Judgment:
ORDER
N.K. Patil, J.
1. Petitioner, questioning the impugned order dated 3rd April 2003 bearing No. PER. HRD. RCT;1785/2003 passed by respondent-Vijaya Bank vide Annexure L, has presented the instant writ petition. Further, petitioner has sought for a direction, directing the respondent to appoint the petitioner as 'Clerk' on compassionate grounds and grant all consequential benefits.
2. The undisputed facts of the case are that, petitioner herein had earlier filed a writ petition in W.P. No. 4121/2002 and the said matter had come up for consideration before this Court on 22nd October 2002 and the same was disposed of with three directions to the respondent-Bank. Copy of the order passed in the said writ petition is herewith produced and marked as Annexure J to this writ petition. The said three directions were, i) While considering the application of the petitioner, the respondent Bank shall consider the relevant scheme which was applicable to the petitioner's case on the date of filing of her application seeking an appointment on compassionate grounds or consider the date of death of her husband, i.e. Sri. P.C. Krishna; ii) While considering the application of petitioner, the respondent Bank shall not take into consideration the amount which is being paid as family pension to the mother of the petitioner; and iii) the respondent Bank shall not look into family pension payable by the respondent Bank to the petitioner while considering the case of petitioner for her appointment on compassionate grounds, in view of the law laid down by this Court, as stated in the said order. Being aggrieved by the said order passed by the learned single Judge of this Court, respondent-Bank herein filed a writ appeal in W.A. No. 140/2003 and the said appeal had come up for consideration before the Division Bench of this Court on 5th April 2005 and the Division Bench of this Court, after hearing, disposed of the said writ appeal on the ground that, the said appeal does not survive for consideration on the ground that, the learned Counsel appearing for respondent-Bank (appellant-Bank therein) had filed a memo stating that, the case of the petitioner herein has been considered and rejected by respondent-Bank by its order dated 3rd April 2003 and produced a copy of the order along with the memo. However, while disposing of the said appeal, the Division Bench observed that, if petitioner is aggrieved by the said order dated 3rd April 2003 passed by respondent-Bank, the remedy was open to her to challenge the said order by instituting separate proceedings. When the said writ appeal was pending adjudication before the Division Bench of this Court, the respondent-Bank has disposed of the application filed by petitioner for appointment on compassionate grounds by its order dated 3rd April 2003 vide Annexure L, rejecting the request of petitioner by taking into account: the deficiencies, demerits and ineligible factors. The respondent-Bank, after assessing the financial condition of the family of the petitioner has analyzed that, the valuation as per the Statement of Assets and Liabilities dated 31st May 1999 filed by petitioner, the net assets value is arrived at Rs. 4,92,132/- and if one calculates, as return of 11% per annum, the family would get Rs. 54,134/- per annum which works out to Rs. 4,511/- per month and on adding the pension of Rs. 3,790/-, the monthly income of the family works out to Rs. 8,301/- and observed that, by considering the net assets and the income arrived as stated, the family cannot be deemed to be in destitution and distress as claimed by the applicant nor it can be termed as without livelihood. Further, taking into account the deficiencies, demerits and ineligible aspects, the application filed by petitioner for appointment on compassionate grounds has been rejected. Being aggrieved by the impugned order passed by respondent-Bank vide Annexure L and seeking appropriate reliefs, as stated supra, petitioner herein felt necessitated to present the instant writ petition on the same cause of action in view of the liberty reserved to her by the Division Bench in the writ appeal.
3. The principal ground urged by learned Counsel appearing for petitioner in the instant writ petition is that, the impugned order at Annexure L passed by respondent -Bank is liable to be rejected at the threshold itself in view of non compliance of the direction issued by this Court dated 22nd October 2002 passed in Writ Petition No. 4121/2002, in toto. Further, he vehemently submitted that, the respondent-Bank in the case of Smt. Bharathi Mohan Saboji, W/o. late Mohan B. Saboji, who is similarly situated as that of petitioner, has appointed the said applicant, Smt. Bharathi Mohan Saboji on compassionate grounds on account of the death of her husband, Sri. Mohan B. Saboji in obedience of the direction issued by the Division Bench of this Court dated 5th April 2005 passed in Writ Appeal No. 139/2003 vide Annexure M. Thereafter, petitioner herein has submitted her detailed representation dated 20th June 2005 vide Annexure N, pointing out that, her case is also similar to that of Smt. Bharathi Mohan Saboji, whose case has been considered by virtue of the direction given by this Court in Writ Appeal and compassionate appointment has been provided to her and requested the competent authority to consider her case also on the same footing for appointment on compassionate grounds, without taking into consideration the terminal benefits payable to the members of the family of a deceased employee.
4. Further, learned Counsel appearing for petitioner has drawn my specific attention to the directions issued by the Division Bench of this Court while disposing of the Writ Appeal No. 139/2003 on 5th April 2005 filed by the very respondent-Bank against Smt. Bharathi Mohan Saboji, wherein it has been specifically stated that, while considering the case of the applicant of the deceased family for appointment on compassionate grounds, the terminal benefits payable to the members of the family of a deceased employee cannot be taken into consideration. Further, in support of views expressed by the Division Bench of this Court in the aforesaid writ appeal, learned Counsel appearing for petitioner placed reliance on the judgment of the Apex Court reported in 2005 SCC (L & S) 590 in the case of Govind Prakash Verma v. Life insurance Corporation of India and Ors. and drew my specific attention to paragraph 6 and submitted that, the terminal benefits received by the widow and the family pension could not be taken into account. Therefore, he submitted that, the impugned order passed by respondent-Bank is liable to be set aside and the prayer sought for by petitioner may be considered by this Court and a direction be issued to respondent-Bank to reconsider the matter afresh and to appoint the petitioner on compassionate grounds on account of the death of her husband, who was an employee of respondent-Bank.
5 Per contra, learned Counsel appearing for respondent-Bank, inter alia, contended and substantiated the impugned order passed by the competent authority of the respondent-Bank, stating that, the respondent-Bank has taken into consideration all the relevant factors for consideration and specifically in view of the interim order granted by the Division Bench of this Court in Writ Appeal No. 140/2003 filed by respondent-Bank against the petitioner herein to process the application of the petitioner under Clause 5.13 of the Scheme for appointment on compassionate grounds, the case of the petitioner has been considered and after thorough evaluation of the entire relevant material available on file, it has been specifically pointed out that, as per the Statement of Assets and Liabilities dated 31st May 1999 filed by petitioner, the net assets value is arrived at Rs. 4,92,132/- and if one calculates, as return of 11% per annum, the family would Rs. 54,134/- per annum which works out to Rs. 4,511/- per month and on adding the pension of Rs. 3,790/-, the monthly income of the family works out to Rs. 8,301/- and therefore, rightly observed that, by considering the net assets and the income arrived as stated, the family cannot be deemed to be in destitution and distress as claimed by the applicant nor it can be termed as without livelihood. Therefore, he submitted that, in the light of the interim direction issued by the Division Bench of this Court as referred in preceding paragraph, the respondent-Bank has considered the case of the petitioner strictly as per Clause 5.13 of the Scheme for Appointment on Compassionate grounds. Further, he submitted that, the contention of the learned Counsel appearing for petitioner that, in an identical case, in the case of Smt. Bharathi Mohan Saboji, her request has been considered and she has been appointed on compassionate grounds by the respondent-Bank is not justifiable for the reason that, the case of said Smt. Bharathi Mohan Saboji cannot be made applicable to the case of petitioner for appointment on compassionate grounds since the financial condition of the petitioner is not on par with that of the said Smt. Bharathi Mohan Saboji. In the instant case, the case of petitioner has been considered under Clause 5.13 and after looking into all aspects, appropriate decision has been taken and no error or illegality as such has been committed by respondent-Bank in passing the impugned order and that, the impugned order is a well considered speaking order passed by respondent by taking into account, all the relevant factors into consideration and the same is in strict consonance with the relevant clause of the Scheme for appointment on compassionate grounds. Therefore, he submitted that, in view of the well settled law laid down by the Apex Court and this Court also, petitioner herein cannot claim the appointment on compassionate grounds as a matter of right, especially when she has failed to make out a case that, the family of the deceased is in distress and not in a position to eek its livelihood and also especially when it is not disputed that, petitioner is getting a substantial net income of 8301/- per month. Therefore, he submitted that, the writ petition filed by petitioner is liable to be dismissed on the ground that, petitioner has not made out any good grounds as such and interference by this Court is uncalled for.
6. Having heard learned Counsel appearing for petitioner, learned Counsel appearing for respondent-Bank and after careful perusal of the material available on record, it is manifest on the face of the impugned order that, the respondent-Bank has committed a grave error of law and material irregularity in proceeding to pass the impugned order contrary to the specific direction issued by this Court dated 20th October 2002 passed in W.P. No. 4121/2002 wherein this Court has specifically issued three directions which reads thus:
i) While considering the application of the petitioner, the respondent Bank shall consider the relevant scheme which was applicable to the petitioner's case on the date of filing of her application seeking an appointment on compassionate grounds or consider the date of death of her husband, i.e. Sri. P.C. Krishna;
ii) While considering the application of petitioner, the respondent Bank shall not take
into consideration the amount which is being paid as family pension to the mother of the petitioner: and
iii) The respondent Bank shall not look into family pension payable by the respondent Bank to the petitioner while considering the case of petitioner for her appointment on compassionate grounds, in view of the law laid down by this Court, as stated in the said order.
(emphasis supplied)
7. Therefore, when there is a specific direction for the respondent-Bank not to take into consideration the terminal benefits payable to the legal representatives of the family of the deceased employee, and the same not being set aside or quashed in the writ appeal filed by respondent-Bank, it is not justifiable on the part of respondent-Bank to reject the case of petitioner again by taking into account the terminal benefits payable to the family of the deceased for assessing the financial condition of the family of the deceased employee. Further, it is significant to note that, respondent-Bank has complied with the direction issued by the Division Bench of this Court in its order dated 5th April 2005 passed in Writ Appeal No. 139/2003 and have given appointment on compassionate grounds in respect of the respondent therein, viz. Smt. Bharathi Mohan Saboji, who is identically situated like the petitioner herein and this fact is not disputed by learned Counsel for respondent-Bank also. The only defence pleaded in the statement of objections and the vehement submission made by learned Counsel for respondent-Bank is that, the case of Smt. Bharathi Mohan Saboji who has been given appointment on compassionate grounds cannot be made applicable to the case of petitioner since the financial condition of the said Smt. Bharathi Mohan Saboji is not on par with that of petitioner in as much as petitioner is getting a substantial financial net income of Rs. 8301/- per month and compared to petitioner, Smt. Bharathi Mohan Saboji is getting lesser net monthly income and therefore, the said case of Smt. Bharathi Mohan Saboji came within the parameter of the relevant clause and therefore, rightly her case has been considered and appointed on compassionate grounds. If the said pleading and the stand of learned Counsel for respondent-Bank is taken into consideration, then considering the case of petitioner and rejecting her case on the ground stated therein is highly contrary to the direction issued by this Court (second direction in particular) in the writ petition filed by her and the said stand of respondent is hard to accept. Further, it is significant to note that, this Court has specifically pointed out and observed in the order dated 5th April 2005 passed in Writ Appeal No. 139/2003 filed by respondent-Bank against Smt. Bharathi Mohan Saboji that, at the time of considering the application for appointment on compassionate grounds, on account of the death of the deceased employee of respondent-Bank, they should not take into account the terminal benefits payable to the members of the family of the deceased employee and the same cannot be taken into consideration for considering the claim of a member of the family of the deceased employee for compassionate appointment. Further, the said view expressed by the Division Bench of this Court is supported by the judgment of the Apex Court in the case of in the case of Govind Prakash Verma v. Life Insurance Corporation of India and Ors. reported in 2005 SCC (L & S) 590, wherein it is specifically pointed out that, the respondent -Bank has wrongly refused to give compassionate appointment to the appellant therein and the inference of gainful employment of the elder brother could not be acted upon and the terminal benefits received by the widow and the family pension could not be taken into account. In the instant case, it can be seen that, the learned Single Judge of this Court, after hearing both sides, has specifically given three directions as extracted above, vide Annexure H to the writ petition. Against the said order also, respondent-Bank has filed the writ appeal. However, the said writ appeal has been disposed of as having become infructuous on the ground that, when the said writ appeal was pending adjudication before the Division Bench of this Court, the respondent -Bank has considered the case of the petitioner and rejected the claim of the petitioner contrary to the direction issued by the learned Single Judge of this Court. However, very conveniently and taking hyper technical grounds, without going into the root cause of the matter and without taking into consideration the notional net income of the family of the deceased as on the date of death of the deceased employee of the respondent-Bank, the request of the petitioner has been rejected. The petitioner has specifically stated in her application that, she has two minor children and that aspect of the matter has not been looked into nor considered by the respondent-Bank and the said writ appeal filed by respondent-Bank has been disposed of as having become infructuous on the ground that, the case of petitioner has been considered and rejected by their order dated 3rd April 2003. If that is so, when the respondent-Bank has considered the case of petitioner, during pendency of the writ appeal filed by them against the petitioner, the respondent-Bank might have substantiated the very stand before the Division Bench of this Court, stating that, the direction of the learned Single Judge of this Court comes in their way for consideration of the case of petitioner. Further, it can be seen that, petitioner has specifically submitted in a sympathetic manner by giving a detailed representation dated 20th June 2005 vide Annexure N, after coming to know of the subsequent development that in case of similarly situated person, viz. Smt. Bharathi Mohan Saboji, appointment has been provided on compassionate grounds, and specifically pleaded that, 'I pray your esteemed institution which is the very embodiment of magnanimity to reconsider my case for appointment on compassionate grounds taking note of the circumstances in which me and my two minor children are living.' This aspect of the matter has not at all been looked into nor considered nor there appears to be any human approach by the competent authority of the respondent-Bank while rejecting the case of petitioner. Except taking hyper technical stand in their objections and rejecting the case of petitioner, the respondent-Bank has not at all complied with the directions issued by the learned Single Judge more particularly, direction No. (ii) issued in the earlier writ petition filed by petitioner. More over, this is not the first time that, the Division Bench of this Court is directing to look into the matter and consider the of applicant for appointment on compassionate grounds afresh. Another Division Bench of this Court also has specifically directed and deprecated the stand taken by respondent-Bank and the relevant aspect for consideration in case of compassionate appointment is that, as on the date of death of the deceased, what was the status of the family of the deceased employee? the source of income and whether the family is able to come out of the sudden financial crisis or not? and various other aspects. These aspects have not been looked into nor considered by respondent-Bank. Therefore, I am of the considered view that, at any stretch of imagination, the impugned order passed by respondent-Bank cannot be sustained and hence, it is liable to be set aside.
8. In the light of the facts and circumstances of the case, as stated above, the writ petition filed by petitioner is disposed of as follows:
i] The writ petition filed by petitioner is allowed in part;
ii] The impugned order dated 3rd April 2003 passed by respondent-Bank bearing No. PER. HRD. RCT; 1785/2003 vide Annexure L, is hereby set aside;
iii] Matter stands remitted back to respondent-Bank to reconsider the matter afresh and to take appropriate decision in accordance with law, in the light of the direction issued by this Court dated 22nd October 2002 passed in W. P. No. 4121/2002 and in the light of the order passed by the respondent-Bank in respect of Smt. Bharathi Mohan Saboji, appointing her on compassionate grounds on account of the death of her husband and also in the light of the representation submitted by petitioner dated 20th June 2005 vide Annexure N and dispose of the same, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this order.