Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2539 OF 2009
[ARISING OUT OF S.L.P. (CIVIL) NO. 21306 OF 2006]
STATE OF JHARKHAND & ORS. … APPELLANTS
Versus
SHIV KARAMPAL SAHU … RESPONDENT
J U D G M E N T
S.B. SINHA, J.
1. Leave granted.
2. Interpretation and/or application of two circulars; one dated
21.9.1987, and the other dated 9.8.2000 relating to grant of monetory
compensation and/or appointment on compassionate ground falls for
consideration in this appeal which arises out of a judgment and order
dated 28.10.2005 passed by a Division Bench of the High Court of
Jharkhand at Ranchi allowing a writ petition filed by the respondent
herein seeking for appropriate direction to the appellant to provide
2
appointment on compassionate ground as per the Scheme framed by the
Government.
3. The State of Bihar keeping in view a large number of casualties
which have been taking place at the hands of naxalties and/or extremists
took a policy decision to grant monetary compensation to the victims of
the incidents of terrorist/virulent/communal confrontations/violence
relating to the Election/Joint murders by way of ex-gratia payment. The
said decision was taken keeping in view a judgment of the High Court of
Patna relating to grant of ex-gratia payment to the dependents of the
persons/injured in the terrorist incidents which had taken place at Arbal
Police Station in the District of Gaya and further in view of the fact that
similar incidents had taken place within Madanpur Police Station
Baghoura and Dalelchuk villages of District Aurangabad in terms
whereof in case of death, a sum of Rs.20,000/- was to be paid to the
dependents of each deceased and in case of permanent disability a sum of
Rs.5,000/-, and in case of serious injury Rs.500/- to Rs.1000/- was to be
paid.
4. No ex-gratia payment was to be made in favour of the persons who
were terrorist/virulent or listed criminal.
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Monetory compensation was also proposed in the case of
destruction or damage to the properties subject to the conditions
mentioned in the said circulars. Various other types of grants like the one
for the help of the students of the families and free medical treatment to
the injured persons were also stipulated thereunder. Other measures by
way of contingent expenses were also contemplated thereby.
5. Indisputably, father of the respondent was not a government
servant. He was allegedly killed by extremists on 19.5.2000.
The State of Bihar adopted another scheme for grant of
appointment on compassionate ground to the dependents of those who
have been killed in the terrorist attacks, as would appear from a circular
dated 9.8.2000, stating:
“I am directed to say that the incidents of
terrorist/ virulent/ communal confrontations/
violence relating to the Election/joint murders
have been occurred in the State and usually the
affected of such attacks are found innocent
persons and their dependents. Sometimes the
whole family is become like dead. In such
circumstances, being the Government of the
welfare State, providing of ex-gratia and other
facilities to the persons and their dependants
who have affected in the
terrorist/virulent/communal
confrontation/violence relating to the
Election/joint murders becomes the duty of the
State Government. The State Government has
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always been putting efforts in this direction.
Here, recently only, the Hon’ble High Court has
also given an order for determining a
transparent policy in this regard in a case
relating to Dharamshila Kunwar versus
Government of the State and others (CWJC No.
5808/97)
1. Till date the sufferers of the violence
incident happened due to
terrorists/virulent/communal confrontation in
the State and their dependents have been
sanctioned ex-gratia according to the provisions
made in the Circular from the Department of
Home (Special) Affairs bearing No.A/N.Pol.
1701 dated 21.09.1987 (Annexure-1).
According to the said Circular the dependents of
the persons died in the above said kinds of
incidents Rs.20,000/- (Rupees Twenty thousand
only), suffered permanent disability Rs.5,000/-
(Rupees Five thousand only) and to the
seriously injured persons Rs.500/- to Rs.1,000/-
(From Rs. Five hundred to Rs. One thousand)
has been sanctioned as ex-gratia, but this ex-
gratia is not admissible to any of such person
who is a virulent/terrorist or is any kind of listed
criminals. In the said circular, there exists no
provision for providing appointment to the
dependants of the deceased persons in the
government service on the compassionate
grounds.”
Paragraph 7 of the said policy decision reads as under:
“The amount as required for the payment in the
aforesaid heads would be made available by the
State Government from time to time. The
allocation of the funds would be done under the
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Budget Head 2235 as previously. For making
available the relief with regard to the
terrorist/virulent/communal
confrontation/violence relating to the
elections/massacre and violence incident of any
other kind Nodal Department of Home (Special)
would be available, from where all the guiding
principles on the policy matter would be issued
and the proceedings for providing relief work
and government service would be monitored.”
6. Respondent herein being son of late Duli Sahu filed a
representation for his appointment on compassionate ground on or about
5.11.2000. The same was rejected by the Deputy Commissioner, Gumla
by an order dated 25.1.2003 opining that there was no provision for
employment on compassionate ground for a son of the deceased in the
light of prevailing directives of the Government at that time.
However, on or about 7.5.2003, the Government of Jharkhand,
which came into being in terms of the provisions of the Bihar
Reorganisation Act, 2000 took a policy decision that the matter relating to
the appointment of the dependent of the deceased in the terrorist violence
should be given effect to in respect of those persons who had been killed
in violence after the date of formation of the State of Jharkhand, i.e.,
dated 15.10.2000.
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In the light of the aforementioned resolution, the representation of
the respondent was rejected in the meeting of the District Compassion
Committee held on 5.4.2005, stating:
“The murder of father of the applicant late Duli
Sahu had taken place on dated 19.5.2000 i.e.
before dated 09.08.2000. It has been mentioned
in Para 7 of the Circular No. 1972 dated
09.08.2000 from the then Chief Secretary,
Government of Bihar, Home (Special)
Department, dated 09.08.2000 that ‘this order
would be effective from immediate effect’
Thus, this case does not fall within the
ambit of the circular of the Government of Bihar
and Resolution of the Govt. of Jharkhand.
Therefore, Committee took the decision
to reject the said case.”
7. Questioning the validity of the said order, the respondent filed a
writ petition before the High Court. The said writ petition was taken up
with two similar matters pending before the High Court. The Division
Bench of the High Court by reason of the impugned judgment opined that
although the respondents have been paid a sum of Rs. 20,000/- as
compensation, but having regard to the circulars issued by the State of
Jharkhand in the matter of appointment on compassionate ground in
general cases within a period of five years from the date of death, the
same would also cover the instant case, stating:
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“Such limitation of five years prescribed from
the date of death and thereby Circular No. 6817
th
dated 25 May, 1989 also covered the
dependents of those employees, who died prior
th
to 25 May, 1989 but within the limitation of
five years, enabling the dependent to apply. For
example, if a Government employee died in
harness in the year, 1986, the dependent of such
deceased employee having applied within five
years of the death, was also covered by Circular
th
dated 25 May, 1989. The said Circular has
been further clarified by the Personnel and
Administrative Reforms Department’s Memo
th
No.3/C-2-2067/90 Ka. 13293 dated 5 October,
1991.
In the matter of compassionate appointment, on
the death of a person, killed by
terrorist/extremist or during communal violence
or during election violence etc., the definition of
“dependent” and other things of general
compassionate appointment are to be followed;
the period of limitation will be the same i.e. five
years from the date of death and their cases are
also to be considered through the
Compassionate Appointment Committeee.”
8. Mr. B.B. Singh, learned counsel appearing on behalf of the
appellants would submit:
i. The High Court committed a serious error of law insofar as it
failed to take into consideration that the circular letters
issued by State of Jharkhand could not have been given a
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retrospective application in the matter of grant of
appointment on compassionate ground.
ii. The scheme for appointment on compassionate ground
having been made only for the government servants, the
same could not have been applied in cases of dependents of
the deceased who were not government servants.
9. The scheme for grant of monetory compensation to the dependents
of the deceased or injured who are affected in any kind of
terrorist/virulent/communal attack must be considered in terms of the
stipulations made in the circular letters containing policy decisions.
Appointment on compassionate ground, it is trite, must be made keeping
in view the provisions contained in Articles 14 and 16 of the Constitution
of India. Such schemes cannot be given an expansive meaning as the
constitutional scheme envisages that all persons who are entitled to be
considered for appointment would be eligible for being considered
therefor. Any policy decision for appointment on compassionate ground
must, therefore, receive a strict construction.
10. In State of J & K and Ors. v. Sajad Ahmed Mir [(2006) 5 SCC
766], the law was laid down in the following terms:
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“11. We may also observe that when the
Division Bench of the High Court was
considering the case of the applicant holding
that he had sought "compassion", the Bench
ought to have considered the larger issue as well
and it is that such an appointment is an
exception to the general rule. Normally, an
employment in the Government or other public
sectors should be open to all eligible candidates
who can come forward to apply and compete
with each other. It is in consonance with Article
14 of the Constitution. On the basis of
competitive merits, an appointment should be
made to public office. This general rule should
not be departed from except where compelling
circumstances demand, such as, death of the
sole breadwinner and likelihood of the family
suffering because of the setback. Once it is
proved that in spite of the death of the
breadwinner, the family survived and
substantial period is over, there is no necessity
to say "goodbye" to the normal rule of
appointment and to show favour to one at the
cost of the interests of several others ignoring
the mandate of Article 14 of the Constitution.
[See also Mumtaz Yunus Mulani vs. State of Maharashtra & ors. [2008
(4) SCALE 637]
11. A circular letter providing for appointment on compassionate
ground in case of death of a government servant cannot be extended in
case of the dependents of the deceased who was not a government
servant. A public employment must be offered to a person who is entitled
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therefor. All recruitments subject to just exceptions must be made in
terms of the rules framed under the proviso appended to Article 309 of
the Constitution of India. A circular letter issued by the State cannot be
issued de hors the constitutional scheme of making offer of public
appointment. [See Official Liquidator vs. Dayanand & ors. [(2008) 10
SCC 1 para 52]; State of Bihar vs. Upendra Narayan Singh & Ors.
[(2009) 4 SCALE 282 para 19]; and Man Singh v. Commissioner,
Garhwal Mandal, Pauri & Ors. [2009 (4) SCC 645].
12. Moreover, a benevolent circular, it is well known, cannot be
extended to a case which was not contemplated by the circular itself.
In Regional Director, Employees’ State Insurance Corporation,
Trichur vs. Ramanuja Match Industries [AIR 1985 SC 278], this Court
held:
“…We do not doubt that beneficial legislations
should have liberal construction with a view to
implementing the legislative intent but where
such beneficial legislation has a scheme of its
own there is no warrant for the Court to travel
beyond the scheme and extend the scope of the
statute on the pretext of extending the statutory
benefit to those who are not covered by the
scheme.”
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In Deepal Girishbhai Soni & ors. vs. United India Insurance Co.
Ltd., Baroda [(2004) 5 SCC 385], it was opined :
“53. Although the Act is a beneficial one and,
thus, deserves liberal construction with a view
to implementing the legislative intent but it is
trite that where such beneficial legislation has a
scheme of its own and there is no vagueness or
doubt therein, the court would not travel beyond
the same and extend the scope of the statute on
the pretext of extending the statutory benefit to
those who are not covered thereby.”
13. Furthermore, in the matter of construction or application of
subordinate legislation the rule of incorporation by reference should not
be applied unless a clear case is made out therefor. The circular letter
dated 21.9.1987 is an independent one. It operates in its own field. There
is no scope of reading both the circulars together. Even if they could be
read, the general circulars in regard to the appointment on compassionate
ground which were again applicable to the cases of dependents of the
deceased employees either for the purpose of consideration of the period
during which such appointments were to be made or otherwise could not
have been taken into consideration for the purpose of grant of benefit to
which he was not otherwise entitled to.
12
In Management of Indian Bank & Anr. vs. Ramachandran & ors.
[JT 2007 (13) SC 436], it has been held:
“It is now a trite law that for the purpose of
construing a statute, reference to another statute
is not permissible and, thus, Regulation 21 of
the Civil Services Pension Rules contemplates a
different situation, the same will have no
application in the instant case. The High Court,
therefore, committed an error in relying on the
said provision.”
14. Ordinarily, a subordinate legislation should not be construed to be
retrospective in operation. The circular letter dated 7.5.2003 was given a
prospective effect. The father of the respondent died on 19.5.2000.
There is nothing to show that even circular dated 9.8.2000 had been given
retrospective effect. In any view of the matter, as the State of Jharkhand
in the circular letter dated 7.5.2003 adopted the earlier circular letters
issued by the State of Bihar only in respect of cases where death had
occurred after 15.10.2000, i.e., the date from which the State of Jharkhad
came into being, the High Court, in our opinion, committed a serious
error in giving retrospective effect thereto indirectly which it could not do
directly.
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Reasons assigned by the High Court, for the reasons
aforementioned, are unacceptable.
15. For the aforementioned reasons, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed.
However, in the facts and circumstances of the case, there shall be no
order as to costs.
……………….…..………….J.
[S.B. Sinha]
……………….…..………….J.
[Cyriac Joseph]
NEW DELHI;
APRIL 15, 2009