s)

O R D E R

1. Leave granted.

2. This appeal has been preferred against the impugned judgment and order dated 27.1.2010 passed by the Division Bench of the High Court of Rajasthan at Jodhpur in D.B.Civil Special Appeal (Writ)No.798 of 2009 upholding the judgment and order of the learned Single Judge dated 27.7.2009 passed in Writ Petition No.7869 of 2008 by which the respondent had been directed to be appointed under a scheme for compassionate appointment.

3. Facts and circumstances giving rise to this appeal are that: A. Father of the respondent who was working as a Class III employee with the appellant Bank died on 19.4.2006 while in harness. The respondent applied for compassionate appointment on 12.5.2006. B. During the pendency of the application filed by the respondent, a new scheme dated 12.6.2006 came into force with effect from 6.10.2006. Clause 14 thereof provides that all applications pending on the date of commencement of the scheme shall be considered for grant of ex-gratia payment to the family instead of compassionate appointment. C. As the appointment on compassionate ground was denied to the respondent, he preferred the writ petition before the High Court and the learned Single Judge took the view that as the cause of action had arisen prior to the commencement of the new scheme, therefore, the case was to be considered as per the then existing scheme i.e. the 1983 Scheme which provided for compassionate appointment and not for grant of ex-gratia payment. The Court directed the appellant not only to consider the case of appointment of the respondent on compassionate grounds but rather directed the appellant to appoint him. D. Aggrieved, the appellant challenged the said order by filing the Special Appeal which has been dismissed vide impugned judgment and order dated 27.1.2010 concurring with the judgment and order of the learned Single Judge.

Hence this appeal.

4. We have heard learned counsel for the parties.

5. 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 bread-earner. 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.

6. In Umesh Kumar Nagpal v State of Haryana & Ors., (1994) 4 SCC 138, 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:–

"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.…. 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 only ground which can justify compassionate employment is the penurious condition of the deceased's family. 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)

7. 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.

8. 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.

9. In A. Umarani v Registrar, Co-operative Societies & Ors., AIR 2004 SC 4504, while dealing with the issue, this Court held that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal.

10. The word 'vested' is defined in Black's Law Dictionary (6th Edition) at page 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.

11. In Webster's Comprehensive Dictionary (International Edition) at page 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 AIR 1996 SC 516; and J.S. Yadav v State of Uttar Pradesh (2011) 6 SCC 570) 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: Kuldip Singh v Government, NCT Delhi AIR 2006 SC 2652)

12. A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in State Bank of India & Anr. vs. Raj Kumar (2010) 11 SCC 661. Clause 14 of the said Scheme is verbatim to clause 14 of the scheme involved herein, which reads as under:

"14. Date of effect of the scheme and disposal of pending applications:

The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compasionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfill all the terms and conditions of this scheme."

13. The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered.

14. In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The appeal is allowed and the impugned judgments of the High Court are set aside.

15. The respondent may apply for consideration of his case under the new Scheme and the appellant shall consider his case strictly in accordance with clause 14 of the said new Scheme within a period of three months from the date of receiving of application. With these observations, appeal stands disposed of.

[ DR. B.S. CHAUHAN, J ] and [ S.A. BOBDE, J ] 

NEW DELHI, AUGUST 7, 2013 

Courtesy_

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