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Indian Bank and Ors. Vs. Promila and Ors. - (Supreme Court) (08 Jan 2020)

It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review



In facts of present case, Jagdish Raj, husband of Respondent No. 1 and father of Respondent No. 2, was appointed as a Clerk-cum-Shroff in the Appellant-Bank, where he continued to work till his unfortunate demise.

Late Jagdish Raj was survived by his wife and three minor children. As it transpires, Respondent No. 1 was already employed and earning a salary at the time of the demise of her husband, which information came to the knowledge of the Appellant-Bank, later. The cause for the present dispute arises from an application made on behalf of the son (Respondent No. 2) seeking compassionate employment on account of demise of Shri Jagdish Raj.

It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time, when the employee passes away. An aspect examined by judgment of Supreme Court in Canara Bank and Anr. v. M. Mahesh Kumar is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment.

The question of applicability of any subsequent Scheme really does not apply in view of the judgment of this Court in Canara Bank and Anr. v. M. Mahesh Kumar. Thus, it would not be appropriate to examine the case of the Respondents in the context of subsequent Schemes, but only in the context of the Scheme of 4th April, 1979, the terms of which continued to be applicable even as per the new Scheme of 5th November, 1985, i.e. the Scheme applicable to the Respondents. There is no provision in this Scheme for any ex gratia payment. The option of compassionate appointment was available only if the full amount of gratuity was not taken, something which was done. Thus, having taken the full amount of gratuity, the option of compassionate appointment really was not available to the Respondents.

Thus, looked under any Schemes, the Respondents cannot claim benefit, though, it is only the relevant Scheme prevalent on the date of demise of the employee, which could have been considered to be applicable. It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review, as has been recently emphasized by this Court in State of Himachal Pradesh and Anr. v. Parkash Chand.

The sympathy alone cannot give remedy to the Respondents, more so when the relevant benefits available to the Respondents have been granted by the Appellant-Bank and when Respondent No. 1, herself, was in employment having monthly income above the benchmark. The appeal is accordingly allowed.

Relevant : Canara Bank and Ors. v. M. Mahesh Kumar and Ors. MANU/SC/0634/2015, State of Himachal Pradesh and Anr. v. Parkash Chand MANU/SC/0076/2019


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