Abha Sinha vs State Bank Of Hyderabad Now And Ors

Heard Sri Birmani Kumar, learned counsel for the appellant and Sri Anjani Kumar Mishra, learned counsel for the State Bank of Hyderabad which

has now merged with State Bank of India.

The appellant is aggrieved as her claim for compassionate appointment has been rejected by the Bank on 30th July, 2015 and a challenge raised to the

same before the learned Single Judge has met the same fate. The impugned judgment dated 27.11.2017 of the learned Single Judge records that since

the appellant has received an ex-gratia amount of Rs.12,00,000/-, then a claim of compassionate appointment is an after thought, and the same cannot

be availed of through the extra-ordinary jurisdiction under Article 226 of the Constitution of India.

Learned counsel for the appellant contends that the appellant had a right to be considered for compassionate appointment keeping in view the scheme

which was applicable as on the date of the death of the appellant’s husband. The appellant’s husband died on 13th of December, 2014 while

working in the Bank. The Scheme which was applicable prior to 2014 is reflected in the Circular dated 30th August, 2011 which is extracted

hereinunder:-

“STATE BANK OF HYDERABAD (ASSOCIATE OF THE STATE BANK OF INDIA) HEAD OFFICE, GUNFOUNDRY, HYDERABAD

500001

Serial No.585 Circular No. PER/2011-12/53 DEPT: PERSONNEL DEPT

Date: 30.08.2011

ALL BRANCHES AND ADMINISTRATIVE OFFICES.

Subject: SCHEME FOR APPOINTMENT ON COMPASSIONATE GROUNDS IN EXCEPTIONAL CASES IN STATE BANK OF

HYDERABAD

The Executive Committee has accorded approval at its meeting held on 26.08.2011 a scheme for appointment on compassionate grounds in

exceptional cases. The “SBH Scheme for Appointment on Compassionate Grounds in Exceptional Cases†shall be effective from 12.12.2005 the

date on which Scheme of payment of ex-gratia lumpsum amount replaced the earlier scheme of compassionate appointment.

The details of the scheme are annexed for your information and necessary action. The scheme will be applicable in the following cases:

i) Employees dying while performing his official duty, as a result of violence, terrorism, robbery or dacoity

ii) Employees dying within five years of his first appointment or before reaching the age of 30 years, which ever is later, leaving a

dependent spouse and/or minor children.

The cases of death related to the period prior to 12.12.2005 will not be considered for compassionate appointment under the scheme.

The cases where the dependents have already been paid ex-gratia lumpsum amount will not be considered for compassionate appointment under the

scheme.

Application for employment under the scheme in respect of past eligible cases of death on and after 12.12.2005 and upto 31.08.2011 shall be obtained

by the branch/office where the deceased employee had last worked. The branch/office shall immediately contact the family of the deceased employee

and provide them prescribed applications and complete all necessary formalities in this regard. Any laxity/delay in communicating this scheme to

family of the deceased employee will be viewed seriously.

The time limit for last date of submission of applications by the dependents/ family in respect of past cases is 31st Dec 2011.

The time limit for submission of applications by the dependents/ family in respect of death cases on and after the date of circular will be 6 months

from the date of death of the employee.

Please bring the contents of the circular to the notice of all the members of staff working at your Branch/Office.

Sd/

GENERAL MANGER (OPERATIONS)â€​

The aforesaid Scheme came to be revised in the year 2014 itself and before the death of the employee. The said revised Scheme of the year 2014 is

extracted hereinunder for ready reference:-

“SCHEME OF COMPASSIONATE APPOINTMENT ON COMPASSIONATE GROUNDS IN EXCEPTIONAL CASES IN STATE BANK

OF HYDERABAD

NAME: “SBH Scheme for Compassionate Appointment on Compassionate Grounds in Exceptional Cases- 2014â€​.

BACKGROUND:

In compliance with the directions received from Government of India, Bank introduced “Scheme for Payment of Ex-gratia lumpsum amountâ€

w.e.f. 12.12.2005 in lieu of Compassionate Appointments. Subsequently, Indian Banks’ Association came out with another scheme for providing

compassionate appointment in the following exceptional cases and our Bank also adopted the same w.e.f. 12.12.2005 as a parallel scheme for

payment of Ex-gratia lumpsum amount.

a) Where an employee died while performing official duty, as a result of violence, terrorism, robbery or dacoity; or

b) Where an employee died within five years of first appointment or before reaching the age of 30 years, whichever is later, leaving a dependent

spouse and/or minor children.

OBJECTIVE OF THE NEW SCHEME-2014

In subsequent developments, GOI has advised that all Public Sector Banks can have both the options i.e. compassionate appointment or payment of

ex-gratia lumpsum amount. Accordingly, the Bank has decided to continue the scheme for compassionate appointment in exceptional circumstances

with certain modifications in terms and conditions. The whole object of offering compassionate employment in such exceptional cases is to enable the

family to tide over the sudden crisis due to death of bread winner. The mere death of an employee in harness does not entitle his family to such a

source of livelihood. The object is to offer compassionate appointment only when the Bank is satisfied that the financial condition of the family is such

that but for the provision of employment the family will not be able to meet the crisis.

DEFINITIONS:

Unless the context otherwise requires in the Scheme.

i. “Bankâ€​ mean- State Bank of Hyderabad

ii. “Boardâ€​ means- Board of Directors or the Executive Committee of the Board of Directors of State Bank of Hyderabad.

iii. “Managing Directorâ€​ of the Bank means- the Managing Director of the State Bank of Hyderabad.â€​

A perusal of Clause 3 of the revised Scheme would indicate that apart from payment of ex-gratia lump sum amount a claim of compassionate

appointment can also be considered. The learned Single Judge has nowhere referred to the existence of such Scheme and its applicability nor has the

Bank while passing the order dated 30th July, 2015 taken into consideration the exceptional circumstances in which the appellant, who is a young

widow, had claimed compassionate appointment.

The right to claim compassionate appointment arises out of the Scheme of the respondent-Bank itself. As to what is a right has been described by the

Apex Court in the case of Mr. ‘X’ Versus Hospital ‘Z’, reported in (1998) 8 SCC 296, paragraph 15, which is extracted hereinunder:-

“Right†is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect

for such interest would be a legal duty. That is how Salmond has defined “rightâ€. In order, therefore, that an interest becomes the subject of a

legal right, it has to have not merely legal protection but also legal recognition. The elements of a “legal right†are that the “right†is vested in

a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting

in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a

person who is bound by a corresponding duty not to violate that right.â€​

The right to be considered for compassionate appointment, therefore, is available to the appellant and hence the corresponding obligation does exist on

the Bank to consider the said request of the appellant in accordance with the Scheme which is applicable. We do not find the Bank to have applied its

mind to the circumstances which the appellant claims to be exceptional for extension of such benefit apart from the payment of ex-gratia which she

has received. The learned Single Judge has treated the receipt of ex-gratia payment in a lump sum manner to be a final settlement by the appellant

and has proceeded to dismiss the writ petition.

We are unable to agree with the aforesaid conclusion drawn for the reasons already stated above.

Consequently, the impugned judgement dated 27.11.2017 and the order of the Bank dated 30th July, 2015 are set aside with a direction to the

concerned competent authority to proceed to consider the claim of the appellant in the light of the observations made hereinabove and the Scheme

which may be applicable for grant of compassionate appointment or otherwise within a period of three months from the date of receipt of a certified

copy of the order before the said authority.

The appeal is, accordingly, allowed.