SUBMISSION COMPASSIONATE APPOINTMENTS IN BANKS

Transcription

1 SUBMISSION TO INDIAN BANKS ASSOCIATION ON COMPASSIONATE APPOINTMENTS IN BANKS BY UNITED FORUM OF BANK UNIONS 1

2 Contents 1. MOU dated Government Guidelines Government Modification Banking Service Commission Act-1975/ Supreme Court- Nagpal Case Government Guidelines IBA Guidelines Implementation of Guidelines in Banks. 9. Change in attitude of managements 10. Government advice in New Model Scheme Financial Compensation Scheme. 13. Implementation of Scheme by Banks. 14. UFBU Strike Call on Conciliation by CLC. 16. Discussions with IBA. 17. IBA Managing Committee Decisions. 18. UFBU Strike Call March, Meeting with Prime Minister Meeting with Finance Minister

3 21. MOU with IBA on Revised Government Guidelines June, IBA revised scheme July, UFBU letter to IBA UFBU s Strike Call UFBU s Strike Call UFBU s Strike Call 25/ Meeting with Finance Minister MOU with IBA Discussions with IBA 18/ Parliamentary Standing Committee on Compassionate Appointments. 32. Supreme Court Judgement SAIL-May, Other Judgements. 34. Compassionate Appointments in Central Government. 35. Compassionate appointments in RBI 36. Compassionate appointments in LIC. 37. Compassionate appointment by State Governments. 38. Compassionate appointment in Railways. 39. Compassionate appointment in Public Sector Undertakings. 40. Compassionate appointment in Private Banks. 3

4 41. Data on No. of deaths in Banks. 42. Justifications for our Demands. 43. UFBU s Suggestions. ANNEXURES 1. Supreme Court Judgement in U K Nagpal Vs Haryana Government dt Supreme Court Judgement in Balbir Kaur Vs. SAIL dt Report of the Parliamentary Standing Committee on Compassionate Appointments September, Compassionate appointments by Central Government 5. Compassionate Appointments by Govt. of Tamilnadu 6. Compassionate Appointments by Govt. of Madhya Pradesh 7. Compassionate Appointment Scheme in RBI 8. Compassionate Appointment Scheme in LIC 9. Compassionate Appointments in Railways 10. Some Supreme Court judgements relating to Compassionate Appointments 11. Govt/IBA s model scheme

5 UNITED FORUM OF BANK UNIONS (AIBEA-AIBOC-NCBE-AIBOA-BEFI-INBEF-INBOC-NOBW-NOBO) C/o. Singapore Plaza, 3 rd Floor, 164, Linghi Chetty Street, Chennai Tel. No. : , , Fax: , E Mail: chv.aibea@gmail.com, ufbu2007@gmail.com To The Chairman, Indian Banks Association, WTC Buildings, 6 th Floor, Centre I Building, Cuffe Parade, Mumbai March 3, 2008 Dear Sir, Sub: Compassionate Appointments in Banks This has reference to the minutes of understandings dated , signed between IBA and UFBU based on which our strike action and other agitational programmes were not proceeded with. Under this MoU, regarding Compassionate Appointment, it has been minutised as under: As regards restoration of Compassionate appointment scheme, the IBA requested UFBU to suggest improvement, modifications, etc to the scheme to enable IBA to refer the matter to the Government for further consideration Accordingly, further to the discussions held on this issue between us on & , we submit herein our detailed views and suggestions. 5

6 GOVERNMENT GUIDELINES TO BANKS For the past more than four decades, Bank managements had been considering compassionate ground appointments of the dependents / spouse upon the unfortunate death of an employee while in service. In 1978, the Government of India, vide Banking Division, Ministry of Finance guidelines dated had given the scheme under which compassionate appointments should be made in the Banks. The scheme provided for appointment of one of the dependents / spouse to be appointed in the Banks against existing or anticipated vacancies and without undergoing the written test process which is prescribed for regular appointments in the Banks. This scheme has been in vogue and implementation since then MODIFICATION IN SCHEME In 1982, the Government issued further guidelines by which dependents of employees who voluntarily resign from the service before the age of 55 due to extreme medical conditions were also covered for compassionate appointments in the Banks. BANKING SERVICE COMMISSION ACT, 1975 / 1984 Under Section 13 (a) of Banking Service Commission Act 1975, as well as Banking Service Commission Act of 1984, it was clearly provided that while the commission was given the power to conduct examinations for appointments and filling up of vacancies in clerical and officer cadre, appointments under compassionate grounds can be made under a scheme framed by the Bank as per Government guidelines and such appointments could be made without consulting the Commission. 6

7 Thus, it was clearly envisaged that notwithstanding the normal recruitment rules, Compassionate appointments can be considered under a scheme by the Banks which has not been considered as conflicting with Article 14 and 16 of the constitution SUPREME COURT JUDGEMENT U K NAGPAL VS HARYANA In Umesh Kumar Nagpal Vs State of Haryana, the Hon.ble Supreme Court, vide its judgement dated held as under: o As a rule, appointments should be made on the basis of open invitation and merit. Exception is in favour of dependents of an employee dying in harness and leaving his family in penury & without any means of livelihood. o Out of humanitarian consideration, provision to be made in the rules for employment of one of the dependents. o The public authority concerned has to examine the financial condition of the family of the deceased & only if satisfied, job is to be offered to the eligible member of the family. o Compassionate appointment can only be offered in Class III & Class IV posts. o Such compassionate appointments cannot be granted after a lapse of reasonable period which must be specified in the rules GOVERNMENT GUIDELINES In view of the Supreme Court judgement in U.K. Nagpal case, the Government issued a guideline in 1996 advising the Banks to keep the Supreme Court judgement in view while considering the Compassionate appointments. 7

8 IBA GUIDELINES Based on the above Government guidelines, the IBA issued Circular (Circular No.813, dated ) advising the Banks to strictly abide by the guidelines based on the Nagpal Case judgement. IMPLEMENTATION OF GOVERNMENT / IBA GUIDELINES IN BANKS: Based on these guidelines received from Government & IBA, Banks were following the same and compassionate appointments were being extended only after looking into the financial condition of the family of the deceased. The appointments were being given only on selective basis where the family was in indigent situation. Thus, the general principles evolved out of the Supreme Court judgement in Nagpal case were being taken care of by the Banks. CHANGE IN ATTITUDE OF MANAGEMENTS: Notwithstanding the fact that IBA / Government guidelines based on Supreme Court judgement in Nagpal Case were being observed and implemented by the managements from 1996, the attitude of the Bank managements underwent a change. Based on this, Human Resources Committee recommended for abolition of compassionate appointments and payment of Ex-Gratia in lieu of job on the following grounds: 1. Compassionate appointments lead to surplus staff in Banks. 2. Only the least employable in the family apply for such compassionate appointments. 3. Some individuals have gone to the Court demanding compassionate appointments. 4. Indigent condition of the family was being overlooked. 8

9 Based on these views views, the Government suggested to IBA that IBA may suggest on alternative scheme of ex-gratia payment in lieu of compassionate appointments. Accordingly, IBA submitted the proposal to the Government. GOVERNMENT S ADVICE IN 2003 Based on these views of IBA, the Government, in October 2003, issued fresh guidelines to IBA as under: 1. Earmarking a large portion of the recruitment in clerical and Substaff cadres for compassionate appointments will affect the quality of manpower in Banks. 2. Help to the family of the deceased can be achieved by extending financial assistance. 3. Financial compensation scheme to be implemented by working out a uniform basis. This Government s advice was said to be in pursuance of Nagpal case. But Supreme Court did not ban or prohibit compassionate appointments in their said judgement and only wanted a proper rule or scheme to be worked out based on the financial condition of the family. NEW MODEL SCHEME, 2004 Based on the above advice of the Government, the IBA formulated a model scheme and submitted to the Government. The Government approved this scheme. On the IBA circulated this model scheme to all Banks thus stopping all compassionate appointments in the Banks and providing for financial compensation. 9

10 Obviously, this Scheme was not in conformity with the spirit and rulings of Supreme Court judgement in Nagpal case which did allow compassionate ground appointments based on some rules. FINANCIAL COMPENSATION SCHEME Eligibility 1. Employees dying due to injury sustained while performing official duty. 2. Employees dying due to dacoity, robbery, terrorist attack. 3. Employees dying in harness (other than under (a) and (b) 4. Employees seeking premature retirement due to incapacitation before the age of 55. Eligible Amount Ex-Gratia compensation will be granted if the monthly income of the family FROM ALL SOURCES is less than 60% of the last drawn salary of the deceased employee. Calculation of Monthly Income (1) Terminal Benefits Provident Fund Gratuity Leave Encashment Any other amount paid under Bank s Scheme(s) Sub-Total (A) (2) Liabilities Loans taken from Bank and/or other financial Institutions with the prior approval of the Bank Sub-Total (B) (3) Net corpus of Terminal Benefits (C = A - B)

11 (4) Investments Deposits NSCs PPF LIC policies Others Sub-Total (D) (5) Details of movable property, if any held and Monthly income derived therefrom (6) Details of immovable property, if any, held and monthly income thererfrom (7) Monthly Income of the family from all sources- (a) Monthly interest at the Bank s maximum Term Deposit rate on the net corpus of Terminal Benefits (C ) (b) Monthly income from investments (c) Monthly income from movable and Immovable Property (d) Monthly income of dependent family members (e) Any other monthly income Total monthly income of the family If the total monthly income of the family arrived at as above is less than 60% of the last drawn gross salary (net of taxes) of the employee, ex-gratia amount as under will be payable. (a) The cadre-wise ceiling on ex-gratia amount payable will be as follows: Category Maximum Amount Officers Rs.8 lacs Clerical staff Rs.7 lacs Subordinate staff Rs.6 lacs 11

12 (b) In case the monthly income of the family as calculated above is less than 60% of the last drawn gross salary (net of taxes) of the employee, an exgratia amount calculated at 60% of the last drawn gross salary (net of taxes) for each month of remaining service of the employees (i.e. up to the age of superannuation in terms of extant service rules/conditions) at the time of his death / incapacitation subject to the cadre-wise ceiling of Maximum Amount mentioned under (i) above, will be payable. (c) In case of death of an employee performing official duty within or outside the office premises (excluding travel from residence to place of work and back) due to dacoity / robbery / terrorist attack, the family is also eligible to receive, additionally, the one-time monetary compensation in terms of extant Government guidelines depending on the cadre of the employee. (d) This Ex-gratia amount will be paid within 3 months of application. IMPLEMENTATION OF MODEL SCHEME BY BANKS The IBA Model Scheme has been faithfully adopted by the Banks during 2004 and 2005 and all compassionate appointments were banned. Even cases involving death of employees while on duty were not considered. It appeared as though the Bank managements were waiting for an opportunity to stop compassionate appointments. Even past cases prior to this Model Scheme and which were duly processed and approved by the managements including the Board of Directors and were in the process of issuing appointment orders were stopped. In a glaring example, a widow appointed by the Bank on compassionate ground after due approval of the Board and who joined the Bank was terminated on the plea that the approval was given before the Model Scheme and date of joining was after the Model Scheme. 12

13 UFBU s CALL FOR STRIKE MARCH 2006 The IBA / Government s scheme of totally banning the compassionate appointments and introducing an unilateral compensation scheme was not acceptable to the Unions and United Forum of Bank Unions on the following grounds: (a) (b) (c) (d) (e) After Nagpal case, Banks were extending compassionate appointments duly taking into account the Supreme Court judgement. Supreme Court s observations and Judgement was / is applicable to all but in Central Government / RBI / LIC / Railways, etc., Compassionate appointments still continued. Ex-Gratia Scheme, the ceilings, the procedure of calculations, etc. were totally unilateral. Ex-gratia Scheme s benefit did not benefit majority of the families of deceased employees. Rather, their cases were mostly declined. Nagpal judgement did not ban compassionate appointments In view of this, the UFBU gave a call for Strike on exclusively on this issue and demanded reconsideration of the Scheme to provide for compassionate appointments. The IBA did not come forward to discuss the issue stating that compassionate appointment is not a service condition or part of any Bipartite Settlement. CONCILIATION BY CLC (C): In view of UFBU s Strike Notice, Chief Labour Commissioner (Central), Delhi intervened and held a conciliation meeting on , and During the conciliation meeting, it was pointed out that while compassionate appointments scheme have been in vogue in Banks for almost 4 decades, 13

14 even Nagpal Judgement of 1994 did not prohibit compassionate appointments. UFBU further pointed out other subsequent judgments like Balbir Kaur Vs SAIL dated and few other judgments have also opined that compassionate appointments can be given and that Ex-gratia can never be an alternative in all cases. CLC suggested that while compassionate appointments should be considered in exceptional cases, in other cases an improved Ex-gratia scheme can be discussed to enable the family to get monthly income near around the wages of the deceased employee. He advised both IBA and UFBU to sit together and work out a mutually acceptable scheme. Since IBA agreed to the same, the Strike was deferred. DISCUSSIONS WITH IBA Consequently, discussions were held on and on the issue when our suggestions as well as improvements were discussed. IBA agreed to place our views in their Managing Committee meeting and then forward the same to the government for their consideration. IBA MANAGING COMMITTEE MEETING The Managing Committee of the IBA was held on which considered our suggestions and approved the following: (a) (b) Compassionate appointments to be given to the family in cases of death while resisting dacoity, robbery, terrorist attack. In all other cases, Ex-gratia to be paid at 80% of the last drawn wages of the deceased employee for the remaining service period subject to a ceiling of Rs.6 lacs, Rs.7 lacs and Rs.8 lacs for Subordinate Staff, Clerical staff and Officers respectively. These modifications were recommended to the Government by IBA in August

15 The IBA also referred to the Government the demand of the UFBU for compassionate appointments to the spouse of an employee dying at a relatively young age provided he / she has the requisite qualifications. UFBU S STRIKE CALL AGAIN Though the issue was referred to the Government in August 2006, there was no outcome from the Government. Hence, UFBU gave a call for 3 days strike on 28, 29, 30 March 2007 and Indefinite Strike from , along with other demands like Pension option, etc. The Deputy Chief Labour Commissioner (Central), Mumbai and Chief Labour Commissioner (Central), Delhi held conciliation meeting and IBA did not come forward to resolve the issue. MEETING WITH PRIME MINISTER The UFBU met the Hon ble Prime Minister Dr.Manmohan Singh on and submitted a Memorandum reiterating UFBU s suggestions to IBA as under: a) In cases of deaths on account of resisting robbery, dacoity, terrorist attack, etc and those who die in performance of their duties etc., the compassionate appointment scheme should be restored as existed hitherto. b) In other cases of normal death of employees / officers in harness, compassionate appointments to the wife of the deceased employee should be considered looking to the age and family condition of the deceased. In case of death of employees of relatively young age, the employment to the wife should be extended. 15

16 c) In other cases, financial compensation scheme can be implemented in lieu of compassionate appointment. d) The financial compensation should be evolved by mutual discussion. e) An option should be given to the widow to receive the compensation amount on monthly basis instead of in lump sum. MEETING WITH FINANCE MINISTER On , UFBU met the Hon ble Finance Minister and submitted all our Strike demands. He suggested that he would advice IBA to hold discussions with UFBU on these demands to find a solution. MOU WITH IBA ON In this background of our meeting with Prime Minister and Finance Minister, IBA held a round of discussions with UFBU and consequently the Strike was deferred with the signing of an MoU. The MoU in relation to compassionate appointment was as under: The UFBU explained the demands as follows: a) In exceptional cases of deaths of employees and officers arising out of resisting dacoity, robbery, terrorist attacks and while in performance of duties, the erstwhile scheme of compassionate appointment would be restored. b) In case of employees / officers dying at relatively young age, wife of the deceased employee would be considered for employment on compassionate grounds based on the qualification prescribed by the Banks for the purpose of recruitments. 16

17 c) As regards financial compensation on death in lieu of appointment would be made applicable based on emoluments drawn at the time of death, as per the details already worked out. IBA informed that based on mutual understandings reached on the issues before the Chief Labour Commissioner (Central) and consequent discussions with UFBU, earlier recommendations have been forwarded to the government and that the response of the Government is expected shortly. REVISED GOVERNMENT GUIDELINES JUNE 2007 In the above background, the Government issued a revised guideline F-18/1/2006-1R dt providing for the following modifications: (a) (b) Compassionate appointments to be given to the next of kin of the employee dying while performing official duty as a result of violence, terrorism, dacoity or robbery. Compassionate appointments to be given to the next of kin of the employee dying within 5 years of his first appointment or before reaching the age of 30 years, whichever is later. The Government did not agree for any other suggestion of the UFBU or IBA including the recommendations of IBA on modified Ex-gratia formula. IBA GUIDELINES JULY, 2007 Based on the above guidelines of the Government, IBA vide their circular No.1549 dt advised all Public Sector Banks to adopt the modified scheme incorporating the above guidelines of Government. Accordingly, the Banks have adopted this revised Scheme. 17

18 UFBU LETTER TO IBA DT Since the above modifications were again unilateral and did not meet with our demands, the UFBU wrote a letter to the IBA Chairman on as under: As far as the demand for restoration of Compassionate Appointments and improvement in the financial compensation scheme is concerned, we find that the revised scheme cleared by the Government neither amounts to any meaningful restoration of compassionate appointment nor any improvement in the financial compensation scheme. There is virtually no employee within the age of 30 years and hence in effect the scheme would not apply to any of the present employees or officers. Further there is no change in the financial compensation scheme which is in total disregard to the bilateral discussions held between IBA & UFBU on the advice of the Chief Labour Commissioner. Hence, on this issue also, we appear to be back in square one. UFBU CALL FOR STRIKE ON Since there was no response from the IBA or the Government, the UFBU from its meeting held on gave a call for an All India Strike on Arising out of this Strike Notice, once again the Chief Labour Commissioner held conciliation meeting on and During this discussion IBA agreed to the advise of the CLC for holding discussions with the UFBU within a fortnight to find amicable solution based on the MoU dt Hence, the Strike was deferred. ISSUE REMAINED UNRESOLVED: Even though one round of discussions took place with the IBA on on the issue of Pension Option, the IBA did not honour its commitments to hold further discussions on the various demands including on Compassionate appointments on the plea that compassionate appointments are based on Government guidelines and IBA cannot do anything on its own. Hence, the issue remains unresolved. 18

19 UFBU S CALL FOR STRIKE ON Since the IBA or the Government did not come forward to resolve the various issues contained in the MoU dt the UFBU gave a call for strike on In the conciliation meeting held on , the IBA regretted their inability to make any improvements in the Compassionate Appointment scheme since their suggestions have not been accepted by the Government. In view of this and other issues also remaining unresolved the UFBU observed one day protest Strike on UFBU S CALL FOR TWO DAYS STRIKE ON & In view of the negative approach of the IBA and Government, the UFBU gave a call for 2 days Strike on 25 / MEETING WITH BANKING DIVISION & FINANCE MINISTER ON : In this background, the Secretary, Department of Financial Services, Ministry of Finance, Government of India, invited the UFBU for a discussion on During this meeting UFBU submitted its suggestions on compassionate appointments besides the other demands. This was followed by a meeting with the Hon ble Finance Minister wherein also the UFBU explained all its issues. Regarding Compassionate Appointment, the attention of the FM was brought to the fact that notwithstanding the Supreme Court judgement of 1994, compassionate appointments are continued in Central Government, State Governments, RBI, LIC, Railways and some other public sector undertakings. 19

20 We informed him that even deaths during the performance of duties are not fully included in the revised scheme except cases relating to dacoity / robbery. We also informed him that the understanding between IBA and UFBU on Ex Gratia has been declined in toto by the Government and virtually neither compassionate appointments are given nor Ex Gratia is paid. We also pointed out that the number of cases of death during service is very very negligible. We further pointed out that the Banks would be needing additional manpower, compassionate appointments can be given in the Banking sector also if the dependents possess necessary qualifications. The FM assured to advise the IBA to receive the suggestions of the UFBU in this regard whereafter the matter could be reviewed by the Government. MOU WITH IBA ON In this background, discussions were held before the CLC ( C ) and later with the IBA and an MoU was signed between UFBU and IBA on on various issues including on compassionate appointments which reads as under: As regards restoration of Compassionate appointment scheme, the IBA requested UFBU to suggest improvement, modifications, etc to the scheme to enable IBA to refer the matter to the Government for further consideration MEETING WITH IBA ON 18 / Based on the MoU as above, discussions were held with UFBU on and wherein the UFBU explained its suggestions for improvements and modifications in the compassionate appointment scheme. It was agreed that UFBU would submit its detailed views and suggestions to the IBA. Hence this memorandum containing our views and suggestions. 20

21 Before recording the suggestions, the UFBU wishes to draw the attention of the IBA/Government to the following: 1. PARLIAMENTARY STANDING COMMITTEE ON COMPASSIONATE GROUND APPOINTMENTS: The Government appointed an exclusive Parliamentary Standing Committee under the Chairmanship of Shri E.M. Sudharsana Natchiappan, Member of Parliament to go into the issue of Government s policy of appointment on compassionate grounds. The Committee had gone into the issue in detail and has submitted its report to the Parliament in Sep The Committee, among other things, made the following observations: Para 4.1 : After going through the judgements cited above, the Committee has an inference that Supreme Court also upholds the relevance of the policy in the PSUs and Government Departments. The Committee acknowledges that the court in its judgements tried to ensure implementation of the policy in a logical manner. The Committee is however constrained to note that many of the PSUs / Banks construed the judgements otherwise and thereby restricted the implementation of the policy of appointment on compassionate ground. While interacting with PSUs and Banks, the Committee came across such arguments. The Committee feels that the judgements particularly the Nagpal case was very often misquoted and misrepresented as if the Supreme Court banned the appointment on compassionate ground. Para 6.5 The Committee strongly feels that the Judgement given / delivered by the Hon ble Supreme Court in Shri Umesh Kumar Nagpal vs State of Haryana and others does not totally ban employment on compassionate grounds, rather it has been misquoted / misinterpreted / misunderstood that the Hon ble Supreme Court has totally banned the compassionate employment. The Committee feels that the 21

22 Government should not put a blanket ban on providing compassionate appointment to the family members of the deceased employees in the public sector banks, rather should find ways and means for giving employment under compassionate grounds in view of the shrinking employment opportunities in the Banking sector. The Committee therefore recommends that the Government should not totally ban the appointments on compassionate grounds in the Banking Sector, rather think of providing compassionate appointments to the family members of the deceased. For this, the power to appoint on compassionate grounds may be conferred on the CMDs of Public Sector Banks so as to enable them to give appointments to well deserved cases alone. Para 9.5 The Committee feels that in a welfare state like ours it is obligatory on the part of the government to provide the social security net to the employees and appointments on compassionate ground is one such measure. It gives a sense of being part and parcel of the organisation amongst its employees who feels that in case of falling victim at the hands of cruel destiny the organisation would take care of their families. The umbrella of protection certainly boosts the morale of not only the employees but also their families. The Committee therefore recommends that the policy of compassionate appointments should continue in the government, its PSUs, organisations, Trusts, etc. as a measure of Social Security Net and also consider offering the package on the lines of Chennai Petroleum Corporation Ltd. so that the family of the deceased employees survive the sudden void and crisis created by the cruel destiny. (Full Report given as Annexure) 2. SUPREME COURT JUDGEMENT DT : (SAIL) While the U.K. Nagpal case of the Supreme Court pertain to 1994, subsequently in the year 2000, the same Supreme Court in a landmark judgement in the case of Balbir Kaur vs SAIL Ltd. has elaborately held that compassionate appointments can be given. The salient features of the judgement are as under: 22

23 a) SAIL is an authority within the meaning of Article 12 of the Constitution and hence has an obligation to act in terms of the avowed objectives of Social and Economic Justice as enshrined in the Constitution. b) Whether SAIL has acted as a model or ideal employer? c) Whether Social and Economic justice has been obtained? d) Can we negative the lofty ideals of our Founding Fathers in our daily life? e) Socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning. f) The cry of the widow for bare subsistence cannot go unheeded. g) When the bread winner is no longer available, the prayer for compassionate appointment should not be denied on the ground that it may open a Pandora s box. h) Can it be the effect of our entering the new millennium? i) Can the Courts be a mute spectator in denial of such relief to the family? In this landmark judgment in 2000 ( Nagpal judgment was in 1994), the Supreme Court ordered for compassionate appointments to the dependents of two of the deceased employees of SAIL. In this judgement the Supreme Court has also relied on the fact that already there was a compassionate appointment scheme and that cannot be taken away. In the banking sector also right from 1978 as per Government guidelines, in every Bank schemes were worked out for extending compassionate appointments. Subsequently, based on U.K. Nagpal case all the banks have been keeping the judgement in mind while extending compassionate appointments. Hence, total denial of compassionate appointments is unjustified, unfair and is also beyond the judgement of the Supreme Court. 23

24 3. OTHER IMPORTANT JUDGEMENTS OF SUPREME COURT: A) The Supreme Court in its judgement dated April 8, 1993 in the case of Auditor General of India and others Vs G Ananta Rajeswara Rao [(1994) 1 SCC 1992] has held that appointment on grounds of descent clearly violates Articles 16 (2) of the Constitution; but if the appointment is confined to the son or daughter or widow of the Government servant 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. Thus, Supreme Court has not banned or prohibited compassionate appointments. B) The Supreme Court has ruled in the cases of Himachal Road Transport Corporation Vs Dinesh Kumar [JT 1996 (5) S.C. 319] on May 7, 1996 and Hindustan Aeronautics Limited Vs Smt A Radhika Thirumalai [JT 1996 (9) S.C. 197] on October 9, 1996 that appointment on compassionate grounds can be made only if a vacancy is available for that purpose. Thus Supreme Court has held that if vacancy is available, compassionate appointment can be considered. C) The Supreme Court has held in its judgement in the case of State of Haryana and others Vs Rani Devi and others [JT 1996 (6) S.C. 646] on July 15, 1996 that if the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad-hoc employees including those who are working as Apprentices, then such scheme cannot be justified on Constitutional grounds. Thus Supreme Court has opined that compassionate appointment can be considered to the family of permanent employees. 24

25 JUDICIARY ON COMPASSIONATE APPOINTMENTS: There have been number of various other judgments of both Supreme Court as well by the various High Courts on the issue of Compassionate appointments. Many of them relate to individual cases and nonimplementation of scheme, condonation of delay in applications, cases involving denial of compassionate appointments due to disciplinary action against deceased employee, etc. etc. The Courts have taken different view in individual cases looking to circumstances. In some cases, the judgements have been positive and in certain cases, the Courts have declined appointments. However, Supreme Court judgement in the case of U K NAGPAL Vs STATE OF HARYANA of 1994 is being frequently quoted. As narrated elsewhere, this judgement does not ban any compassionate appointment but only talks of certain principles to be followed while granting compassionate appointment. Equally the Supreme Court judgement in the case of BALBIR KAUR Vs SAIL of 2000 is also an important judgement. This judgement also reiterates that compassionate appointments can be given. In fact, this later judgement is more positive and affirmative. As a reference, the list of some of the judgments of Supreme Court relating to compassionate appointments has been given in as an Annexure. 4. COMPASSIONATE APPOINTMENT IN CENTRAL GOVERNMENT Para The Scheme The scheme of compassionate appointments was conceived as far back as Since then a number of welfare measures have been introduced by the Government which have made a significant difference to the financial position of the families of Government servants dying in harness but the scheme still continues as a welfare measure in recognition of the need for immediate assistance to a family on the death of a Government servant in harness. 25

26 Consequent on the observations/directions of the Supreme Court in its judgement, dated , the provision relating to appointment on compassionate grounds of a near relative has been deleted and the scheme is now applicable to widow, son or daughter incases of death in harness, suicide and in exceptional cases of retirement of Government servant on medical ground before attaining the age of 55 years (57 years in case of Group D ). The percentage of vacancies which can be filled by compassionate appointment in a given year is 5% of the direct recruitment quota Removal of ceiling on compassionate appointments A review of the desirability of continuance of the practice of compassionate appointments has been sought on the ground of its impact on efficiency. Removal of the existing ceiling on the percentage of posts which can be filled by compassionate appointments has also been sought Our recommendations We have considered the suggestions and taken note of the fact that the scheme of compassionate appointments envisages appointment of applicants only if they are eligible and suitable for a post in all respects under the provisions of the relevant recruitment rules, and such applicants are given relaxation only in recruitment procedure and age limit. The Scheme itself takes adequate care that appointments made are consistent with the requirements of maintenance of efficiency of administration. We are, therefore, of the view that the existing practice of making appointments on compassionate grounds in deserving cases needs to be continued. As regards removal of ceiling on the percentage of posts which can be filled by compassionate appointments, we are of the view that removal of the ceiling would reduce the number of posts available to candidates coming through direct recruitment which is not desirable. The existing ceiling of 5% in respect of compassionate appointments, therefore, needs to be maintained and followed strictly. 26

27 Enlargement/contraction of the scheme Extension of facility of compassionate appointments to dependents other than widows / son / daughter of the deceased Government servant and restricting the compassionate appointments to widows alone have been suggested Our recommendations The scope of the scheme providing for appointment on compassionate grounds has already been narrowed by deleting near relatives from the scheme by the Government. In view of the fact that existing provisions in the scheme are in conformity with the observations of the Supreme Court, inclusion of other relatives within the scope of the scheme or exclusion of son/daughter therefrom would not be appropriate Lumpsum payment in lieu of compassionate appointment It has been urged that the families of deceased Government servants who die in harness or those who are retired on medical grounds should be paid a lumpsum amount in cases where compassionate appointments are not feasible on administrative grounds Our recommendations We have considered the suggestion carefully and do not support the idea of making lumpsum payment in lieu of compassionate appointments because the facility of compassionate appointments is extended as an additional benefit to families in immediate need of assistance Time-limit for belated requests Suggestions have been made that the time lag in compassionate appointments should be reduced and the appointment made within a reasonable period of the demise of the Government servant and not postponed for unduly long periods on the ground that dependent children have not attained majority. 27

28 Our recommendations Since compassionate appointments can be made up to a maximum of 5% of the vacancies falling under direct recruitment quota in any Group C or D post, the applicants have sometimes to wait for a long time because of number of applicants exceed the ceiling of 5%. While in such a situation, delay in making compassionate appointments appears to be unavoidable, care should be taken that requests for compassionate appointments are received normally within a period of one year from the date of demise of the Government servant and delay does not take place on any other ground. The scheme of compassionate appointments having largely been related to the need for immediate assistance to the family on the passing away of the Government servant in harness, we are of the view that compassionate appointments should be made within a reasonable period of time after the demise of the Government servant and not postponed for unduly longer periods. The very fact that the family has been able to manage somehow all these years should normally be adequate proof to show that the family had some dependable means of subsistence. We have also taken note of the present safeguard that belated requests can be considered at the level of Secretary alone, which we feel is salutary in nature. We are of the view that appointments on compassionate grounds shall be made at the most within five years of the date of demise, and even such belated appointments should made only in the case of minor children who could not have been appointed because of their age being less than the minimum age of recruitment to Government service. 28

29 5. COMPASSIONATE APPOINTMENTS IN RBI 1. Revised Compassionate Package Scheme for the dependents of employees dying harness was introduced w.e.f (After U.K. Nagpal judgement) 2. Spouse of employees who were in service as on will have option to seek employment (or) receive lump sum payment of Ex-gratia. 3. Spouse of employees joined / joining after will be eligible for Ex-gratia only. 4. Spouse of existing employees as on who have crossed 50 years of age on the date of death of age on the date of death of the employee will be eligible for Ex-gratia only. 5. Rate of Ex-gratia One month total emolument for each completed year of service (or) 1½ month total emolument for each remaining year of service whichever is higher Provided Maximum: Minimum: Total emoluments for remaining period of service Not less than notional value of pension commutation 6. Waiver of Loans Outstanding of housing loan and other loans taken from the Bank by the deceased employee will be waived if the spouses do not opt for Compassionate Appointment Maximum Waiver a) Class IV Rs.2.50 Lacs b) Class III Rs.3.00 Lacs c) Officer Grade A, B, C Rs.3.50 Lacs d) Officer Grade D Rs.4.00 Lacs Note: If the deceased employee had not availed Housing Loan, additional 6 months emoluments will be paid to the spouse / dependent 29

30 6. COMPASSIONATE APPOINTMENTS IN LIC Compassionate Appointment Scheme provides for appointments in the case of death of an employee (or) premature retirement on health grounds before the age of 55. Appointment will be given to spouse, son or unmarried daughters. Assistant Post : Spouse pass in SSC with 45% marks Son / Daughter Graduate or HSC with 50% marks Record Clerk : Spouse pass in SSC Son / Daughter SSC with 45% mark or a pass in HSC Class IV post (Sweepers) : No educational qualification Other than Sweepers : Only son is eligible Hamals : Pass in 3 rd Standard Watchman, etc. : Pass in 7 th / 8 th Standard Widows are eligible for the post of Sub-staff Relaxation in Age: Spouse : Upper age limit: 45 years Son / Daughter : Upper age limit: 30 years A widow already employed elsewhere in private sector will be allowed to take the job in LIC in Class III or Class IV post commensurate with her qualification if she opts for this job. Application for Compassionate appointment to be given within 1 year of death / voluntary retirement on medical grounds before 55 years of age. Widow is allowed 5 years time from death of her husband to secure prescribed qualification for Class III post. Son / Daughter is given 2 years to acquire prescribed qualification for Class III post. Minor Son / Daughter will be given 3 years time to attain majority age to seek the job. Normal recruitment process / rules will not apply to compassionate appointments. There will be no written test for them. Only interview will be held. All compassionate appointments shall be subject to existing sanctioned vacancy. 30

31 7. COMPASSIONATE APPOINTMENTS BY STATE GOVERNMENTS Even after the Supreme Court judgement in U.K. Nagpal case, various state Governments have been extending Compassionate Appointments Madhya Pradesh ( ) 1. Fully dependent spouse, children, brother, sister eligible. 2. Appointment will be confined to Class III & IV post only years time given to acquire qualification. 4. No maximum age limit for wife years age relaxation for children. 6. For minor children, appointment can be given up to 7 years after death. 7. Appointment to be given in same department 8. If post is not available, in some other office within the same district. 9. If Class IV is not available, lump sum payment of Rs.1 Lac. 10. For those killed in communal riots, if main bread winner dies, one family member is to be given a Government job. Tamilnadu ( ) 1. Conditions of Supreme Court to be strictly followed. 2. Dependent will be given the job. 3. Appointments will be in Class III & Class IV only 4. Appointing Authority will examine the financial condition of the family. Tahsildar certificate for indigency will be obtained. 5. Family Pension of the deceased employee and immovable property like living house of the employee need not be taken for calculating the income of the family. 6. Application should be received within 3 years 7. Appointment will be given out against actual vacancy and not in supernumerary post. 8. Since there was a ban on recruitment from to , family of employees who died during this period can now apply within 3 months. 31

32 MAHARASHTRA: Recently, there have been reports that the Government of Maharashtra has decided to release 19,000 cases of compassionate ground appointments pending with them since 1997 since the Government is going to fill up the various unfilled vacancies. 8. COMPASSIONATE APPOINTMENTS IN RAILWAYS - Compassionate ground appointment scheme will apply to Railway employees (1) who lose their lives in the course of duty (or) (2) die in harness otherwise while in service (or) (3) are medically incapacitated or (4) whose whereabouts are not known for a period of 7 years. - Job can be given to wife / husband / son / daughter. - In husband and wife are working in Railways and if husband dies, then job can be given to the ward. - If the widow cannot take the job, Railways can keep the job open till the minor son affairs majority but within 5 years. - The applicant should fulfil conditions of eligibility of age and qualification. No relaxation in educational qualification. - For posts like Water Woman, Sweeper, Khalasi, etc minimum qualification will not be insisted upon. - For posts like Assistant Station Master, Guard, Senior Clerk, etc. graduation will be insisted. - Appointments can be made only in recruitment grades and not in promotional grades. - Suitability will be subject to a test by 3 officials. - Son of a deceased group D employee can be appointed in Group E if qualified. - To accommodate illiterate widows, posts like Waiting Room Attendant may be exclusively reserved for them. - Upper age limit can be relaxed. 32

33 9. COMPASSIONATE APPOINTMENTS IN PUBLIC SECTOR COMPANIES Public Sector Companies and Undertakings are equally governed by the general guidelines of the Government as well as the rulings of Supreme Court. While Compassionate Appointment are banned in Public Sector Banks, the same is continued in Public Sector Companies. For example, it is learnt that Compassionate Appointments are still given in GAIL, STC, Container Corporation of India, Bharat Dynamics, Neyveli Lignite Corporation, Cochin Port Trust, Bharat Petroleum, Chennai Port Trust, etc. In Chennai Petroleum Corporation, earlier Compassionate appointments were being made. This has been substituted by a different scheme by which the family of the deceased employee is paid the total and full salary of the deceased employee till the actual date of superannuation without making any cut. PUBLIC SECTOR BANKS: OTHER THAN GOVT. MODEL SCHEME: Union Bank of India Ex-gratia Compensation Scheme (Decided by Board meeting on ) a) Dependent of deceased employees will be granted Ex-gratia if the income of the family is less than 100% of the gross salary of the deceased. b) Amount = Last drawn gross salary for balance service Minimum Maximum Sub-staff 2.00 Lacs 6.00 Lacs Clerical 3.00 Lacs 7.00 Lacs Officers 4.00 Lacs 8.00 Lacs Bank of India 60% of last wages for remaining service Maximum Rs.6.00 lacs, 8 lacs & 10 lacs 33

34 10. COMPASSIONATE APPOINTMENTS IN PRIVATE BANKS In the Private Sector Banks like Karnataka Bank, ING Vysya Bank, Lakshmi Vilas Bank, Federal Bank, etc, the managements continue to extend Compassionate Ground appointments upon the death of employees while in service. There are even agreements to this effect which continue even today. 11. DATA ON NUMBER OF DEATHS IN BANKS WHILE IN SERVICE Name of the Bank Year No. of Union Bank of India Allahabad Bank Dena Bank Oriental Bank of Commerce UCO Bank From to till now 3½ Years Employees No. of Death (42 per year) As %

35 Bank of India Indian Overseas Bank Central Bank of India Syndicate Bank JUSTIFICATIONS FOR COMPASSIONATE APPOINTMENTS IN BANKS 1. Compassionate appointments were being made in Banks as per scheme advised by Government in From 1996, based on Supreme Court judgement in Nagpal case, compassionate appointments were being given duly taking into account the viewpoints of the Supreme Court. 3. Even the Supreme Court in the Negpal case (1994) has not prohibited or banned compassionate appointments. 4. In 2000, Supreme Court has given another landmark judgement in Balbir Kaur Vs SAIL directing compassionate appointment. There have been various other judgements 35

36 also indicating that Compassionate Appointments can be given to the dependent on the death of an employee. 5. For 2004, Compassionate appointments have been totally banned in Banks quoting Nagpal judgement even though there is no such ban order in that judgement. 6. Even today, even after the Nagpal judgement, compassionate appointments are being given in Central Government. 7. Various State Governments continue to give compassionate appointments. 8. In Railways, various Public Sector Undertakings, Private establishments, compassionate appointments are being given. 9. Within the financial sector also, in RBI & LIC, compassionate appointments scheme continues and appointments are being given. 10. Within the banking sector, private banks also give compassionate appointment. 11. The arguments that compassionate appointments lead to surplus staff is a fallacy. There are large number of vacancies unfilled in the Banks and acute shortage of staff is the reality. 12. Number of Banks have started the process of recruitments. There may be surplus pockets, if at all, in some area or place, but there is no surplus staff in any Bank as a whole. 36