Mehroz K. Pathan, J.

1. The petitioner has filed the present petition seeking the following reliefs:-

                   “A) This writ petition may kindly be allowed.

                   B) By way of issuing an appropriate order or directions to the respondent No. (1) & (2) to decide the application dt. 01.11.2013 for issuing appointment order on compassionate or any other appropriate ground to the Physically Handicapped and Disabled son of the petitioner.

                   BB) By issuing appropriate orders or directions the impugned letter dated 16.01.2017 issued by the Respondent – Bank annexed at Exhibit ‘M’ may kindly be quashed and set aside and further the Respondent – Bank may be directed to consider the applications of the petitioner and issue appointment order in favour of the son of the petitioner namely Vaibhav Pramod Sagalgile on compassionate ground with the Respondent – Bank and for that purpose issue necessary orders;

                   DD) Pending hearing and final disposal of this Writ Petition direct the Respondent – bank to consider the applications of the petitioner and issue appointment order in favour of the son of the petitioner namely Vaibhav Pramod Sagalgile on compassionate ground with the Respondent – Bank and for that purpose issue necessary orders.”

2. The petitioner joined the services of the respondent–Canara Bank as a Clerk vide appointment order dated 01.06.1989, and his service record remained satisfactory. He was promoted to the post of Officer in Junior Management Grade Scale–I on 01.03.2008. The petitioner started suffering from serious health problems from the year 2000 and underwent major surgery for Nephrotic Syndrome in the year 2001. Since then, he has been under continuous medical treatment for the said ailment and was compelled to avail medical leave and all other eligible leave due to his serious health condition. Due to prolonged illness and irregular attendance, the superior officers of the respondent–Bank advised the petitioner either to attend duties regularly or to opt for voluntary retirement from service. Although about 14 years of service were still remaining before his date of superannuation, the petitioner was left with no alternative but to seek voluntary retirement on the ground of poor health of self and his elder son. Accordingly, the petitioner submitted an application dated 22.02.2013 seeking voluntary retirement, along with necessary medical documents evidencing his medical condition, which was accepted and made effective from 01.06.2013. The petitioner’s son, Vaibhav, is a physically handicapped and disabled person and has been undergoing medical treatment for a prolonged period. The petitioner was required to incur substantial expenditure towards the medical treatment of his son. Accordingly, the petitioner also submitted medical records pertaining to his son to demonstrate the extent of his disability and incapacitation.

3. Be that as it may, the respondent–Bank accepted the petitioner’s request for voluntary retirement, and the petitioner stood retired from service with effect from 20.07.2013. Even prior to submitting the application for voluntary retirement, the petitioner had made several representations to the respondent–Bank seeking appointment of his son on compassionate grounds. The respondent– Bank, however, expressed its inability to accede to the said request by communication dated 14.12.2013, stating that appointments on compassionate grounds had been discontinued with effect from January 2004. Thereafter, the petitioner submitted a further application dated 09.04.2014, pointing out that he had been compelled to seek voluntary retirement much before completion of his remaining 14 years of service, and therefore his physically disabled son deserved to be considered for appointment on compassionate grounds to ensure a regular source of income for the family. It was specifically stated that the family was facing acute financial hardship after the petitioner’s voluntary retirement, particularly in view of the substantial medical expenses incurred for the treatment of his disabled son. The respondent–Bank, by communication dated 29.04.2014, rejected the said application on the ground that appointments could be made only through direct recruitment and not on compassionate grounds.

4. The respondent–Bank thereafter introduced a scheme for appointment on compassionate grounds with effect from 05.08.2014, which provided for such appointment in cases where a regular employee retired on medical grounds due to incapacitation before attaining the age of 55 years, subject to certification by a duly constituted Medical Board of a Government Medical College nominated by the Bank. In view of the aforesaid scheme, the petitioner submitted an application dated 07.04.2015 seeking compassionate appointment in favour of his son Vaibhav, contending that he had sought voluntary retirement on medical grounds and that the family was struggling to make both ends meet. Similarly, the petitioner’s son also submitted applications dated 07.01.2015, 08.07.2015 and 03.11.2015, seeking appointment on compassionate grounds with the respondent–Bank, along with his disability certificate. The petitioner further submitted an application dated 20.10.2015, requesting that he be referred for medical examination by the panel of doctors or the Civil Surgeon, as contemplated under the scheme. However, by communication dated 16.01.2017, the respondent–Bank informed the petitioner’s son about the rejection of the application on the following grounds:

                   (i) That the scheme for appointment on compassionate grounds is applicable with effect from 05.08.2014, whereas the petitioner’s service came to an end on 20.07.2013;

                   (ii) And that mere resignation or voluntary retirement on medical grounds is not sufficient for consideration of compassionate appointment unless the employee had submitted a medical incapacitation certificate at the time of submitting the resignation or application for voluntary retirement.

5. In view of the rejection of the claim by communication dated 16.01.2017, the petitioner sought amendment of the writ petition and prayed for quashing and setting aside of the said communication. Accordingly, by order dated 03.10.2017 (or relevant date as per record), this Court was pleased to grant leave to carry out the amendment and take the impugned communication on record. The Court also noted that the petitioner’s request for compassionate appointment in favour of his physically handicapped son had been declined by the respondent–Bank vide communication dated 16.01.2017.

6. The petitioner has raised several grounds in support of his claim for consideration of appointment of his disabled son on compassionate grounds. It is submitted that Clause 24 of the relevant scheme provides that applications which were pending as on 04.08.2014, or applications submitted on or before the said date, are required to be dealt with in accordance with the earlier governing schemes/circulars. The petitioner asserts that he had submitted several applications seeking compassionate appointment both before and after 04.08.2014, which were pending for consideration with the respondent–Bank, and therefore his case squarely falls within the protective ambit of Clause 24 of the scheme.

7. The reply dated 29.04.2014, annexed to the petition as Exhibit ‘J’, itself demonstrates that the petitioner had sought consideration for compassionate appointment prior to the cut-off date of 04.08.2014, as contemplated under Clause 19.24 (Clause 24) of the Scheme of 2015. The said clause cannot be interpreted in a manner so as to exclude or defeat the claim of the petitioner’s son for compassionate consideration, particularly when the claim arises on account of the petitioner’s medical incapacitation and was pending consideration.

8. It is further submitted by the learned counsel for the petitioner that the impugned communication dated 16.01.2017 itself reveals that one of the grounds for rejection of the application is that the scheme is applicable with effect from 05.08.2014, whereas the petitioner had obtained voluntary retirement and his services stood terminated with effect from 20.07.2013. However, it is contended that the petitioner’s application dated 09.04.2014, which was admittedly submitted prior to the cut-off date of 04.08.2014, has been deliberately ignored, with a view to oust the petitioner’s legitimate claim. It is therefore submitted that the impugned communication suffers from arbitrariness and is liable to be quashed and set aside.

9. Another ground urged by the learned counsel for the petitioner pertains to the financial condition of the petitioner’s family. It is submitted that the petitioner was compelled to retire from service nearly 14 years prior to his actual date of superannuation and is required to continuously bear the medical expenses of his physically disabled son. These circumstances have resulted in severe financial hardship to the family. It is contended that the petitioner’s claim has been rejected on purely technical grounds and, therefore, the petitioner’s son is entitled either to appointment on compassionate grounds or, in the alternative, to lump-sum ex-gratia compensation in terms of HO Circular No. 35 of 2005 dated 14.02.2005 and Circular No. 262 of 2007 dated 24.09.2007, which provide for payment of ex- gratia compensation in lieu of compassionate appointment in cases where employees had voluntarily retired on medical grounds prior to 05.08.2014.

10. It is further submitted by the learned counsel for the petitioner that the aforesaid Circular dated 14.02.2005 was issued by the respondent–Bank as a model scheme for payment of monetary assistance in lieu of appointment on compassionate grounds, with the approval of the Ministry of Finance, Government of India, with a view to strike a balance between the Bank’s organisational objectives and its social obligation towards the families of employees who had either died in harness or had voluntarily retired on account of medical incapacitation, in lieu of compassionate appointment. The said circular provides that ex-gratia payment shall be admissible where the resignation or voluntary retirement has been approved by the competent authority, as stipulated under Clause 5 thereof. In the present case, the petitioner’s premature retirement on account of medical incapacitation having been duly approved by the competent authority, the petitioner is entitled to ex-gratia payment even under the Circular dated 14.02.2005.

11. It is further submitted by the learned counsel for the petitioner that, in furtherance of the scheme framed in accordance with the guidelines issued by the Indian Banks’ Association, the respondent– Canara Bank adopted an additional scheme by issuing Circular No. 262 of 2007 dated 24.09.2007, providing for lump-sum ex-gratia payment in lieu of appointment on compassionate grounds. The said circular also extended the benefit of lump-sum ex-gratia compensation to employees who sought premature retirement on account of incapacitation before attaining the age of 55 years, in lieu of compassionate appointment. It is therefore submitted that even under the Circular dated 24.09.2007, the petitioner is entitled to the alternative relief of lump-sum ex-gratia payment, in lieu of compassionate appointment of his son, in the event it is held that the petitioner is not entitled to compassionate appointment under the Scheme of 2015.

12. The learned counsel for the petitioner places reliance on the judgment of the Hon’ble Supreme Court in Canara Bank & Anr. v. M. Mahesh Kumar (AIR 2015 SC 2411), wherein the Hon’ble Supreme Court held that the stand of the Bank that the claim could not be considered merely on account of passage of time was untenable and accordingly upheld the direction issued by the High Court directing the Bank to reconsider the claim of the applicant. The Hon’ble Supreme Court further held that the contention of the Bank that the claimant’s family was receiving family pension and terminal benefits would be of no consequence while considering a claim for compassionate appointment.

13. Learned counsel for the petitioner, Mr. Tambe, further relied upon the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy v. State of Orissa and Others (2022 SCC OnLine 684), wherein the Court observed:

                   “16. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications.”

14. Learned counsel for the petitioner also relied upon the judgment of the Hon’ble Supreme Court in Civil Appeal No. 7489 of 2023 arising out of SLP (Civil) No. 3309 of 2023, in the case of Govind Janardan Gaikwad v. State of Maharashtra, wherein the Court noted:

                   It is very unfortunate that the concerned respondents raised a contention before the High Court that as the family of the appellant has survived for 15 years after the death of the appellant’s father, he is not entitled to compassionate appointment. In our view, considering the concept of Welfare State, the respondent Nos. 3 and 5 ought not to have raised such a contention, especially when the appellant is making both ends meet by working as a labourer. Thus, none of the four grounds mentioned above are available to the respondent Nos. 3 and 5.”

SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER

15. Thus, it is the submission of the learned counsel for the petitioner that the Bank had accepted the petitioner’s application for voluntary retirement on the ground of medical incapacity/poor health without insisting upon any medical certificate. This, he contends, indicates that the respondent Bank itself found the petitioner’s case worthy of consideration and did not require verification of his medical status. It is further argued that the 2015 scheme provides coverage for employees retiring on medical grounds due to incapacitation with effect from 05.08.2014, and that pending applications as on 04.08.2014, or applications submitted after 05.08.2014 with respect to death or eligible circumstances prior to 04.08.2014, were to be examined in accordance with the circulars dated 14.02.2005 and 24.09.2007. Even in accordance with Clause 24 of the scheme dated 20.03.2015, the petitioner is entitled to a lumpsum exgratia payment in lieu of compassionate appointment for his son. Therefore, the impugned communication dated 16.01.2017 is illegal and liable to be quashed and set aside.

16. It is further submitted by the learned counsel for the petitioner that the incapacitation certificate of the petitioner cannot be used as a ground against him, as the petitioner’s application for voluntary retirement on account of poor health was accepted by the Bank without requiring any medical certificate. The petitioner had also requested the respondent Bank to refer his case to the panel of doctors; however, the Bank did not do so and accepted his application outright. Therefore, the petitioner cannot be denied relief merely on the ground of inaction by the respondent Bank in referring his case to the Medical Board or Civil Surgeon as per the panel of doctors of the Bank.

SUBMISSIONS OF LEARNED COUNSEL FOR RESPONDENT – BANK

17. Learned counsel for the respondent Bank, Mr. Sikchi, vehemently opposes the present petition on the ground that the Bank formulated the scheme for compassionate appointment on 20.03.2015, to be effective from 05.08.2014, and no such scheme existed prior to 2015. As per Clause 23 of the 2015 scheme, applications filed by dependents after 05.08.2014 are eligible for compassionate appointment only if the employee sought voluntary retirement on medical grounds due to incapacitation before reaching the age of 55 years, and such incapacitation is to be certified by the Medical Board of a Government Medical College nominated by the Bank. Accordingly, the petitioner should have been examined himself by the Medical Board to claim compassionate appointment of his son. In the absence of any medical certificate issued by the competent board or hospital, the petitioner cannot claim benefits under the 2015 scheme.

18. It is further submitted by the learned counsel for Respondent No. 2 – Bank that appointment on compassionate grounds or ex- gratia lumpsum payment in view of voluntary retirement cannot be granted merely at the request of the employee. The financial condition of the employee’s family is a primary consideration, and such benefits are to be granted only if the family is found to be indigent and genuinely in need of financial assistance under the scheme. The petitioner’s family, however, has been granted all retiral benefits, including gratuity, provident fund, pension mutation, and a monthly pension of Rs. 36,480 at the time of retirement. Therefore, the petitioner’s family has a sufficient source of income and cannot be considered indigent or in need of financial support from the respondent Bank.

19. It is vehemently submitted by the respondent Bank that Clause 13 of the scheme of 2015 clarifies that “near disability” does not equate to “incapacitation,” and the mere acceptance of an employee’s resignation on account of incapacitation does not automatically entitle the petitioner to consideration for compassionate appointment. The certificate issued by the competent authority or the medical board is mandatory for such consideration under the scheme.

20. It is lastly submitted by the learned counsel for the respondent Bank that Clause 24 of the Scheme of 2015 provides that applications for compassionate appointment filed before 05.08.2014 shall be governed in terms of Circular No. 35 of 2005, dated 14.02.2005, and Circular No. 262 of 2007, dated 24.09.2007. Both these circulars relate only to the payment of ex gratia lumpsum amounts in lieu of compassionate appointment and do not provide any scheme for actual appointment on compassionate grounds for applications filed prior to the issuance of the Scheme of 2015. It is further submitted that although the circular dated 24.09.2007 provided for compassionate appointment, the same was allowed only in the case of death of an employee and not in cases of retirement on medical grounds. Voluntary retirement due to poor health cannot be equated with retirement on medical incapacitation, and therefore, the petitioner cannot be granted the reliefs prayed for, i.e., the appointment of his son on compassionate grounds, nor is he entitled to any ex gratia lumpsum amount in lieu of such appointment.

21. It is vehemently submitted by the learned counsel for the respondent Bank that no post facto sanction by the Medical Board regarding the petitioner’s medical incapacitation can be permitted, as the petitioner retired on 20.07.2013, well before the introduction of the Scheme of 2015. Consequently, there is no merit in the present petition, and it is liable to be dismissed.

22. The learned counsel for the respondent Bank further emphasized that the Courts cannot incorporate provisions into the Bank’s policy, as any policy regarding compassionate appointment is governed solely by the Bank’s scheme. Any deviation from the scheme would result in unfairness and injustice to other individuals who have been subject to the same conditions. The present petition was filed in 2014, and the petitioner’s family has survived without financial assistance, including ex gratia, from the respondent Bank, indicating that the family is not in genuine need of such assistance. Furthermore, in the absence of any medical certification of the petitioner from the panel of doctors, the petitioner is not entitled to ex gratia payment, as no timely application for the same was submitted by the petitioner.

CONSIDERATION

23. We have heard learned counsel for the petitioner, Mr. Tambe, and learned counsel for the respondent Bank, Mr. Sikchi, at length. We have also examined the documents filed along with the present petition, the reply filed by the respondent Bank, and the judgments relied upon by both parties.

24. A perusal of the impugned communication dated 16.01.2017 reveals that the respondent Bank rejected the petitioner’s claim on two grounds:

                   i. The scheme for appointment on compassionate grounds is applicable with effect from 05.08.2014, whereas Mr. Pramod S/o. Govind Sagalgile obtained VRS and ceased service on 20.07.2013. The scheme is applicable only to employees/officers who retired on medical grounds on or after 05.08.2014.

                   ii. Mere resignation or voluntary retirement on medical grounds is not sufficient to consider appointment on compassionate grounds. A medical incapacitation certificate must be submitted at the time of submitting the resignation/VRS application. In the petitioner’s case, he had taken VRS on medical grounds without submitting such a certificate at the relevant time.

25. The voluntary VRS application of the petitioner was accepted without requiring any medical examination, even though he sought voluntary retirement due to his own poor health and the medical condition of his son. Consequently, it cannot be contended that the petitioner was not issued any certificate of medical incapacitation. Moreover, Clause B(iii) of the circular dated 24.09.2007 does not require submission of a medical certificate from any competent authority or panel of doctors for entitlement to exgratia payment in lieu of compassionate appointment.

26. A perusal of Clause 24 of the Scheme of 2015, relied upon by both the respondent Bank and the petitioner, provides that the pending applications as on 04.08.2014, or applications submitted on or before 05.08.2014, with respect to death or other eligible circumstances, shall continue to be examined in terms of HO Circular No. 35 of 2005 dated 14.02.2005 and Circular No. 262 of 2007 dated 24.09.2007.

27. Taking into consideration the aforesaid clause, it is evident that the petitioner’s application filed on 09.04.2014 ought to have been considered under the provisions of the aforementioned circulars dated 14.02.2005 and 24.09.2007. The circular dated 24.09.2007, provides for payment of monetary assistance in lieu of appointment on compassionate grounds. The objective of the circular is to strike a balance between the business objectives of the Bank and the social obligations towards family members of employees who either died in harness or voluntarily resigned due to total medical incapacitation. The circular dated 14.02.2005 provides comprehensive coverage for consideration, laying down the eligibility criteria, methods of calculation, and time limits for claiming ex gratia. The time limit for claiming ex gratia is six months from the date of death of the employee or the date of resignation/voluntary retirement.

28. The circular dated 24.09.2007 also provided for various considerations, including the eligibility criteria for appointment on compassionate grounds and the scheme for payment of a lump-sum ex gratia in lieu of such appointment. It specifically held that the terms and conditions of the earlier circular dated 14.02.2005 remained unchanged. Further, the 24.09.2007 circular provided for payment of ex gratia to employees seeking premature retirement due to incapacitation before reaching the age of 55 years.

29. The petitioner retired in the year 2013, well before attaining the age of 55 years, and his retirement was accepted with effect from 20.07.2013. The application for voluntary retirement was accepted by the respondent Bank without insisting on any medical certificate. It can thus be inferred that the Bank found the petitioner’s case genuine, as it neither sought any certificate of incapacitation nor referred the petitioner to a medical board to verify his medical condition.

30. The circular of 2007 further provided that the eligibility criteria suggested by the Indian Banks’ Association for dealing with cases under the scheme for payment of lump-sum ex gratia would be formulated as under:

B SCHEME FOR PAYMENT OF LUMPSUM EXGRATIA AMOUNT IN LIEU OF APPOINTMENT ON COMPASSIONATE GROUNDS – SCHEME IN BRIEF

                   (i) Employee dying in harness (other than due to injury sustained while performing official duty as a result of violence, terrorism, robbery or dacoity);

                   (ii) Employee dying due to injury sustained while performing official duty within or outside office premises (other than due to violence, terrorism, robbery or dacoity and excluding travel from residence to place of work and back);

                   (iii) Employee seeking premature retirement, due to incapacitation, before reaching the age of 55 years.

31. Clause (iii) of the aforesaid scheme of 2007 provides that any employee seeking pre-retirement due to incapacitation before reaching the age of 55 years is entitled to receive a lump-sum ex gratia amount in lieu of appointment on compassionate grounds. The 2007 scheme, as a preface, states that it is a revised modular scheme on the subject of payment of lump-sum ex gratia in lieu of appointment on compassionate grounds.

32. The eligibility criteria mentioned in Clause (iii), as quoted hereinabove, show that there is no requirement for medical certification or other formalities, unlike the 2005 scheme, particularly Clause 5, which emphasizes submission of medical grounds/incapacitation. The 2007 scheme provides for premature retirement due to incapacitation but does not mandate any certification from a panel of doctors.

33. It was, therefore, incumbent upon the respondent Bank to consider the petitioner’s case and process the application for compassionate appointment in accordance with the 2007 circular, i.e., circular dated 24.09.2007 as the circular was holding the field, when petitioners sought retirement in the year 2013.

34. As discussed above, the scheme of 2007 does not require any certification by a panel of doctors. Therefore, the insistence upon submission of a medical certificate by the respondent Bank, as reflected in the impugned communication dated 16.01.2017, is arbitrary, lacks legal basis, and is liable to be set aside.

35. It is further pertinent to note that the Hon’ble Supreme Court in the judgment of Canara Bank & Anr. v. M. Mahesh Kumar (supra) held that the plea of the Bank that a claim cannot be considered due to the passage of time is not tenable. The Court also observed that the fact that the claimant’s family is receiving family pension and other retiral benefits is of no consequence in determining entitlement to compassionate appointment.

36. Respondent Bank, therefore, ought to have referred to Clause 24 of the 2015 scheme, which provides that applications filed after 05.08.2014 with respect to death or other eligible circumstances prior to 04.08.2014 are to be governed by the circulars of 2005 and 2007. At the cost of repetition, it is pertinent to note that the 2007 circular did not impose any requirement for examination of incapacitation by a panel of doctors or any such certification. Consequently, the rejection of the petitioner’s claim for compassionate appointment could have been appropriately addressed by granting a lumpsum exgratia amount in lieu of compassionate appointment, in respect of the application submitted by the petitioner on 09.04.2014, which was initially rejected by the reply dated 29.04.2014 and subsequently by impugned communication dated 16.01.2017. The grounds taken by Respondent Bank to reject the petitioner’s claim appear to be a deliberate attempt to deprive the petitioner of his rightful entitlement under the 2007 circular.

37. It is further pertinent to note that the petitioner’s application for voluntary retirement clearly demonstrates that he sought retirement on account of his own poor health as well as the medical condition of his son, who is physically handicapped and dependent upon him. The petitioner himself was suffering from serious health issues and was required to undergo treatment while also bearing substantial medical expenses for his son. In such circumstances, the petitioner is entitled to the exgratia amount in terms of Clause B(iii) of the circular dated 24.09.2007.

38. Hence, the following order:-

ORDER

(a) The Writ Petition is allowed.

(b) The impugned communication dated 16.01.2017 issued by the Respondent Bank is hereby quashed and set aside.

(c) The Respondent Bank is directed to consider the application of the petitioner for appointment of his son on compassionate ground and in lieu thereof grant the lumpsum exgratia payment, in accordance with Clause B (iii) of the circular dated 24.09.2007.

(d) The Bank shall complete the process of sanctioning and disbursing the exgratia amount within a period of 12 weeks from the date of passing of the order.