REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7752 of 2021
(Arising out of Special Leave Petition (C) No.1564 of 2021)
THE SECRETARY TO GOVT. DEPARTMENT
OF EDUCATION (PRIMARY) & ORS. ... Appellant (s)
Versus
BHEEMESH ALIAS BHEEMAPPA ... Respondent(s)
J U D G M E N T
V. Ramasubramanian, J.
1. Leave granted.
2. Aggrieved by the order passed by Karnataka State Administrative
Tribunal which was also confirmed by the High Court, directing them to
consider the case of the respondent for appointment on compassionate
grounds, the State has come up with the above appeal.
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2021.12.16
16:27:16 IST
Reason:
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3. We have heard Sh. V. N. Raghupathy, learned counsel appearing
for the appellants and Sh. Jayanth Muthraj, learned senior counsel
appearing for the respondent.
4. Admittedly, the respondent’s sister who was employed as Assistant
Teacher in a Government School, died in harness on 8.12.2010, leaving
behind her surviving, her mother, two brothers and two sisters.
Claiming that the deceased was unmarried and that the mother, two
brothers and two sisters were entirely dependent on her income, the
respondent sought appointment on compassionate grounds. The claim
was rejected by the competent authority by an Order dated
17/21.11.2012, on the ground that the amendment made to the
th
Karnataka Civil Services (Appointment on Compassionate Grounds) (7
amendment) Rules, 2012 on 20.06.2012, extending the benefit of
compassionate appointment to the unmarried dependant brother of an
unmarried female employee, will not be applicable to the case of the
respondent.
5. Aggrieved by the said order of rejection, the respondent moved the
Karnataka State Administrative Tribunal by way of an application in
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Application No.9099 of 2014. The said application was allowed by the
Tribunal by an Order dated 10.11.2017, on the ground that the
amendment made to the Rules on 20.06.2012 would apply
retrospectively covering the case of the respondent, though his sister
died in harness on 8.12.2010.
6. Challenging the Order of the Karnataka Administrative Tribunal,
the State filed a writ petition before the High Court of Karnataka,
Dharwad Bench. The writ petition was dismissed by the High Court by
an Order dated 20.11.2019, on the basis of the decision of another
Division Bench of the Court, which held that the amendment to the
Rules was retrospective in nature. It is against the said Order that the
State has come up with above appeal.
7. As held by this Court repeatedly, every appointment to a post or
service must be made strictly by adhering to the mandate of Articles 14
and 16 of the Constitution. Appointment on compassionate grounds, is
an exception to the regular mode of recruitment, as it is intended to
provide succor to the family of the deceased Government servant, which
is thrown out of gear both financially and otherwise, due to the sudden
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death of the Government servant in harness.
8. Admittedly, the appointment on compassionate grounds in the
State of Karnataka is governed by a set of Rules known as Karnataka
Civil Services (Appointment on Compassionate grounds) Rules, 1996,
issued in exercise of the powers conferred by Section 3(1) read with
Section 8 of the Karnataka State Civil Services Act, 1978. The Rules as
they stood, on the date on which the sister of the respondent died in
harness, did not include an unmarried brother, within the definition of
the expression “dependant of a deceased Government servant” under
Rule 2(1)(a) of the said Rules visavis a deceased female unmarried
Government servant. But it was only by way of an amendment proposed
under a draft Notification dated 20.06.2012 which was given effect
under the final Notification bearing No. DPAR 55 SCA 2012, Bangalore
dated 11.07.2012 that an unmarried brother of a deceased female
unmarried Government servant was included within the definition.
There is no dispute about the fact that the sister of the respondent died
as an unmarried female Government servant, but on 8.12.2010, before
the amendment was made to the Rules.
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9. To hold that the amendment will have retrospective application, the
High Court as well as the Tribunal relied upon a Judgment of the
Division Bench of the High Court of Karnataka in
State of Karnataka
vs. Akkamahadevamma and others , decided on 18.11.2010 in Writ
Petition Nos.20914 of 2010 etc. But it should be pointed out at the
outset that the Judgment of the High Court in Akkamahadevamma
arose out of an amendment to the Karnataka Civil Services (General
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Recruitment) (57 Amendment) Rules, 2000. By the Amendment made
on 30.03.2010 to the said Rules, grandson, unmarried granddaughter,
daughter in law, widowed daughter and widowed granddaughter were
included within the definition of the expression “ members of the family ”
under Explanation2 of Rule 9. But the amendment so made on
30.03.2010 expanding the definition of the expression
“members of the
family” was triggered by an Order of the Tribunal which held the
unamended rule to be unconstitutional. It is in that context that the
amendment made on 30.03.2010 to the Rules issued on 23.11.2000 was
held by the High Court to be retrospective in nature. It must also be
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remembered that the expanded definition was with respect to project
displaced persons. The right conferred upon a project displaced person
stands on a different footing from the entitlement of a person to seek
appointment on compassionate grounds. In any case an amendment
brought forth, on the basis of a Judgment of a Court or Tribunal,
holding the exclusion of certain categories of persons to be violative of
Articles 14 and 16 of the Constitution, may receive an interpretation
such as the one proposed by the High Court in .
Akkamahadevamma
But the same may not be applicable to amendments of the nature that
we are concerned with in this case.
10. Incidentally we must point out that the High Court may not be
correct in holding in that the insertion of
Akkamahadevamma
additional words in an existing provision would make those additions
part of the original provision with effect from the date on which the
original provision came into force. The rules of interpretation relating to
‘substitution’ are not to be applied to the case of ‘insertion of additional
words’.
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11. Be that as it may, Sh. Jayanth Muthraj, learned senior counsel
appearing for the respondent pleaded that there are two lines of
Judgments of this Court, one taking the view that the Rules/Scheme in
force on the date of death of the Government servant would govern the
field and the other holding that the Rules/scheme in force on the date of
consideration of the claim would govern the field. Unable to reconcile
this conflict, a two Member Bench of this Court, by its Order dated
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08.02.2019 in vs. , has
State Bank of India Sheo Shankar Tewari
referred the matter for consideration by a larger Bench. Sh. Jayanth
Muthraj, learned senior counsel therefore made a request that the
present appeal may either be placed along with the reference or await a
decision on the above reference.
12. But we do not consider it necessary to do so. It is no doubt true
that there are, as contended by the learned senior Counsel for the
respondent, two lines of decisions rendered by Benches of equal
strength. But the apparent conflict between those two lines of decisions,
was on account of the difference between an amendment by which an
1 (2019) 5 SCC 600
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| existing benefit was withdrawn or diluted and an amendment by which<br>the existing benefit was enhanced. The interpretation adopted by this<br>Court varied depending upon the nature of the amendment. This can be<br>seen by presenting the decisions referred to by the learned senior<br>counsel for the respondent in a tabular column as follows: | | | | |
|---|
| Citation | Scheme in force<br>on the date of<br>death of the<br>Government<br>servant | Modified<br>Scheme which<br>came into force<br>after death | Decision of this<br>Court | |
| State Bank<br>of India vs.<br>Jaspal Kaur<br>(2007) 9 SCC<br>571<br>[a two<br>member<br>Bench] | The Scheme of the<br>year 1996, which<br>made the financial<br>condition of the<br>family as the main<br>criterion, was in<br>force, on the date of<br>death of the<br>employee in the year<br>1999. | The 1996 Scheme<br>was subsequently<br>modified by policy<br>issued in 2005,<br>which laid down<br>few parameters<br>for determining<br>penury. One of<br>the parameters<br>was to see if the<br>income of the<br>family had been<br>reduced to less<br>than 60% of the<br>salary drawn by<br>the employee at<br>the time of death.<br>Therefore, the<br>wife of the<br>deceased | Rejecting the<br>claim of the wife<br>of the deceased<br>employee, this<br>Court held that<br>the application of<br>the dependant<br>made in the year<br>2000, after the<br>death of the<br>employee in the<br>year 1999, cannot<br>be decided on the<br>basis of a Scheme<br>which came into<br>force in the year<br>2005. | |
| 8 | | | | |
| | | | |
|---|
| | employee claimed<br>the consideration<br>of the application<br>on the basis of<br>parameters laid<br>down in the policy<br>of the year 2005. | | |
| State Bank<br>of India Vs.<br>Raj Kumar<br>(2010) 11 SCC<br>661<br>[a two<br>member<br>Bench] | The employee died<br>on 1.10.2004 and<br>the applications for<br>compassionate<br>appointment were<br>made on 6.06.2005<br>and 14.06.2005. On<br>the date of death<br>and on the date of<br>the applications, a<br>Scheme known as<br>compassionate<br>appointment Scheme<br>was in force. | But with effect<br>from 04.08.2005<br>a new Scheme for<br>payment of ex<br>gratia lumpsum<br>was introduced in<br>the place of the<br>old Scheme. The<br>new Scheme<br>contained a<br>provision to the<br>effect that all<br>applications<br>pending under<br>the old Scheme<br>will be dealt with<br>only in<br>accordance with<br>the new Scheme. | This Court held<br>that the<br>application could<br>be considered<br>only under the<br>new Scheme, as it<br>contained a<br>specific provision<br>relating to<br>pending<br>applications. | |
| MGB Gramin<br>Bank vs.<br>Chakrawarti<br>Singh<br>(2014) 13 SCC<br>583<br>[a two<br>member<br>Bench] | The employee died<br>on 19.04.2006 and<br>the application for<br>appointment made<br>on 12.05.2006. A<br>scheme for<br>appointment on<br>compassionate<br>grounds was in force<br>on that date. | However, a new<br>Scheme dated<br>12.06.2006 came<br>into force on<br>6.10.2006,<br>providing only for<br>ex gratia payment<br>instead of<br>compassionate<br>appointment. | This Court took<br>the view that the<br>new Scheme alone<br>would apply as it<br>contained a<br>specific provision<br>which mandated<br>all pending<br>applications to be<br>considered under<br>the new Scheme. | |
| 9 | | | | |
| | | | |
|---|
| Canara<br>Bank vs. M.<br>Mahesh<br>Kumar<br>(2015) 7 SCC<br>412<br>[a two<br>member<br>Bench] | The employee died<br>on 10.10.1998 and<br>the application for<br>appointment on<br>compassionate<br>grounds, was made<br>under the Scheme of<br>the year 1993. It was<br>rejected on<br>30.06.1999. The<br>1993 Scheme was<br>known as “Dying in<br>Harness Scheme.” | The 1993 Scheme<br>was substituted<br>by a Scheme for<br>payment of ex<br>gratia in the year<br>2005. But by the<br>time the 2005<br>Scheme was<br>issued, the<br>claimant had<br>already<br>approached the<br>High Court of<br>Kerala by way of<br>writ petition and<br>succeeded before<br>the learned Single<br>Judge vide a<br>Judgment dated<br>30.05.2003. The<br>Judgment was<br>upheld by the<br>Division Bench in<br>the year 2006 and<br>the matter landed<br>up before this<br>Court thereafter.<br>In other words,<br>the Scheme of the<br>year 2005 came<br>into force: (i) after<br>the rejection of<br>the application for<br>compassionate<br>appointment<br>under the old<br>scheme; and (ii) | This Court<br>dismissed the<br>appeals filed by<br>the Bank on<br>account of two<br>important<br>distinguishing<br>features, namely,<br>(i) that the<br>application for<br>appointment on<br>compassionate<br>grounds was<br>rejected in the<br>year 1999 and the<br>rejection order<br>was set aside by<br>the High Court in<br>the year 2003<br>much before the<br>compassionate<br>appointment<br>Scheme was<br>substituted by an<br>ex gratia Scheme<br>in year 2005; and<br>(ii) that in the<br>year 2014, the<br>original scheme<br>for appointment<br>on compassionate<br>grounds stood<br>revived, when the<br>civil appeals were<br>decided. | |
| 10 | | | | |
| | | | |
|---|
| | after the order of<br>rejection was set<br>aside by the<br>Single Judge of<br>the High Court | | |
| Indian Bank<br>vs. Promila<br>and Another<br>(2020) 2 SCC<br>729<br>[a two<br>member<br>Bench] | The employee died<br>on 15.01.2004 and<br>the application for<br>appointment was<br>made by his minor<br>son on 24.01.2004.<br>On these dates, a<br>circular bearing<br>No.56/79 dated<br>4.04.1979 which<br>contained a Scheme<br>for appointment on<br>compassionate<br>grounds was in<br>force. But the<br>Scheme provided for<br>appointment, only<br>for those who do not<br>opt for payment of<br>gratuity for the full<br>term of service of<br>employee who died<br>in harness. | A new Scheme<br>was brought into<br>force on<br>24.07.2004 after<br>the death of the<br>employee. Under<br>this Scheme an ex<br>gratia<br>compensation<br>was provided for,<br>subject to certain<br>conditions. After<br>the coming into<br>force of the new<br>Scheme, the<br>claimant was<br>directed by the<br>bank to submit a<br>fresh application<br>under the new<br>Scheme. The<br>claimant did not<br>apply under the<br>new Scheme, as<br>he was interested<br>only in<br>compassionate<br>appointment and<br>not monetary<br>benefit. | In the light of the<br>decision in<br>Canara Bank vs.<br>M. Mahesh<br>Kumar, this<br>Court held that<br>the case of the<br>claimant cannot<br>be examined in<br>the context of the<br>subsequent<br>Scheme and that<br>since the family<br>had taken full<br>gratuity under the<br>old scheme, they<br>were not entitled<br>to seek<br>compassionate<br>appointment even<br>under the old<br>Scheme. | |
| N.C. Santosh<br>vs. State of | Under the existing<br>Scheme referable to | But by virtue of<br>an amendment to | After taking note<br>of a reference | |
| 11 | | | | |
| | | | |
|---|
| Karnataka<br>and Others<br>(2020) 7 SCC<br>617<br>(a three<br>Member<br>Bench) | Rule 5 of the<br>Karnataka Civil<br>Services<br>(Appointment on<br>Compassionate<br>Grounds) Rules,<br>1999, a minor<br>dependant of a<br>deceased<br>Government<br>employee may apply<br>within one year from<br>the date of attaining<br>majority. | the proviso to<br>Rule 5, a minor<br>dependant should<br>apply within one<br>year from the date<br>of death of the<br>Government<br>servant and must<br>have attained the<br>age of 18 years on<br>the date of<br>making the<br>application.<br>Applying the<br>amended<br>provisions, the<br>appointment of<br>persons already<br>made on<br>compassionate<br>grounds, were<br>cancelled by the<br>appointing<br>authority which<br>led to the<br>challenge before<br>this Court. | made in State<br>Bank of India<br>vs. Sheo<br>Shankar Tewari<br>to a larger bench,<br>a three member<br>Bench of this<br>Court held in N.C.<br>Santosh that the<br>norms prevailing<br>on the date of<br>consideration of<br>the application<br>should be the<br>basis for<br>consideration of<br>the claim for<br>compassionate<br>appointment. The<br>Bench further<br>held that the<br>dependant of a<br>government<br>employee, in the<br>absence of any<br>vested right<br>accruing on the<br>date of death of<br>the government<br>employee, can<br>only demand<br>consideration of<br>his application<br>and hence he is<br>disentitled to seek<br>the application of<br>the norms | |
| 12 | | | | |
| | | | |
|---|
| | | prevailing on the<br>date of death of<br>the government<br>servant. | |
| 13. Apart from the aforesaid decisions, our attention was also drawn to<br>the decision of the three member Bench in State of Madhya Pradesh<br>vs. Amit Shrivas2. But that case arose out of a claim made by the<br>dependant of a deceased Government servant, who was originally<br>appointed on a work charged establishment and who later claimed to<br>have become a permanent employee. The Court went into the distinction<br>between an employee with a permanent status and an employee with a<br>regular status. Despite the claim of the dependant that his father had<br>become a permanent employee, this Court held in that case that as per<br>the policy prevailing on the date of death, a work charged/contingency<br>fund employee was not entitled to compassionate appointment. While<br>holding so, the Bench reiterated the opinion in Indian Bank vs.<br>Promila.<br>14. The aforesaid decision in Amit Shrivas (supra) was followed by a<br>2 (2020) 10 SCC 496<br>13 | | | | |
two member Bench of this Court in the yet to be reported decision in the
vs. decided on 18.11.2021.
State of Madhya Pradesh Ashish Awasthi
15. Let us now come to the reference pending before the larger Bench.
In (supra), a two
State Bank of India vs . Sheo Shankar Tewari
member Bench of this Court noted the apparent conflict between State
Bank of India vs. Raj Kumar and MGB Gramin Bank on the one hand
and vs. on the other hand and
Canara Bank M. Mahesh Kumar
referred the matter for the consideration of a larger Bench. The order of
reference to a larger Bench was actually dated 8.02.2019.
16. It was only after the aforesaid reference to a larger Bench that this
Court decided at least four cases, respectively in vs.
(i) Indian Bank
Promila ; (ii) N.C. Santhosh vs. State of Karnataka; (iii) State of
and
Madhya Pradesh vs. Amit Shrivas; (iv) State of Madhya
Pradesh vs. Ashish Awasthi. Out of these four decisions, N.C.
was by a three member Bench, which actually took
Santosh (supra)
note of the reference pending before the larger Bench.
17. Keeping the above in mind, if we critically analyse the way in which
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this Court has proceeded to interpret the applicability of a new or
modified Scheme that comes into force after the death of the employee,
we may notice an interesting feature. In cases where the benefit under
the existing Scheme was taken away or substituted with a lesser benefit,
this Court directed the application of the new Scheme. But in cases
where the benefits under an existing Scheme were enlarged by a
modified Scheme after the death of the employee, this Court applied
only the Scheme that was in force on the date of death of the employee.
This is fundamentally due to the fact that compassionate appointment
was always considered to be an exception to the normal method of
recruitment and perhaps looked down upon with lesser compassion for
the individual and greater concern for the rule of law.
18. If compassionate appointment is one of the conditions of service
and is made automatic upon the death of an employee in harness
without any kind of scrutiny whatsoever, the same would be treated as a
vested right in law. But it is not so. Appointment on compassionate
grounds is not automatic, but subject to strict scrutiny of various
parameters including the financial position of the family, the economic
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dependence of the family upon the deceased employee and the avocation
of the other members of the family. Therefore, no one can claim to have
a vested right for appointment on compassionate grounds. This is why
some of the decisions which we have tabulated above appear to have
interpreted the applicability of revised Schemes differently, leading to
conflict of opinion. Though there is a conflict as to whether the Scheme
in force on the date of death of the employee would apply or the Scheme
in force on the date of consideration of the application of appointment
on compassionate grounds would apply, there is certainly no conflict
about the underlying concern reflected in the above decisions. Wherever
the modified Schemes diluted the existing benefits, this Court applied
those benefits, but wherever the modified Scheme granted larger
benefits, the old Scheme was made applicable.
19. The important aspect about the conflict of opinion is that it
revolves around two dates, namely, date of death of the employee; and
(i)
(ii) date of consideration of the application of the dependant. Out of
these two dates, only one, namely, the date of death alone is a fixed
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factor that does not change. The next date namely the date of
consideration of the claim, is something that depends upon many
variables such as the date of filing of application, the date of attaining of
majority of the claimant and the date on which the file is put up to the
competent authority. There is no principle of statutory
interpretation which permits a decision on the applicability of a
rule, to be based upon an indeterminate or variable factor . Let us
take for instance a hypothetical case where 2 Government servants die
in harness on January 01, 2020. Let us assume that the dependants of
these 2 deceased Government servants make applications for
appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a
modified Scheme comes into force on June 01, 2020. If the date of
consideration of the claim is taken to be the criteria for determining
whether the modified Scheme applies or not, it will lead to two different
results, one in respect of the person who made the application before
June 1, 2020 and another in respect of the person who applied after
June 01, 2020. In other words, if two employees die on the same date
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and the dependants of those employees apply on two different dates, one
before the modified Scheme comes into force and another thereafter,
they will come in for differential treatment if the date of application and
the date of consideration of the same are taken to be the deciding factor.
A rule of interpretation which produces different results,
depending upon what the individuals do or do not do, is
inconceivable . This is why, the managements of a few banks, in the
cases tabulated above, have introduced a rule in the modified scheme
itself, which provides for all pending applications to be decided under
the new/modified scheme. Therefore, we are of the considered view that
the interpretation as to the applicability of a modified Scheme should
depend only upon a determinate and fixed criteria such as the date of
death and not an indeterminate and variable factor.
20. Coming to the case on hand, the employee died on 8.12.2010 and
the amendment to the Rules was proposed by way of a draft notification
on 20.06.2012. The final notification was issued on 11.07.2012. Merely
because the application for appointment was taken up for consideration
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after the issue of the amendment, the respondent could not have sought
the benefit of the amendment. The Judgment of the Division Bench of
the Karnataka High Court in on which the
Akkamahadevamma
Tribunal as well as the High Court placed reliance, was not applicable to
the case of compassionate appointments, as the amendment in
came as a result of the existing rule being
Akkamahadevamma
declared to be ultra vires Articles 14 and 16 of the Constitution.
21. In view of the above, the appeal is allowed and the impugned order
of the High Court as well as that of the Tribunal are set aside. The
application of the respondent for compassionate appointment shall
stand dismissed. There shall be no order as to costs.
…..…………....................J.
(Hemant Gupta)
.…..………......................J
(V. Ramasubramanian)
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DECEMBER 16, 2021
NEW DELHI.
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