Can Compassionate Appointment Be Given Based On Scheme That Came Into Effect After Employee’s Death? Allahabad HC Refers To Larger Bench

Whether compassionate appointment can be given based on scheme that came into effect after employee’s death? The Allahabad High Court has referred this question to a larger bench.

The Court was dealing with a batch of special appeals against the orders of different dates passed by the Single Judges directing the Banks to consider the application of the contesting respondents for appointment under Dying-in-Harness Scheme.

A Division Bench comprising Justice Manoj Kumar Gupta and Justice Donadi Ramesh said, “With due deference, we are unable to agree to the view taken in Jitendra (supra). As the said judgment is by Co-ordinate Bench of equal strength, judicial propriety demand that the question be settled by a Larger Bench. Accordingly, we refer the following question for being answered by a Larger Bench: - “Whether the interpretation given to Clause 8 of the Scheme dated 10.5.2019 in Chairman, Baroda U.P. Bank (Erstwhile Baroda U.P. Gramin Bank), Gorakhpur and Others vs. Jitendra and Others and analogous Schemes, is sustainable in law, in view of judgment of Supreme Court in Secretary to Government Department of Education (Primary) and Others vs. Bheemesh alias Bheemappa and other judgments?”

Advocate Sachin Mishra appeared on behalf of the appellant while Advocate Ajay Kumar Mishra appeared on behalf of the respondent.

All the appeals involved interpretation of certain Clauses of the Scheme so as to find out whether applications filed for compassionate appointment by dependents of a deceased employee of the Bank within a timespan of five years prior to the date of enforcement of the Scheme, would be covered under the Scheme or not. Consequently, all the appeals were heard together. The husband of the respondent died in 2018 while in harness and at the relevant time, there was no scheme for appointment on compassionate grounds. The Scheme came into force on March 1, 2019.

The Bank vide a Communication dated December 7, 2021 informed the respondent that it would not be possible to consider her request for compassionate appointment as her husband had died before the commencement of the Scheme. The respondent challenged the said order in the writ petition which was allowed by the order impugned herein. The Single Judge took the view that under Clause 8 of the Scheme, application for compassionate appointment could be filed within five years of death of an employee and therefore even if death had taken place before commencement of the Scheme, but application was filed within five years from the date of death, it would be covered under the Scheme.

The High Court in the above regard observed, “… there was no Scheme in force for appointment of the dependent family member on compassionate basis. The Scheme for compassionate appointment came into effect from 1.3.2019. As the Scheme confers right to be considered for compassionate appointment for the first time after it was enforced, it definitely confers new and better rights then what were available at the time of death of the employee.”

The Court further said that compassionate appointment is never a part of service condition of any employee or a vested right and that it cannot be given in absence of rules or regulations issued.

“The right comes into existence for the first time upon death of the employee in harness. If there is no scheme for compassionate appointment applicable on date of death, then no such right accrues except in cases where a future scheme unequivocally declares that it would apply retrospectively”, noted the Court.

Accordingly, the High Court referred the issue to a larger bench.

Cause Title- Authorized Officer, Prathama UP Bank v. Manjeet Kaur (Neutral Citation: 2023:AHC:218108-DB)

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