Sharad Chandra Singh vs State Bank of India and Ors.

Devi Prasad Singh, J.—Heard learned counsel for the parties and perused the records. Writ petition has been preferred against the impugned order passed by the respondents declining to appoint the petitioner on compassionate ground in view of alleged fact that the petitioner''s family is in financially sound position. The petitioner''s father was a cashier cum clerk working in the State Bank of India Akbarpur Branch. He died in harness on 30.09.1990. Thereafter petitioner had moved an application for appointment on compassionate ground. By the impugned order petitioner''s application has been rejected. While rejecting the application a finding has been recorded that terminal benefit paid to the petitioner in lieu of death of his father which is Rs. 0.15 lac (Rs. Fifteen thousand). The petitioner is drawing family pension of Rs. 1877/ per month and an amount of Rs. 250/ per month under Bank''s Mutual Welfare Scheme.

It has been submitted by the petitioner''s counsel that petitioner is aged about 23 years and two other brothers who were minor and now aged about 18 and 19 years. The petitioner''s grand mother is aged about 80 years and on account of old age heavy amount is invested to provide her medical aid. The further submission of learned counsel for the petitioner is that even family pension which has been recommended by the respondents to the tune of Rs. 1877/ per month shall continue only up to the year 2011 and thereafter respondent Bank will stop the payment of pension. In consequence thereof even assuming that assessment made by the respondents is correct but Rs. 3661/ per month shall not be sufficient to meet out the requirement of four persons which includes old lady of almost 80 years of age.

While rejecting the petitioner''s claim the respondent had relied upon the judgment of Hon''ble Supreme Court reported in (1994) 4 SCC 138, Umesh Kumar Nagpal Vs. State of Haryana and others. Relevant portion from the judgment of Umesh Kumar Nagpal relied upon by the respondents Bank is reproduced as under:

"a. The object of granting compassionate appointment is

to enable the family to tide over the sudden crisis caused by the death of the sole bread winner, and

to relieve the family of the financial destitution and to help it get over the emergency.

(b) Mere death of an employee in harness does not entitle his family to such source of livelihood.

(c) The Government or public authority has to examine the financial condition of the family of the deceased and 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.

(d) The only ground which can justify compassionate appointments is the penurious condition of the deceased''s family. Offering employment irrespective of the financial condition of the family is legally impermissible."

It has been stated by respondents counsel that aforesaid proposition of law laid down by the Hon''ble Supreme Court in the case of Nagpal(supra) has been applied by the respondent''s Bank.

On the other hand, the submission of the learned counsel for the petitioner is that the condition of petitioner''s family is penurious and the members of petitioner family is not able to cope up with the situation arising on account of death of their father.

A perusal of the judgement and proposition of law laid down by the Hon''ble Supreme Court in the case of Nagpal (supra) does not provide that a person shall not be entitled for appointment on compassionate ground rather the dependant of deceased employee may claim appointment in case the condition of family is penurious and facing financial destitution.

In the present case, admittedly, the petitioner was paid only terminal benefits after death of their father and family pension which has been paid to the petitioner''s family is only of Rs. 1877/ per month that too shall be stop after the year 2011. The petitioner''s age will be around 25 years and the age of two brothers will be around 20 and 21 years in the year 2011. It can not be presumed that merely after two years the members of the petitioner''s family shall be engaged somewherelse more so when the petitioner is only graduate and other brothers are student of intermediate and graduate classes. Heavy burden to provide medical treatment to the old age grand mother is also on petitioner''s shoulder. No inference can be drawn that the agriculturist shall incur income of Rs. 250 per month/ for merely one bigha of agriculture land as it depend on the facts and circumstances of a particular case. While passing the impugned order, it has been not noted by the Assistant General Manager the nature of agricultural land the petitioner''s family possess. In case, it is barren land then there shall be no income and in case of cultivatory land income depends upon the available infrastructure to cultivate the land more so when the petitioner and his two brothers are of tender age. Needless to say that to meet out the requirement of a family of four persons having old age lady of 80 year keeping in view the price hike of the essential commodities may be Rs. 10, 000/ or more per month. Accordingly, the finding recorded by the respondent with regard to financial destitution or penurious condition of the petitioner''s family seems to be based on unfounded facts. Right to livelihood is fundamental rights guaranteed under Article 21 of the Constitution of India. Accordingly, while declining a person to appoint on compassionate ground the reason must be based on material which may speak with regard to financial soundness of the deceased family. Decision should be not taken with regard to financial soundness on unfounded facts or in a casual manner.

In the present case while passing the impugned order the competent authority had not applied mind towards the fact that the income incurred by the deceased family shall not be sufficient to meet out the immediate requirement as a source of livelihood. It has been settled by Hon''ble Supreme court by catena of judgements that right to live does not mean animal living. It should be sufficient to meet out the minimum requirement of family and it corelate with the financial status, which may mean the minimum requirement of family. While evaluating the financial destitution or penurious condition authorities have to kept in mind as to whether dependants of deceased employee has got sufficient source of livelihood to meet out the minimum requirement of life. While deciding the financial destitution it is not necessary for the employer to decide the issue keeping in view the status of the dependant of employees but it should always be kept in mind the minimum requirement necessary to live a human life. The word "Life" has been used prominently in the Universal Declaration of Human Rights, 1948 (Article 3). The fundamental rights under the Constitution are almost in consonance with the Rights contained in the Universal Declaration of Human Rights. India is a party of Universal declaration had ratified the declaration has considered by Hon''ble Supreme Court in the case of Kubic Darusz Vs. Union of India and others reported in AIR 1990 SC 605. That being so since life is recognized as a basic human right under the Universal Declaration of Human Right 1948, it has to be considered in the same manner and interpretation as has been placed on that word by this Court in its various decisions relating to Article 21 of the Constitution. The meaning of word "Life" can not be narrowed down. According to the tenor of the language used in Article 21 it will be available not only to every citizen of this country, but also to a "person" who may not be a citizen of the country vide AIR 2000 SC 988, Chairman, Railway Board and others Vs. Mrs. Chandrima Das and others. The meaning of word "life" has been interpreted by Hon''ble Supreme Court from time to time. In Kharak Singh Vs. State of U.P; AIR 1963 SC 1295 it was held that the term life indicates more than mere animal existence. The inhibitions contained in Article 21 against its deprivation extends even to those facilities by which life is enjoyed. In Bandhua Mukti Morcha Vs. Union of India; AIR 1984 SC 802 it was held that right to life under Article 21 means the right to live with dignity, free from exploitation.

While deciding a case with regard to ceiling on dearness allowance (reported in 2006 (24) LCD 1053, Prabhu Narain Sharma Vs. State of U.P. and others) I have relied upon the judgement of Hon''ble Supreme Court reported in 1997 (9) SCC 377, Air India Statutory Corporation. Vs. United Labour, 1999 (3) SCC 601 where Hon''ble Supreme Court had observed that Social justice, equality and dignity of person are cornestones of social democracy and it include all essential facilities and opportunities means to develop and to live with minimum comforts, food, shelter, clothing and health. Relevant para from the judgement of Air India Statutory Corporation (supra) is reproduced as under:

"21. In the case of Air India Statutory Corporation. Vs. United Labour (supra) Hon''ble Supreme Court held that social security, just and humane conditions of work and leisure to workman are part of their meaningful right to life and to achieve self expression of their personality and to enjoy the life with dignity. In case, the ceiling is fixed over the dearness allowance of the work charge employees, after rise in consumer price index in case the hike in price is not neutralise by payment of full dearness allowances payable to regular employee, they may suffer with serious consequences in quality of life. For convenience relevant portion for the Apex court judgement from Air India Statutory Corporation (supra) is reproduced as under:

"Social justice, equality and dignity of person are cornestones of social democracy. The concept of "social justice" which the constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. "Social Justice" is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devoid to mitigate the sufferings of the poor, weak, dalits, tribal and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury to ward off distress and to make their life livable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation and constitutional goal. Social security, just and humane condition of work and leisure to workman are the pat of his meaningful right to life and to achieve self expression of his personality and to enjoy the life with dignity. The State should provide facility and opportunities to enable them to reach at least minimum standard of health, economic security and civilized living while sharing according to their capacity, social and cultural heritage."

All essential facilities and opportunities to the poor people are fundamental means to development, to live with minimum comforts, food, shelter, clothing and health. Due to economic constraints, though right to work was not declared as a fundamental right, right to work of workman, lower class, middle class and poor people is a means to development and source to earn livelihood. Though, right to employment cannot, as a right, be claimed but after the appointment to a post or an office, be it under th State, its agency, instrumentality, juristic person or private entrepreneur, it is required to be dealt with as per public element and to act in public interest assuring equality, which is a genus of Article 14 and other concomitant rights emanating therefrom are species to make their right to life and dignity of person real and meaningful. Democracy offers to everyone as a doer, an exerted an developer and enjoyer of his human capacities, rather than merely as a consumer of utilities. In a socialist democracy governed by the rule of law, private property, right of the citizen for development and his right to employment and his entitlement for employment to the Labour, would all harmoniously be blended to serve larger social interest and public purpose."

Apart from above quality of life is also part and parcel of Article 21 of the Constitution vide 1997 (5) scc 10 Dr. Ashok Vs. Union of India and others, 1978 (1) SCC 248, Menaka Gandhi Vs. Union of India, 1989 Supp (1) SCC 251 Ramsharan Autyanuprasi Vs. Union of India, (1984) 3 SCC 165 Vincent Panikulangara Vs. Union of India, (1983) 1 SCC 124 Board of Trustees of the Port of Bombay Vs. Dilip Kumar Raghavendranath Nandkarni, (1981) 1 SCC 608 Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi, 1991 Supp (1) SCC 600, Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress, (1991) 1 SCC 598, Subhash Kumar Vs. State of Bihar, Olga Tellis Vs. Bombay Municipal Corporation, (1985) 3 SCC 545, C.E.S.C. Ltds. Vs. Subhash Chandra Bose, (1992) 1 SCC 441, Dalmia Cement (Bharat ) Ltd. Vs. Union of India, (1996) 10 SCC 104.

One of the argument advanced by learned counsel for the respondents is that the scheme under which petitioner''s case was considered is no more in existence and new scheme has been framed. Now it is consistent view of this Court as well as Hon''ble Supreme Court that the change of Rule or Scheme shall not affect the entitlement of a person at a particular point of time under the respective scheme. Setting aside of impugned order means the petitioner''s case should be reconsidered in pursuance to earlier scheme and the observation made in the present judgement shall not be affected by new scheme.

In view of above, while deciding the penurious condition of dependant of deceased family and financial destitution for the purpose of compassionate appointment it shall be incumbent upon the authorities to keep in mind the fundamental right guaranteed under Article 21 of the constitution of India. It shall be necessary to record a finding while rejecting an application for compassionate appointment that the dependants of deceased family is in a position to lead a life with dignity free from exploitation. Members of the deceased family may lead a life to enjoy the faculties of a life and not mere animal existence. Dependants of deceased family shall be able to cope up with the minimum requirement of food, cloth, shelter, education and medical aid. In the absence of finding on these points a decision rejecting the claim shall be unjust and illegal. Fundamental right protected under Article 21 of the Constitution of India neither can be diluted nor circumvented by any scheme or statutory provisions.

The financial destitution or penurious condition of a family may vary from person to person. The minimum requirement of the dependant of deceased Class IV employee may be lesser than the requirement of the dependant of Class III, II or Class I employees. Accordingly, while evaluating the claim with regard to compassionate appointment this aspect of the matter should also be taken into account. Keeping in view the relevant facts and circumstances of the case it shall be appropriate for the competent authority to evaluate the minimum requirement of the family in terms of cash keeping in view the minimum requirement for shelter, education, medical aid etc. and number of dependant family members. The assessment should be based objectively and consciously keeping in view the fundamental right enshrined under Article 21 (supra) of the Constitution.

In view of above, the financial condition the petitioner seems to be entitled for appointment on compassionate ground. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 17.08.2005 as contained in Annexure1 to the writ petition with consequential benefits. A writ in the nature of mandamus is issued commanding the opposite parties to reconsider the petitioner''s case for appointment on compassionate ground within a period of two months from the date of receipt of a certified copy of this order keeping in view the observation made hereinabove. Any contrary provision contained in the subsequent scheme shall not affect the petitioner''s claim adjudicated by this Court.

Writ petition is allowed accordingly.