Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICITON
CIVIL APPEAL NO. 5122 OF 2021
The Director of Treasuries
in Karnataka & Anr. .. Appellants
Versus
V. Somyashree .. Respondent
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order dated 17.12.2018 passed by the High
Court of Karnataka at Bengaluru in Writ Petition
Signature Not Verified
No.5609/2017 by which the High Court has allowed the said
Digitally signed by R
Natarajan
Date: 2021.09.13
16:48:24 IST
Reason:
Writ Petition preferred by the respondent herein and has
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quashed and set aside the order dated 09.12.2015 passed by
the Karnataka State Administrative Tribunal, Bengaluru in
Application No.6396 of 2015 and consequently has directed
the appellants herein to consider the application of the
respondent herein – original writ petitioner (hereinafter
referred to as ‘original petitioner’) for grant of compassionate
appointment, the original respondent has preferred the
present appeal.
2. The facts leading to the present appeal in nutshell are as
under:
That one Smt. P. Bhagyamma, the mother of the original
writ petitioner was employed with the Government of
Karnataka as Second Division Assistant at Mandya District
Treasury. She died on 25.03.2012. That original writ
petitioner, who at the relevant time was a married daughter at
the time when the deceased (Smt. P. Bhagyamma) died,
initiated a divorce proceedings for divorce by mutual consent
under Section 13B of the Hindu Marriage Act, 1955 on
12.09.2012. By its judgment and decree dated 20.03.2013 a
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decree of divorce by mutual consent was passed by the
Learned Principal Senior Civil Judge, CJM, Mandya. On the
very next day i.e. on 21.03.2013, the original writ petitioner
submitted an application to appoint her on compassionate
ground on the death of her mother. By order dated
03.05.2013, the application for appointment on compassionate
appointment came to be rejected on the ground that there is
no provision provided under Rule 3(2)(ii) of Karnataka Civil
Services (Appointment on Compassionate Grounds) Rules
1996 (hereinafter referred to as ‘the Rules, 1996’) for divorced
daughter. That the original writ petitioner made an
application before the Karnataka State Administrative
Tribunal being application No.6396 of 2015 on 20.07.2015 i.e.
after a period of approximately 2 years from the date of
rejection of her application for appointment on compassionate
ground. The Learned Tribunal dismissed the said application
by order dated 09.12.2015 on the ground that there is no
provision for appointment on compassionate ground for
divorced daughter. Thereafter, the original writ petitioner
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approached the High Court against the order dated
09.12.2015 passed by the Learned Administrative Tribunal,
Bengaluru.
3. By impugned judgment and order dated 17.12.2018 the
High Court has allowed the Writ Petition No.5609 of 2017 and
has quashed and set aside the order dated 09.12.2015 passed
by the Karnataka Administrative Tribunal, Bengaluru in
application No.6393 of 2015 and has directed the appellants
herein to consider the application of the original writ petitioner
for grant of compassionate appointment based on the
observations made in the impugned judgment and order. By
the impugned judgment and order the High Court has
interpreted Rule 3 of the Rules, 1996 and has observed that a
divorced daughter would fall in the same class of an
unmarried or widowed daughter and therefore, a divorced
daughter has to be considered on par with ‘unmarried’ or
‘widowed daughter’.
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3.1 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the appellants
have preferred the present appeal.
4. Shri V.N. Raghupathy, Learned Advocate appearing on
behalf of the State has vehemently submitted that in the facts
and circumstances of the case, the High Court has materially
erred in quashing and setting aside the order passed by the
Learned Tribunal and has erred in directing the appellants to
consider the application of the writ petitioner for grant of
compassionate appointment.
4.1 It is submitted that the directions issued by the High
Court directing the appellants to consider the application of
the original writ petitioner for grant of compassionate
appointment is just contrary to Rule 3 of Rules, 1996. It is
submitted that as per Rule 3 of the Rules 1996 only
“unmarried and widowed daughter” shall be entitled to and/or
eligible for the appointment on compassionate ground in the
case of the deceased female Government servant. It is
submitted that Rule 3 (2)(ii) of Rules, 1996 does not include
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the ‘divorced daughter’ for grant of compassionate
appointment in the case of the deceased female Government
servant.
4.2 It is further submitted that even as per the definition of
‘dependent’ as defined in Rule 2 of the Rules, 1996, in case of
deceased female Government servant her widower, son,
(unmarried daughter or widowed daughter) who were
dependent upon her and were living with her can be said to be
‘dependent’. It is submitted that the divorced daughter is not
included within the definition of ‘dependent’.
4.3 It is submitted that therefore the directions issued by the
High Court directing the appellants to consider the application
of the respondent herein for appointment on compassionate
ground as a divorced daughter is beyond Rule 2 and Rule 3 of
the Rules, 1996.
4.4 It is submitted that even otherwise it has not been
established and proved that the respondent herein was
‘dependent’ upon the deceased employee and was living with
her at the time of her death.
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4.5 It is further submitted that even otherwise the High
Court has committed a grave error in not appreciating the fact
that the deceased employee died on 25.03.2012 and that
thereafter immediately the respondent initiated a divorced
proceedings under Section 13B of the Hindu Marriage Act,
1955 on 12.09.2012 and obtained a decree for divorce by
mutual consent dated 20.03.2013 and immediately on the
very next day submitted that application for appointment on
compassionate ground on 21.03.2013. It is submitted that the
aforesaid facts would clearly demonstrate that only for the
purpose of getting the appointment on compassionate ground
she obtained the divorce by mutual consent. It is submitted
that the High Court has not at all considered the aforesaid
aspects.
5.7 Reliance is placed on the decision of this Court in the
case of
N.C. Santhosh vs. State of Karnataka and Ors.,
(2020) 7 SCC 617 in support of the submission that the
appointment on compassionate ground only be as per the
scheme and the policy.
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5.8 Making the above submissions it is prayed to allow the
present appeal.
6. Present appeal is vehemently opposed by Shri Mohd.
Irshad Hanif, Learned Advocate for the respondent – original
writ petitioner.
6.1 It is submitted that in the facts and circumstances of the
case the High Court has rightly interpreted Rule 3 and the
object and purpose by which Rule 3 was amended in the year
2000 by which the words ‘unmarried daughter’ and ‘widowed
daughter’ came to be included within the definition of
‘dependent’ in Rule 3. It is submitted that the High Court has
rightly observed that the intention and the rule making
authority in adding ‘unmarried’ or ‘widowed daughter’ to the
definition of dependent is very clear. It is submitted that the
High Court has rightly observed that ‘divorced daughter’ would
fall in the same class of ‘unmarried’ or ‘widowed daughter’. It
is submitted that while interpreting Rule 3 of the Rules, 1996
the High Court has adopted the purposive meaning.
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6.2 It is submitted that even subsequently and as per the
Karnataka Civil Services Appointment on Compassionate
Grounds (Amendment Rules, 2021) the ‘divorced daughter’
also shall be eligible for appointment on compassionate
ground in the case of the deceased Government servant. It is
submitted that therefore the interpretation made by the High
Court by the impugned judgment is absolutely in line with the
amended Rules, 2021 by which now even ‘divorced daughter’
also shall be entitled the appointment on compassionate
ground in the case of the deceased servant.
6.3 Making the above submissions it is prayed to dismiss the
present appeal.
7. While considering the submissions made on behalf of the
rival parties a recent decision of this Court in the case of N.C.
(Supra) on the appointment on compassionate
Santhosh
ground is required to be referred to. After considering catena
of decisions of this Court on appointment on compassionate
grounds it is observed and held that appointment to any
public post in the service of the State has to be made on the
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basis of principles in accordance with Articles 14 and 16 of the
Constitution of India and the compassionate appointment is
an exception to the general rule. It is further observed that
the dependent of the deceased Government employee are made
eligible by virtue of the policy on compassionate appointment
and they must fulfill the norms laid down by the State’s policy.
It is further observed and held that the norms prevailing on
the date of the consideration of the application should be the
basis for consideration of claim of compassionate
appointment. A dependent of a government employee, in the
absence of any vested right accruing on the death of the
government employee, can only demand consideration of
his/her application. It is further observed he/she is, however,
entitled to seek consideration in accordance with the norms as
applicable on the day of death of the Government employee.
The law laid down by this Court in the aforesaid decision on
grant of appointment on compassionate ground can be
summarized as under:
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(i) that the compassionate appointment is an
exception to the general rule;
(ii) that no aspirant has a right to compassionate
appointment;
(iii) the appointment to any public post in the service of
the State has to be made on the basis of the
principle in accordance with Articles 14 and 16 of
the Constitution of India;
(iv) appointment on compassionate ground can be
made only on fulfilling the norms laid down by the
State’s policy and/or satisfaction of the eligibility
criteria as per the policy;
(v) the norms prevailing on the date of the
consideration of the application should be the basis
for consideration of claim for compassionate
appointment.
8. Applying the law laid down by this Court in the aforesaid
decision to the facts of the case on hand, we are of the opinion
that as such the High Court has gone beyond Rule 2 and Rule
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3 of the Rules, 1996 by directing the appellants to consider the
application of the respondent herein for appointment on
compassionate ground as ‘divorced daughter’. Rule 2 and
Rule 3 of the Rules, 1996 read as under:
“2. Definitions: (1) In these rules,
unless the context otherwise requires:
(a) “Dependent of a deceased Government
servant” means
(i) in the case of deceased male Government
servant, his widow, son, (unmarried daughter
and widowed daughter) who were dependent
upon him; and were living with him; and
(ii) in the case of a deceased female Government
servant, her widower, son, (unmarried
daughter and widowed daughter) who were
dependent upon her and were living with her;
(iii) ‘family’ in relation to a deceased Government
servant means his or her spouse and their
son, (unmarried daughter and widowed
daughter) who were living with him.
(2) Words and expressions used but not
defined shall have the same meaning assigned
to them in the Karnataka Civil Services
(General Recruitment) Rules, 1977.”
6. The eligibility on the death of a female
employee is in terms of Rule 3(2)(ii) of the
Karnataka Civil Services (Appointment on
Compassionate Grounds) Rules, 1996, which
reads as follows:
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Rule 3(2)(ii):
‘(ii) in the case of the deceased female
Government servant;
(a) a son;
(b) an unmarried daughter, if the son is not
eligible or for any valid reason he is not willing
to accept the appointment;
(c) the widower, if the son and daughter are not
eligible or for any valid reason they are not
willing to accept the appointment.
(d) a widowed daughter, if the widower, son and
unmarried daughter are not eligible or for any
valid reason they are not willing to accept the
appointment.
3. xxx
4 xxx”
8.1 From the aforesaid rules it can be seen that only
‘unmarried daughter’ and ‘widowed daughter’ who were
dependent upon the deceased female Government servant at
the time of her death and living with her can be said to be
‘dependent’ of a deceased Government servant and that ‘an
unmarried daughter’ and ‘widowed daughter’ only can be said
to be eligible for appointment on compassionate ground in the
case of death of the female Government servant. Rule 2 and
Rule 3 reproduced hereinabove do not include ‘divorced
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daughter’ as eligible for appointment on compassionate
ground and even as ‘dependent’. As observed hereinabove and
even as held by this Court in the case of
N.C. Santhosh
(Supra), the norms prevailing on the date of consideration of
the application should be the basis of consideration of claim
for compassionate appointment. The word ‘divorced daughter’
has been added subsequently by Amendment, 2021.
Therefore, at the relevant time when the deceased employee
died and when the original writ petitioner – respondent herein
made an application for appointment on compassionate
ground the ‘divorced daughter’ were not eligible for
appointment on compassionate ground and the ‘divorced
daughter’ was not within the definition of ‘dependent.’
8.2 Apart from the above one additional aspect needs to be
noticed, which the High Court has failed to consider. It is to
be noted that the deceased employee died on 25.03.2012. The
respondent herein – original writ petitioner at that time was a
married daughter. Her marriage was subsisting on the date of
the death of the deceased i.e. on 25.03.2012. Immediately on
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the death of the deceased employee, the respondent initiated
the divorced proceedings under Section 13B of the Hindu
Marriage Act, 1955 on 12.09.2012 for decree of divorce by
mutual consent. By Judgment dated 20.03.2013, the Learned
Principal Civil Judge, Mandya granted the decree of divorce by
mutual consent. That immediately on the very next day i.e. on
21.03.2013, the respondent herein on the basis of the decree
of divorce by mutual consent applied for appointment on
compassionate ground. The aforesaid chronology of dates and
events would suggest that only for the purpose of getting
appointment on compassionate ground the decree of divorce
by mutual consent has been obtained. Otherwise, as a
married daughter she was not entitled to the appointment on
compassionate ground. Therefore, looking to the aforesaid
facts and circumstances of the case, otherwise also the High
Court ought not to have directed the appellants to consider the
application of the respondent herein for appointment on
compassionate ground as ‘divorced daughter’. This is one
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additional ground to reject the application of the respondent
for appointment on compassionate ground.
8.3 Even otherwise, it is required to be noted that at the time
when the deceased employee died on 25.03.2012 the marriage
between the respondent and her husband was subsisting.
Therefore, at the time when the deceased employee died she
was a married daughter and therefore, also cannot be said to
be ‘dependent’ as defined under Rule 2 of the Rules 1996.
Therefore, even if it is assumed that the ‘divorced daughter’
may fall in the same class of ‘unmarried daughter’ and
‘widowed daughter’ in that case also the date on which the
deceased employee died she – respondent herein was not the
‘divorced daughter’ as she obtained the divorce by mutual
consent subsequent to the death of the deceased employee.
Therefore, also the respondent shall not be eligible for the
appointment on compassionate ground on the death of her
mother and deceased employee.
9. In view of the above and for the reasons stated above, the
appeal succeeds. The impugned common judgment and order
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passed by the High Court in Writ Petition No.5609/2017 is
hereby quashed and set aside. The Writ Petition before the
High Court is dismissed accordingly. However, there shall be
no order as to costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(ANIRUDDHA BOSE)
New Delhi,
September 13, 2021