@JUDGMENTTAG-ORDER
Kalyan Jyoti Sengupta, J.@mdashAfter hearing the learned counsel for the parties and having considered this fact that the petitioner wants employment on compassionate ground on account of death of his father in harness. Petitioner''s father died in harness on 1st July, 2004, and petitioner applied for compassionate ground as it could be found from counter-affidavit on 10th May, 2005. There is no dispute with regard to this fact. Undisputed fact is death of the petitioner''s father. There was scheme providing compassionate appointment. When application was made for compassionate appointment, scheme for compassionate appointment was in force. In course of time scheme for compassionate appointment is withdrawn. The petitioner''s case was not processed nor considered in terms of this scheme rather he was advised by communication in October, 2005 to apply under new scheme. In August, 2005, new scheme came into existence in place of old scheme. The new scheme provides for lumpsum payment in lieu of appointment in a fit case. Learned counsel for the petitioner submits that new scheme will not have any application as the application was made prior thereto and this should be governed by the old scheme. Learned counsel for the respondents, on the other hand, submits that the petitioner''s case has to be considered in terms of Clause 14 of the new Scheme which came into force on and from 4th August, 2005 as it was pending case on the date of commencement of new case. For sake of convenience, Clause 14 of the new Scheme is set out as follows:
DATE OF EFFECT OF THE SCHEME AND DISPOSAL OF PENDING APPLICATION:
The Scheme will come into force with effect from the date it is approved by the Executive Committee of the Central Board. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Executive Committee of the Central Board will be dealt with in accordance with the new Scheme for payment of ex-gratia lump sum amount provided they fulfill all the terms and conditions of this Scheme.
2. Learned counsel for the petitioner also draws my attention to a Supreme Court judgment in case of
3. Having heard the learned counsel for the parties, the question in this case which scheme should be given effect to whether old or new one.
4. In order to approach this Court, the aggrieved person must have justifiable right. In other words, legally enforceable right unless he does not have, he cannot get any relief.
5. Therefore, the petitioner here is to establish either of the two cases. The appointment on compassionate ground is not a matter of right as words ''compassionate'' itself makes the position clear. It is a question of mercy opposed to matter of right as it is recognized by the Supreme Court time and again that compassionate appointment is an exception to the Rule of lawful recruitment process.
6. The respondents have created a right for extending benefit to the person of the family of the deceased employee, and thus petitioner has to find the right within the provision of the Scheme.
7. Factually on the date of making application, the scheme providing for employment was in force but unfortunately under Clause 14 of the said new Scheme this has been given retrospective effect. Meaning thereby, the pending application has to be dealt with under the old scheme. The employer has every right to frame a new scheme giving prospective or retrospective effect. By virtue of Clause 15, the right of employment has been taken away. I am of the view, the petitioner has to be governed under Clause 14 which remained unchanged before me. The Supreme Court judgment has been placed before me and I find the Supreme Court has turned down to grant such relief on identical fact. But the decision rendered by me on the point on this particular fact. It would not be fair on my part unless I notice the ratio in case of compassionate appointment, decided by the Supreme Court. The Supreme Court in the case of Raj Kumar (supra) has held in paragraph 8 as follows:--
It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the Rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.
8. Therefore, my view is having the foundation of above ratio. Accordingly, I direct respondents shall forthwith process and consider the petitioner''s claim on the basis of new scheme. I failed to understand why this was not processed in the meantime when Clause 14 unequivocally provides so. This must be done within a period of six weeks from the date of receipt of certified copy of this order. The payment claimed may be paid within two months from the date of taking decision with interest @ 9% p.a. from October, 2005 till the date of passing of the order.
9. As I grant interest @ 9% p.a., learned counsel for the respondents submits that bank cannot pay any interest as the petitioner was at fault and the application was not made in prescribed form as per the new scheme. I am of the view that fresh application under the new scheme is required when no such application was made prior to new scheme came into force. Clause 15 is very clear that in case of pending application, no prescribed form under the new scheme is required. Prescribed form is required under Clause 11 in a case when the application is made after introduction of new scheme. The bank should have automatically dealt with the matter, the moment the new scheme came into force. In my view writing of letter dated 4th October, 2005 and passing order dated 18th November, 2005 are arbitrary and whimsical action. The writ petition is allowed. Cost of this petition is assessed at Rs. 500/- and to be paid by the Bank to the petitioner.
