Allahabad Bank and another vs Kumari Surabhi alias Ruby and others

Hon''ble S.S. Chauhan, J.—Heard learned counsel for the appellants and learned counsel for the respondents.

This second appeal has been filed against the judgment and decree dated 25.01.2010 passed by the 3rd Civil Judge (Senior Division), Faizabad and the appellate order dated 27.9.2010 passed by Addl. District Judge, Court No.4, Faizabad.

The dispute arose between the plaintiffs and the defendants in respect of a compassionate appointment. The deceased employee Gopal Ji Srivastava died in harness on 10.11.1991, who was posted as Clerk-cum-Cashier, leaving behind his wife, one daughter and one son i.e. respondents no.3, 1 & 2 respectively. The wife of the deceased employee moved an application for her appointment on 29.11.1991. The application of the mother was opposed by respondents no.1 and 2 by filing a suit for injunction in 1993. The suit proceeded and during pendency of the suit, respondents no.1 and 2 attained majority. As and when they attained majority, an application was moved during pendency of the suit on their behalf. The suit thereafter was decided and after decision of the suit, mandatory injunction was issued for giving appointment to respondent no.2 as it was found that the mother had applied on 29.11.1991 and the then scheme contemplated that if the children are minor, then their claim will continue to survive in accordance with Clause 7 (b) of the then scheme provided the application was submitted within the stipulated time of one year. After decretal of the suit, an appeal was filed by the appellants and the same has been dismissed vide judgment and order dated 27.09.2010. After having lost from both the courts below, this second appeal has been filed, inter alia, on the substantial questions of law, namely, that the trial court and the appellate court have committed manifest error of law in not appreciating the fact that the minors have not applied during the permissible period of one year as contemplated in Clause 7 (b) of the then prevailing scheme and second, the Civil Judge was not competent to give direction for appointment and only power vested with the court was to give direction for consideration of appointment in accordance with law; and third the scheme in the meantime has taken a drastic change and compassionate appointment was given up in the said scheme on certain stipulations.

Learned counsel for respondents no.1 and 2, on the other hand, has submitted that the application was moved by the mother and at the same time a Writ Petition No.5993 (SS) of 1994 was filed by the brother of the deceased claiming compassionate appointment as at the relevant time under the relevant scheme brother was also included within the definition of dependants. The said writ petition was disposed of with the direction to consider the claim of the widow as well as the brother, whosoever found to be more suitable. Prior to the order, a suit for injunction was filed by respondents no.1 and 2 praying not to give appointment to the mother as allegations were made against her that she has deserted the deceased husband and was living separately and was employed as Midwife and so she cannot be included within the definition of dependant. The then scheme contemplates for applying within a period of one year. The dispute arose within it and so, the suit was filed in the year 1993, therefore, it has to be presumed that respondents no.1 and 2 came into picture as soon as the mother applied for compassionate appointment. There was no need on behalf of respondents no.1 and 2 to apply separately. The right to be considered along with the mother was intact and inherent with the respondents no.1 and 2. If the claim of the mother was to be considered, then it was also to be considered whether the minor children, who were then alive could be considered for appointment or not or in case they have not applied and it was in the knowledge of the Bank, then the claim of the mother could have been considered without considering the claim of the minor children. Both the courts below have recorded concurrent finding that the Bank was under obligation to consider and give appointment to Kumar Saurabh, who was the surviving son and who was minor at the time of death and in accordance with Clause 7 (b) of the then existing scheme, claim of the minor was to be considered till he attained majority. Learned counsel for the respondents, therefore, submits that the courts below have committed no illegality and no substantial question of law arises for consideration in the second appeal.

I have heard learned counsel for the parties and perused the record.

The sole point to be considered in this case is as to whether the application was necessary to be moved on behalf of respondents no.1 and 2 claiming appointment within one year of death of the deceased employee or that the issue which has arisen by virtue of application moved by the mother on 29.11.1991 gave rise to the dispute and once the dispute arose, the minors being alive were very much in the picture. Whether their claim could have been ignored merely on the ground that they have not applied for compassionate appointment.

It is to be noted that there was no occasion for the minors to have moved an application for appointment. They could have applied through their guardian i.e. the mother. The mother had already moved an application claiming appointment herself. In the wake of the fact that when the Bank has taken a specific stand that the mother was employed as Midwife and was getting salary for more than Rs.5,000/-as stated in the plaint, then it does not lie in the mouth of the Bank to say that the claim of the minors could not have been considered on account of the fact that no application was moved by the minors. The Bank was to consider the entire issue. A writ petition has already been preferred before this Court by the brother claiming compassionate appointment in which a direction has been given to consider the claim of the brother and the widow whosoever was found to be fit to get appointment. Prior to this litigation, a suit for injunction was filed against the mother and it was claimed that the mother was not competent to get appointment and it was only respondent no.2, who was eligible for being appointed after having attained majority.

Clause 7 (b) of the then scheme contemplates that claim of the minors has to be considered within a period of one year provided an application has been moved in this regard. It was for the mother to have applied on behalf of the minor children. Since mother herself claimed appointment, therefore, it has to be presumed that the dispute has been brought to the notice of the Bank and the Bank was supposed to be adjudicated the dispute in accordance with law. It is not in dispute that respondents no.1 and 2 were minor at the time of death. Clause 7 (b) of the then scheme contemplates that appointment shall be given to the minors as and when they attain majority, then merely because they have not applied for giving compassionate appointment, they cannot be denied appointment and their claim cannot be denied on that score. In the normal circumstances, the argument could have prevailed but when dispute has arisen and the mother herself was claiming appointment and it was in the knowledge of the Bank that the minor children are there and they are also claiming appointment, then in these circumstances, the formality of not applying can only be termed to be a merely irregularity and not illegality on the basis of which the appointment cannot be denied. The Bank being custodian of the welfare of the employees is not supposed to act in a partisan manner. The Bank cannot take the benefit of technicalities. The Bank has to act as guardian of the children when they have failed to get any employment on the basis of the litigation raised by the mother and the uncle in these days of crisis when it is hard to get employment and there being strong competition in this field one would ultimately aspire to get appointment in harness.

Learned counsel for the appellants placed reliance upon the judgments rendered in the case of State of Haryana and Another Vs. Ankur Gupta, , Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, , Union Bank of India and Others Vs. M.T. Latheesh, Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., , I.G. (Karmik) and Others Vs. Prahalad Mani Tripathi, , State Bank of India and Another Vs. Somvir Singh, , General Manager, State Bank of India and Others Vs. Anju Jain, , State Bank of India & anr. v. Raj Kumar, Civil Appeal No.1641 of 2010 and a decision of the Gauhati High Court rendered in the case of Smti Swarnamoyee Boro and another v. The Allahabad Bank and others, Writ Petition (C) No.2795 of 2006.

Ankur Gupta (supra) was the matter where the scheme was modified pursuant to the direction of the High Court, therein in those very circumstances, it was held that in absence of any provisions permitting relaxation of the stipulations compassionate appointment could not have been given. In M.T. Latheesh (supra), the Apex Court found that the financial condition of the family was to be examined in accordance with the norms specified therein which was not done. In this case it was found that the dues which were received after death by the widow under different heads on the death of the employee and deposited by her in fixed deposit fetching a recurring monthly income of interest which coupled with the family pension exceeding the net salary of the deceased. Here in the case in hand, the widow had already deserted and was living separately and that objection has not been taken or raised by the Bank in the court below and neither before this Court. Indian Drugs & Pharmaceuticals Ltd. (supra) is in a different context and does not deal with the issue in question as in the said case it was held that mere directions given by the Apex Court does not amount to a precedent unless principle of law has been laid down. Prahalad Mani Tripathi (supra) was a case where the principle was laid down that once an appointment has been accepted, then he cannot later on claim appointment to the higher post. In Somvir Singh (supra), it was held that in the light of the scheme framed by the Bank it has to be seen that the deceased employee left his family in penury or without any means of livelihood. In the present case the facts revealed that there was neither any such objection taken nor any such issue was framed nor any argument has been put forward in this regard. In Raj Kumar (supra), it was found that during the processing of application for compassionate appointment, scheme was substituted by a new scheme and in those very special circumstances, it was held that the appointment was to be considered in accordance with the new scheme. Decision of the Gauhati High Court rendered in the case of Smti Swarnamoyee Boro (supra) has only persuasive value and this Court is not inclined to agree with the finding recorded therein. The other cases rendered in the case of Union of India and others v. Smt. Draupadi Behara and another, 2005 (4) ESC (SC) 555, Doiwala Sugar Co. Ltd. v. Manjeet Singh Negi and another, (2006) 9 SCC 381 and State of Manipur Vs. Md. Rajaodin, are also on different context and on different footing and do not apply in the facts of the present case.

In the present case only technical objection which has been raised is that respondent no.2 had not applied, therefore, appointment cannot be given cannot be a ground for refusal of appointment to respondent no.2.

The second ground raised by the learned counsel for the Bank has some substance that a direction given to the Bank to give appointment directly is not sustainable under law and utmost the court could have given a direction for considering appointment in accordance with law.

I am in agreement with the aforesaid proposition and to that extent appeal stands partly allowed. The order of the appellate court dated 27.09.2010 is modified to the extent that the Bank shall consider and give appointment to respondent no.2 in view of the finding recorded in this judgment.

The appeal is accordingly partly allowed.