ORDER :

UDAY UMESH LALIT, J.

1. The father of the respondent was working with the petitioner-bank and while in service died on 11.11.2004. A request was made for appointment on compassionate grounds by the respondent on 03.03.2005. As on that date, compassionate appointment could be granted to the dependents of employees dying in harness. However, instructions were issued by the Government of India, Ministry of Finance on 14.07.2004 to frame an appropriate scheme for payment of monetary assistance in lieu of compassionate appointment. Vide its communication dated 31.07.2004 the IBA (Indian Banks' Association) had advised the banks to frame their own schemes based on said model.

2. Before the application of the respondent could be considered, the petitioner-bank formally approved a scheme for payment of ex-gratia lump-sum amount in lieu of compassionate appointment vide its scheme circulated on 04.08.2005. The relevant clause namely Clause 15(vi) provided:-

"With effect from the date the "SBI Scheme for payment of ex-gratia lump-sum amount" comes into force the bank's scheme of compassionate appointments shall be deemed abolished/withdrawn and no request for compassionate appointment shall be entertained or considered by the bank under any circumstance."

3. According to the petitioner-bank, the application of the respondent for compassionate appointment could not therefore be considered. The challenge to the action on part of the bank by way of Writ Petition was accepted by the Single Judge and the Division Bench of the High Court which decisions are presently in appeal.

4. The learned counsel for the petitioner-bank relied upon the decision of this Court in State Bank of India and another vs. Raj Kumar, (2010) 11 SCC 661 and particularly paragraphs 2, 8, 12 and 13 which are to the following effect:-

"2. The respondent's father employed as a Messenger in the appellant Bank, died on 1-10-2004. The respondent's mother made applications dated 6-6-2005 and 14-6-2005 requesting for his appointment on compassionate grounds. When the applications were being processed and verified, the Compassionate Appointment Scheme was substituted by the "SBI Scheme for payment of ex-gratia lump sum amount" with effect from 4-8-2005. The new Scheme abolished the old Scheme for compassionate appointments and instead provided for payment of an ex-gratia lump sum amount as per its terms.

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8. 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.

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12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application i