Compensate appointment = We have to keep in mind the basic principles applicable to the cases of compassionate employment, i.e., succor being provided at the stage of unfortunate demise, coupled with compassionate employment not being an alternate method of public employment. If these factors are kept in mind, it would be noticed that the respondents had the wherewithal at the relevant stage of time, as per the norms, to deal with the unfortunate situation which they were faced with. Thus, looked under any Schemes, the respondents cannot claim benefit, though, as clarified aforesaid, it is only the relevant Scheme prevalent on the date of demise of the employee, which could have been considered to be applicable, in view of the judgment of this Court in Canara Bank3 . 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 & Anr. v. Parkash 3(supra) 10 Chand4 . We may have sympathy with the respondents about the predicament they faced on the demise of Shri Jagdish Raj, but then 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVILAPPELLATE JURISDICTION
CIVIL APPEAL NO.2798 OF 2010
INDIAN BANK & ORS. … Appellants
VERSUS
PROMILA & ANR. …Respondents
J U D G M E N T
SANJAY KISHAN KAUL, J.

  1. One Jagdish Raj, husband of respondent No.1 and father of
    respondent No.2, was appointed as a Clerk-cum-Shroff in the appellantBank, where he continued to work till his unfortunate demise on 15.1.2004.
    He was drawing a gross monthly salary of Rs.16,486.60 at the time of his
    demise. Consequent to his death, the benefits available for the family of
    Jagdish Raj were calculated and sanctioned to the tune of Rs.5,45,872, but
    on account of deductions for staff housing and vehicle loans, post
    1
    adjustment, a net payment of Rs.2,99,672 was made to the family, apart
    from the grant of a monthly pension of Rs.5,574.12. An issue has been
    raised about the amount being paid less to the family of Jagdish Raj, but that
    has really not been debated before us.
  2. Late Shri 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 herein) seeking compassionate employment on account of
    demise of Shri Jagdish Raj. We may add at the threshold that this
    application was made on 24.1.2004, on which date the son was a minor.
    Needless to say that any such request for compassionate employment had to
    be in terms of the prevalent scheme at that time. There has been some
    confusion as to the scheme applicable and, thus, this Court directed the
    scheme prevalent, on the date of the death, to be placed before this Court for
    consideration, as the High Court appears to have dealt with a scheme which
    was of a subsequent date. The need for this also arose on account of the
    legal position being settled by the judgment of this Court in Canara Bank
    2
    & Anr. v. M. Mahesh Kumar,1
    qua what would be the cut-off date for
    application of such scheme. 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 this judgment 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.
  3. On the relevant scheme being placed before us, what emerges is that
    vide Circular No.56/79, a scheme was brought into force for compassionate
    appointment on 4.4.1979. This is the scheme which was applicable on
    1(2015) 7 SCC 412
    3
    15.1.2004, i.e. on the date of the death of Shri Jagdish Raj. A provision was
    made for compassionate appointment, but subject to the terms & conditions
    of the scheme. Para 7 of the scheme reads as under:
    “7. According to an agreement with the Union, the dependant will
    either be paid gratuity as if the deceased employee has served the full
    term of service, which will be calculated as per gratuity rules on the
    basis of his/her last drawn pay at the time of his/her death or given
    the option for appropriate employment for one dependent subject to
    the rules framed for appointment under compassionate grounds. It is
    therefore, obvious that appointments under compassionate grounds
    will be open only to dependents who do not opt for payment of
    gratuity for the full term of service of the employee who died while
    in service.”
    The aforesaid paragraph, thus, makes it clear that either gratuity or
    compassionate appointment can be availed of by the dependents. The result
    is that if the dependents opted for payment of gratuity for the term of service
    of the employee who died while in service, no compassionate appointment
    could be granted. The admitted position is that the benefit of gratuity was
    availed of by the dependents in the present case.
  4. Another relevant paragraph of the scheme is para 8, which reads as
    under:
    “8. No person or dependent can claim, as a matter of right,
    4
    employment in the Bank under this Scheme and appointments will be
    considered purely at the sole discretion of the Bank. The Bank
    reserves to itself the right to modify, suspend, or withdraw the
    scheme at any time at its sole discretion and the Bank’s decision in
    this regard will be final and cannot be called in question.”
    The aforesaid paragraph makes the consideration for appointment on
    compassionate grounds at the discretion of the Bank, and not as a matter of
    right. This really only emphasizes the settled position of law, discussed
    aforesaid.
  5. A new Scheme was promulgated on 5.11.1985, but para 4 of the
    Scheme clarifies as under:
    “the norms prescribed under scheme for appointment in the Bank of a
    dependent of a confirmed employee who dies while in service
    remains unchanged.”
    Thus, though this may be a new Scheme, it, in effect, continued the
    older Scheme, and that is the reason the terms of that Scheme applied on the
    date of death of Shri Jagdish Raj, on 15.1.2004.
  6. The first communication was addressed by respondent No.1, on
    24.1.2004, to the CMD of the appellant-Bank, seeking compassionate
    appointment for her son, respondent No.2. The aforesaid arrangement, thus
    being applicable even at that time.
    5
  7. A development post the demise, and this application, was a new
    Scheme being brought into force through a Board meeting of the appellantBank w.e.f. 27.4.2004, by way of Circular No. PRNL/09/2004-05, in
    supersession of the previous Scheme. However, the qualification for such
    Scheme was the death of an employee on account of injury sustained while
    performing official duty, with a second condition that the monthly income
    of the family (including terminal benefits, insurance claims, investments,
    etc. as well as pension and spousal income) was less than 60% of the last
    drawn gross salary, net of taxes, of the deceased employee and that the
    application for such compassionate appointment had to be submitted within
    three (3) months from the demise of such deceased employee. There was
    also an option to provide ex gratia compensation with the same second
    qualification as aforesaid, if such application is made within three (3)
    months from the demise of the deceased employee. The Scheme also refers
    to a lumpsum compensation, even where this 60% bar is crossed, and for
    Clerks like Shri Jagdish Raj, the amount specified is Rs.2 lakh.
  8. The appellant-Bank, thus, in response to the application for
    compassionate appointment, sent a communication to respondent No.1,
    6
    asking her to submit a fresh application under the new Scheme within a
    month, i.e., by 9.8.2004. The intent, really, was that only cash
    compensation could be made available. This period, for tendering an
    application seeking cash compensation, was further extended repeatedly, but
    it appears that the respondents did not apply for the same as they appeared
    to be only interested in compassionate appointment.
  9. A Circular No. PRNL/72/2005-06 dated 30.8.2005 was issued
    whereby the benefit of compassionate appointment was denied to a
    dependent of an employee who died in harness. Thus, only cash
    compensation was the benefit which would accrue. The norm of 60%
    eligibility criterion was still made applicable and the application had to be
    preferred within six (6) months from demise. This Scheme came into force
    from 10.8.2005.
  10. Respondent No.1 made available her gross salary declaration of
    Rs.15,912 only on 17.2.2006, which crossed the benchmark of 60% and,
    thus, the respondents were informed vide letters dated 10.5.2006 and
    30.6.2006 that even cash compensation was not available to the family, and
    that there could be no question of compassionate appointment.
    7
  11. It is in the aforesaid circumstances that the respondents filed CWP
    No.17105/2006 on 27.10.2006, seeking consideration of compassionate
    appointment under the 2004 Scheme, upon respondent No.2 attaining age of
    majority. Ex gratia benefits, which were held back, were also sought, along
    with interest.
  12. The High Court of Punjab & Haryana vide impugned order dated
    11.8.2008, granted Rs.2 lakh ex gratia payment, while leaving it open to the
    respondents to make an appropriate application regarding any terminal
    benefits, if not paid. This Rs.2 lakh benefit is in consonance with the
    subsequent Schemes of 2004 and 2005 which had come into force, and
    appears to have been so done more out of sympathy than any other factor.
  13. The appellant-Bank aggrieved by this order filed a Special Leave
    Petition and interim order of stay was granted on 16.1.2009. Leave was
    granted subsequently and the interim order was made absolute.
  14. We have examined the aforesaid factual matrix and the contentions
    raised by learned counsel for the parties.
    8
  15. The question of applicability of any subsequent Scheme really does
    not apply in view of the judgment of this Court in Canara Bank2
    . 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
    4.4.1979, the terms of which continued to be applicable even as per the new
    Scheme of 5.11.1985, 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.
  16. We may also notice that though the subsequent Schemes were not
    applicable, even if benefit was sought to be given of those Schemes, initial
    non-disclosure and subsequent disclosure by respondent No.1, of her
    employment and her emoluments would disentitle her under those Schemes,
    too. Thus, when the appellant was calling upon the respondents to apply
    under the subsequent Schemes, that could have been beneficial to the
    2(supra)
    9
    respondents only if they were entitled to any of the benefits under that
    Scheme. That could not happen because the benchmark provided in those
    subsequent Schemes took the emoluments of respondents beyond the
    prescribed limit, so as to disentitle them from both, compassionate
    employment and ex gratia payment.
  17. We have to keep in mind the basic principles applicable to the cases
    of compassionate employment, i.e., succor being provided at the stage of
    unfortunate demise, coupled with compassionate employment not being an
    alternate method of public employment. If these factors are kept in mind, it
    would be noticed that the respondents had the wherewithal at the relevant
    stage of time, as per the norms, to deal with the unfortunate situation which
    they were faced with. Thus, looked under any Schemes, the respondents
    cannot claim benefit, though, as clarified aforesaid, it is only the relevant
    Scheme prevalent on the date of demise of the employee, which could have
    been considered to be applicable, in view of the judgment of this Court in
    Canara Bank3
    . 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 & Anr. v. Parkash
    3(supra)
    10
    Chand4
    .
  18. We may have sympathy with the respondents about the predicament
    they faced on the demise of Shri Jagdish Raj, but then 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.
  19. We have, thus, no option but to reluctantly set aside the impugned
    order and dismiss the writ petition originally filed by the respondents.
  20. The appeal is accordingly allowed, leaving the parties to bear their
    own costs.
    ………………………………J.
    [Sanjay Kishan Kaul]
    ………………………………J.
    [K.M. Joseph]
    New Delhi.
    January 8, 2020.
    4(2019) 4 SCC 285
    11