Compassionate Appointment : Supreme Court Flags Conflicting Judgments On Whether Scheme Prevalent On Date Of Death Or Date Of Consideration Applies

The Supreme Court, while deciding a civil appeal concerning compassionate appointment, observed that the issue of whether an applicable scheme should be the one in effect during the time of death or when the application for such appointment was considered, continues to be in a grey area. In brief, the respondent's father was working for the Canara bank and passed away in the year 2001, before his retirement. Accordingly, the respondent sought an appointment on compassionate grounds under the 1993 scheme. However, during the pendency of this litigation before the High Court, another scheme (2005) was introduced. The same entitled the family members of the deceased employees to lump sum ex-gratia payment. Notably, the bank issued a circular, discontinuing appointments under the scheme of 1993. A detailed background can be read here. Against this backdrop, the Bench of Justices Dipankar Datta and Prashant Kumar Mishra made the observation regarding conflicting judicial opinions. Most importantly, in the case of Canara Bank v M Mahesh Kumar., (2015) 7 SCC 412, it was held that a compassionate appointment claim cannot be decided based on a subsequent scheme that was introduced after the claim. However, given there were still divergent views, the Court in State Bank of India v. Sheo Shankar Tewari., (2019) 5 SCC 600, referred the matter to the larger bench. Before going further, it is important to explore the divergent views in several decisions as pointed out by the Court through this present judgment. Divergent Views In Abhishek Kumar v. State of Haryana., (2006) 12 SCC 44, the Court opined that since the 2003 Rules were not in existence at a time when the claim for appointment on compassionate grounds was made, thus, the same would be considered as per the 2001 rules. A similar view was rendered in Canara Bank's decision. In contrast, the Court in SBI v. Raj Kumar., (2010) 11 SCC 661 and MGB Gramin Bank v. Chakrawarti Singh., (2014) 13 SCC 583 took the view that a new scheme alone would apply and there is no vested right to have the matter considered under the former scheme. Close on the heels of the reference made in Sheo Shankar Tewari, the Court N.C. Santhosh v. State of Karnataka., (2020) 7 SCC 617 held that while considering such a claim, the norms prevailing on the date of consideration of the application would be applicable. The concerned portion reads as: “Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application.” Thus, the decision in N.C. Santhosh seemingly overruled Canara Bank by holding that the applicable scheme would be the one prevailing on the date of consideration of the application. However, the controversy re-emerged with subsequent decisions being rendered in line with Abhishek Kumar and Canara Bank's decision. For instance, in a three-judge bench decision in State of Madhya Pradesh v. Amit Shrivas., the Court observed that the compassionate appointments have to be in terms of the applicable policy as existing on the date of demise unless a subsequent policy is made applicable retrospectively. “We place on record that the decision in Amit Shrivas (supra) refers to an earlier decision in State of Gujarat v. Arvind T. Tiwari in paragraph 16, extracted above, as if such decision lays down the law that a subsequent policy could be made applicable retrospectively.,” the Court marked. To support it cited the relevant portion of Arvind T. Tiwari. The same reads as: “18. Thus, the question framed by this Court with respect to whether the application for compassionate employment is to be considered as per existing rules, or under the rules as existing on the date of death of the employee, is not required to be considered.,” It is indeed debatable whether a policy for compassionate appointment, which is in the nature of an executive order, can have retrospective application., the Court said in the present case. Following the decision in Amit Shrivas, the judge bench in Indian Bank v. Promila and State of Madhya Pradesh v. Ashish Awasthi., reiterated that the policy prevalent at the time of death of the deceased employee will be considered for the appointment on compassionate grounds. The Court in the latter case observed: “"As per the settled preposition of law laid down by this Court for appointment on compassionate ground, the policy prevalent at the time of death of the 4 deceased employee only is required to be considered and not the subsequent policy. 4.1 In the case of Indian Bank and Ors. Vs. Promila and Anr., (2020) 2 SCC 729, it is observed and held that claim for compassionate ...

Compassionate Appointment : Supreme Court Flags Conflicting Judgments On Whether Scheme Prevalent On Date Of Death Or Date Of Consideration Applies

Gyanvi Khanna

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