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 appellant- Bank, 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 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 & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412 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 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. ;