AR. Lakshmanan, J.
1. The writ appeal is preferred against the order dated 22.8.1996 in W.P. No. 18785 of 1992, allowing the writ petition filed by the respondent and quashing the communication dated 28.12.1989 of the Personnel Manager of the appellant bank expressing their inability to keep the offer of appointment open favouring the respondent on her attaining the age of majority, and directing the appellant to provide a suitable job to the respondent in any existing vacancy or any future vacancy as expeditiously as possible.
2. In order to appreciate the controversy between the parties, the following facts require to be noticed. The respondent is the first daughter of late N. Narayana Pillai, who was working in the appellant bank. He died on 29.6.1984 while in service. The respondent's mother, who is working in the Fisheries Department, Government of Tamil Nadu, approached the appellant seeking a job on compassionate basis for the respondent. The respondent's mother was intimated by the appellant by letter dated 14.9.1984 that the respondent's request for compassionate appointment will be kept open for her and that she may renew her application when she attains majority. At the relevant point of time, the respondent was a minor. The above letter was followed by another communication dated 7.11.1985 in and by which the appellant bank wanted to know the name of the deceased employee's daughter to whom appointment had to be offered on attaining the age of majority. The Personnel Manager of the appellant bank sent a communication dated 22.11.1989 to the widow of the deceased employee informing her that on review of the case it was observed that since she is employed in the Fisheries Department of the Government of Tamil Nadu and having independant income, she was not a dependant of the deceased employee. By that communication intimation was solicited as to the nature of employment, name of the employer, monthly income and also the pay certificate from the employer in regard to the wife of the deceased for consideration of the appellant bank on 7.12.1989. The wife of the deceased employee intimated the appellant that she is working in the Ministerial Services in the Department of Fisheries, Government of Tamil Nadu and that she does not own any movable or immovable properties either in her name or in the names of her daughters. It was further mentioned in that letter that neither the deceased employee nor her parents left any property. It was further stated that the emoluments drawn by her were not even sufficient to make both ends meet and that she was living with her old mother, two daughters and widowed aunt. In the light of the above representations, the widow of the deceased employee requested the appellant to provide a job to her daughter as assured in the bank's communication dated 14.9.1984.
3. On 28.12.1989, the appellant bank sent a reply informing the widow of the deceased employee that on a careful consideration of the scheme, the competent authority had expressed its inability to keep the offer of appointment open favouring the daughter of the deceased employee on attaining the age of majority since the widow of the deceased employee is employed and is having independant income and that the minor children of the deceased employee, on the death of the employee, will have to be treated as the dependants of the widow of the deceased. Subsequent representation was made by the widow of the deceased employee and by the communications dated 27.11.1990 and 10.7.1991, the appellant bank expressed its inability for offering appointment to the daughter of the deceased employee on compassionate grounds.
4. Under the above circumstances, the respondent, who is the daughter of the deceased employee, filed W.P. No. 18785 of 1992 for the following relief:
To issue a writ of certiorarified mandamus or any other appropriate writ, order or direction, calling for the records relating to the order HRDD. MPRDS 3779, dated 28.12.1989, and the consequential order in Letter No. HRDD. MPRDS 2937, dated 27.11.1990 and the Letter No. HRDD.MPRDS. 909:1063, dated 10.7.1991, quash the same and direct the respondent to give appointment to the petitioner on compassionate ground in the place of her deceased father immediately.
5. A counter affidavit was filed on behalf of the appellant/bank resisting the claim of the respondent by referring to the scheme for appointment on compassionate basis. It is stated in the counter that the respondent has not made out a prima faice case for the grant of the discretionary relief, that the scheme does not provide for appointment for one irrespective of the economic condition of the family and that the action of the appellant bank in withdrawing its earlier letter dated 14.9.1984 is in order for the reason that the earlier decision was based on imperfect information regarding the employment of the mother of the respondent. Therefore, the appellant bank has rightly rejected the request of the respondent by its letter dated 29.12.1991 stating that since the respondent's mother is employed and is having independant income, the minor children, on the death of the respondent's father, will be treated as her dependant.
6. The respondent filed a reply affidavit denying the allegations contained in the counter-affidavit.
7. Before the learned Judge it was urged on behalf of the respondent that the impugned communication and the orders cannot be sustained, in that, the bank has manifestly erred in denying the claim for appointment of the respondent when the scheme provided for such an appointment, that the appellant bank could not go back on the commitment made by it earlier assuring appointment to the respondent and that therefore, the impugned communication is liable to be set aside. Per contra, learned Counsel for the bank urged that when the mother of the respondent is employed as head clerk in the Department of Fish-cries, having independant income to support the family, the respondent was not entitled for appointment. Pointing out the scheme, the learned Counsel for the bank submitted that the discretion is vested with the bank to consider the claim for appointment the individual circumstances of each case. Shivaraj Patil, J., who heard the writ petition, opined that the respondent/writ petitioner is entitled for appointment on the basis of the assurance contained in the communication dated 14.9.1984 and in the light of the scheme for appointment on compassionate basis. Challenging the said order of the learned Judge, the present writ appeal has been filed by the bank.
8. We have heard Mr. A.L. Somayaji, learned Senior Counsel for the appellant and Mr. R. Gandhi, learned Senior Counsel for the respondent. Both the learned Senior Counsel reiterated the contentions raised before the learned single Judge.
9. In order to appreciate contentions raised by the learned senior counsel on either side, it is necessary to refer to the scheme for appointment of dependants of the deceased employees on compassionate grounds. The expression 'employee' is defined in Clause 2(3) of the scheme. 'Dependent' is defined in Clause 2(f), which means, 'A widow, a son, a daughter, a brother, sister of the deceased employee or any other close relative nominated by the widow on whom she will be wholly dependant.' Under Clause 3 of the scheme, the bank may at its discretion appoint in the bank in any of the posts mentioned in that Clause, the widow or a son or daughter of a deceased employee of the bank or a near relative nominated by the widow on whom she will be wholly dependant and who would give in writing that he or she would look after the family of the deceased employee if the widow or son or daughter or a near relative, as the case may be, fulfils the criteria for appointment under the scheme.
10. Clause 5(i) of the scheme reds as follows:
Request for appointment under the scheme should be received by the bank within one year from the date of death of the employee. In case the dependant is a minor or does not possess suitable minimum qualifications, his/her case can be considered within four years of the death of the employee, to enable him/her to so qualify in terms of age and/or qualification, provided that the dependant has made a request to the bank within a year of the death of the employee.
Clause 5(x) reads as follows:
In case a widow, son or daughter is already in employment whether in the bank or elsewhere, the bank may, at its discretion, consider giving employment to another son or daughter after taking into account the individual circumstances of each case, i.e., the income of the member of the family already employed, the size of the family, the assets and liabilities of the family and other relevant considerations:
Provided that in case there is no other son or daughter eligible for such appointment, the widow or son or daughter employed elsewhere and who is otherwise eligible for appointment in the bank may be given the option of joining the bank.
11. On a combined reading of the various Clauses contained in the scheme, it is manifestly clear that the appointment of the dependants of the deceased employee on compassionate ground is left to the discretion of the appellant bank. No doubt, under Clause 5(x), the appellant may at its description consider giving appointment to another son o: daughter even in a case where the widow, son or daughter is already in the employment whether in the bank or elsewhere after taking into account the income of the member of the family already employed, the size of the family and the assets and liabilities of the family and other relevant considerations. Though the appellant had intimated the mother of the respondent that the appellant bank had acceded to her request to offer appointment to her daughter on attaining majority, the appellant bank had at that time not taken into consideration the relevant facts mentioned Clause 5(x) of the scheme. Therefore, as rightly put forth by Mr. A.L. Somayaji, learned Senior Counsel for the appellant, the bank is justified in reviewing its earlier decision in the light of the provisions of the scheme. While so reviewing, the bank has once again not taken into account the relevant facts set out in Clause 5(x) of the scheme. However, having regard to the view taken by us, that circumstances will not by itself justify the order passed in the writ petition. It is also a moot question as to whether the appellant bank was to keep the offer of appointment open for a period of six years i,e., till the daughter of the deceased employee attains majority. We do not propose to express any opinion in the present case on that aspect of the matter. It is needless to point out that appointment on compassionate ground to a son, daughter or widow is provided to release the economic distress by the unexpected and sudden demise of the sole bread winner of the family. It is on the above basis the scheme providing for appointment on compassionate grounds was held to be valid and not violative of Article 16(2) of the Constitution of India.
12. In the decision reported in Umesh Kumar Nagpal v. State of Haryana : [1994]3SCR893 , the Supreme Court has observed as follows:
The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. Offering compassionate employment as a matter of course irrespective of the financial condition of the family of the deceased and making compassionate appointments in posts above Classes III and IV is legally impermissible.
The Supreme Court has distinguished the case reported in Sushma Gosain v. Union of India : (1990)ILLJ169SC .
13. In the decision reported in State of Haryana v. Naresh Kumar Bali : (1995)IILLJ108SC , the Supreme Court, after referring to the case of Life Insurance Corporation of India v. Asha Ramachandra Ambekar : (1994)IILLJ173SC , held as follows:
What the High Court failed to note is the post of an Inspector is a promotional post. The issuing of a direction to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision-making process and not against the decision itself; and it is no part of the court's duty to exercise the power of the authorities itself. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under Article 142(1) of the Constitution can be of no guidance on the scope of Article226. for these reasons we set aside the judgment under appeal and remit the matter to the High Court for a fresh consideration in the light of what we have indicated above. Accordingly, the appeal is allowed. No costs.
14. In the decision reported in L.I.C. of India v. Asha Ramachandra Ambekar : (1994)IILLJ173SC , the Supreme Court has held as follows:
The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. The courts should endeavour to find out whether a particular case, in which sympathetic considerations are to be weighed, falls within the scope of law. Disregardful of law, however hard the case may be, should never be done. In the very case itself, there are regulations and instructions governing the matter. The court below has not even examined whether a case falls within the scope of relevant statutory provisions. The appellate corporation being a statutory Corporation, is bound by the Life Insurance Corporation Act as well as the statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered.... It is true that there may be pitiable situations but on that score, the statutory provisions cannot be put aside.... To say that the 2nd respondent is at the prime of his life and youth and is aged about 21 years and the dues that are paid by the Life Insurance Corporation to the family are the lawful dues that are earned by the deceased and that therefore, on facts, he would be entitled to appointment on compassionate grounds, is not the correct approach.... Moreover, the High Court should not have directed the appointment on compassionate grounds. It should have merely directed consideration of the claim of the 2nd respondent. No mandamus should be issued directing to do a thing forbidden by law.
In the above case, the Supreme Court has followed its earlier decisions reported in Martin Burn Ltd. v. Corporation of Calcutta : [1966]1SCR543 and Brij Mohan Parihar v. M.P.S.R.T. Corporation : [1987]1SCR369 .
15. In the case reported in State of Haryana v. Umesh Kumar Nagpal (1995) I L.L.J. 798, the Supreme Court has observed as follows:
Appointments for public services can be made strictly on the basis of open invitation of applications and merits. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the Public Authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the posts. With this general rule, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration and taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The object of such compassionate employment is to enable the family of deceased Government servant to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. Mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the Public Authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis, that job is to be offered to the eligible member of the family. Provisions of employment for posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose.... It is legally impermissible to offer a compassionate employment irrespective of the financial conditions of the family of the deceased and sometimes even in posts above Classes III and IV.
16. In the decision reported in Auditor General of India v. G. Ananta Rajeswara Rao : (1994)IILLJ812SC , the Supreme Court has held was follows:
A reading of these various Clauses in the memorandum discloses that the appointment on compassionate grounds would not only be to a son, daughter or widow but also to a near relative which was vague or undefined. A person who dies in harness and whose members of the family need immediate relief of providing appointment to relieve economic distress from the loss of the breadwinner of the family need compassionate treatment. But all possible eventualities have been enumerated to become a rule to avoid regular recruitment. It would appear that these enumerated eventualities would be breeding ground for misuse of appointments on compassionate grounds. Articles. 16(3) to 16(5) provided exceptions Further exception must be on constitutionally valid and permissible grounds. Therefore the High Court is right in holding that the appointment on' grounds of descent clearly violates Article 16(2) of the Constitution. But, however, it is made clear that if the appointments are confined to the son/daughter or widow of the deceased government employee who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread-winner to relieve the economic distress of the members of the family, it is unexceptionable. But in other cases it cannot be a rule to take advantage of the Memorandum to appoint the persons to these posts on the ground of compassion. Accordingly, we allow the appeal in part and hold that the appointment in para 1 of the Memorandum is upheld and that appointment on compassionate ground to a son, daughter or widow to assist the family to relieve economic distress by sudden demise in harness of government employee is valid. It is not on the ground of descent simpliciter, but exceptional circumstance for the ground mentioned. It should be circumscribed with suitable modification by, an appropriate amendment to the Memorandum limiting to relieve the members of the deceased employee who died in harness from economic distress, in other respect Article 16(2) is clearly attracted.
17. It is, thus, clear from the above observations that a right of defendant to get appointment on compassionate basis is not a vested right and discretion is given to the employer to offer appointment on compassionate grounds and such discretion has to be exercised grounds and such discretion has to be exercised fairly and reasonably having regard to the facts and circumstances of each case.
18. In the present case, the widow of the deceased employee immediately after the demise of the employee had expressed her inability to accept the offer of appointment on compassionate ground on the ground that she is employed as head clerk in the Fisheries Department, Government of Tamil Nadu. She did not at that stage plead any financial crisis on account of the sudden demise of her husband. It also requiries to be noticed that the deceased employee was not the sole bread-winner of the family, because, admittedly, the widow is also employed. Therefore, we are of the view, that the respondent, cannot as a matter of right demand appointment on compassionate basis. It is needless to point out that when there is no legally enforceable right, no command in the nature of mandamus can be issued by this Court.
19. For the foregoing reasons, the writ appeal is allowed. Consequently, the order of the learned Judge is set aside and the writ petition shall stand dismissed. We make no order as to costs. C.M.P. No. 15162 of 1996 is dismissed as no longer necessary. However, it is open to the respondent to make appropriate representation to the appellant bank seeking employment on compassionate basis which shall be deemed to be the continuation of her earlier application seeking employment on compassionate grounds. The appellant Bank shall consider such representation in the light of the scheme for appointment of dependants of deceased employee on compassionate grounds, especially, in the light of Clause 5(x) of the scheme and the inability pleaded by the mother, of the applicant to maintain the family and also the fact that the appellant Bank had assured the employment to the applicant on her attaining majority. If all these aspects are kept in view, we are sure, the Bank will not find any difficulty in acceding to the request of the applicant. We accordingly direct the Bank to consider the request on merits, in accordance with law and in the light of the observations made in this order, within three months from the date of the representation made by the respondent.