Full Judgment Text
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CASE NO.:
Appeal (civil) 9132 of 2003
PETITIONER:
Commissioner of Public Instructions & Ors
RESPONDENT:
K.R. Vishwanath
DATE OF JUDGMENT: 30/08/2005
BENCH:
ARIJIT PASAYAT & H.K. SEMA
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
The appellant-State and its functionaries call in
question legality of the judgment rendered by a Division
Bench of the Karnataka High Court holding that the
respondent was entitled to be appointed on compassionate
grounds. By the impugned judgment the view expressed by the
Karnataka Administrative Tribunal (in short ’Tribunal’)
about such entitlement of the respondent was upheld.
Factual position is almost undisputed and needs to be
noted in brief:
Respondent’s father Ramachandra Narayan Bhat who was a
government servant died on 21.12.1977. The respondent was
born on 20.10.1977 and was hardly two months old at the time
when his father expired. He attained majority on
20.10.1995. He submitted an application on 2.12.1996 seeking
appointment on compassionate grounds purportedly under the
Karnataka Civil Services (Appointment on Compassionate
Grounds) Rules, 1990 (in short the ’Rules’). The said
application on 11/13.11.1997 was rejected on the ground that
the application had not been filed within time i.e. within
one year of attaining majority. Another application was
filed on 22.4.1998 which was not entertained. Certain
amendments were made to the Rules by the Karnataka Civil
Services (Appointment on Compassionate Grounds) (Amendment)
Rules, 1998 (in short ’Amendment Rules’) which were
operative with effect from 1.4.1999. Respondent filed
another application on 29.11.1999. The same was rejected on
9.6.2000 by stating that no application was pending on the
date when Amendment Rules came into force and, therefore,
the Rules as amended had no application to his case. The
respondent approached the Tribunal questioning the order of
rejection. By order dated 19.9.2001 Tribunal allowed the
petition and directed the present appellants to consider the
case of the respondent for appointment on compassionate
grounds without regard to any period of limitation referred
to in the letter dated 9.6.2000.
The appellants questioned correctness of Tribunal’s
decision before the High Court. As noted above, the High
Court dismissed the writ petition.
In support of the appeal, learned counsel for the
appellant submitted that the Tribunal and the High Court
failed to notice the relevant provisions and proceeded on
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factually and legally erroneous premises. Rule 5 of the
Rules as it originally stood reads as follows:
"Every dependant of a deceased
Government servant, seeking appointment under
these rules shall make an application within
one year from the date of death of the
Government servant, in such form, as may be
notified by the Government, from time to
time, to the Head of the Department under
whom the deceased Government Servant was
working.
Provided that in the case of a minor,
application shall be made within a period of
one year after attaining majority."
The said Rule was amended by the Amendment Rules w.e.f
1.4.1999 by substituting the existing proviso in the
following manner:
"Provided that in the case of a minor,
he must have make an application within one
year from the date of death of the Government
servant and he must have attained the age of
eighteen years on the date of making the
application.
Provided further that nothing in the
first proviso shall apply to an application
made by the dependant of a deceased
Government Servant, after attaining majority
and which was pending for consideration on
the date of commencement of the Karnataka
Civil Services (Appointment on Compassionate
Grounds) (Amendment) Rules, 1998."
It is pointed out that the respondent had filed first
application on 2.12.1996 which was rejected on
11/13.11.1997. He filed another application on 22.4.1998
which was also not entertained. The last application was
filed on 29.11.1999, obviously, after the Amendment Rules
came into force. The Tribunal and the High Court proceeded
on the basis as if the application was pending when the
amendment came into force w.e.f. 1.4.1999. the High Court
rightly noted that the effect of the amended first proviso
is that in the case of minor, he cannot make an application
within one year from the date of death of the government
servant and he must have attained the age of eighteen years
on the date of making the application. The High Court was of
the view that the second proviso makes it clear that nothing
contained in the first proviso shall apply to the
application made by the dependant of the deceased government
servant after attaining majority and which was pending for
consideration on the date of commencement of the amended
Rules. It was held that there can be no condonation of delay
in making the application. Learned counsel for the appellant
pointed out that the view is clearly contrary to the
applicable provisions and it would render the very purpose
of enacting the Rules. Factually, it was pointed out that
there were elder members in the respondent’s family.
Keeping in view the object of compassionate appointment, the
High Court’s view is indefensible.
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In response, learned counsel for the respondent
submitted that the Rules are merely directory and even if it
is conceded that there was no application pending that will
not change the situation. No technical view should be taken
as the object is to provide sustenance to distressed members
of a deceased government servant.
A bare reading of the second proviso makes the position
that unless the application is pending at the time of
commencement of the Amendment Rules, the same can have no
application. If the second proviso has no application, then
the question of any subsequent application being considered
does not arise. The provision is clear and unambiguous.
That being so, there was no scope for introducing a concept
of condonation of delay as has been done by the Tribunal and
the High Court. If the view is accepted it would mean that
a belated application will be deemed to have been done
within time. That would be in effect introducing a deeming
provision by interpretative process which is not
permissible.
Now comes the question of the object of compassionate
appointment.
As was observed in State of Haryana and Ors. v. Rani
Devi & Anr. (AIR 1996 SC 2445), it need not be pointed out
that the claim of person concerned for appointment on
compassionate ground is based on the premises that he was
dependant on the deceased-employee. Strictly this claim
cannot be upheld on the touchstone of Article 14 or 16 of
the Constitution of India. However, such claim is considered
as reasonable and permissible on the basis of sudden crisis
occurring in the family of such employee who has served the
State and dies while in service. That is why it is necessary
for the authorities to frame rules, regulations or to issue
such administrative orders which can stand the test of
Articles 14 and 16. Appointment on compassionate ground
cannot be claimed as a matter of right. Die-in harness
Scheme cannot be made applicable to all types of posts
irrespective of the nature of service rendered by the
deceased-employee. In Rani Devi’s case (supra) it was held
that scheme regarding appointment on compassionate ground if
extended to all types of casual or ad hoc employees
including those who worked as apprentices cannot be
justified on constitutional grounds. In Life Insurance
Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and
Anr. (1994 (2) SCC 718), it was pointed out that High Courts
and Administrative Tribunals cannot confer benediction
impelled by sympathetic considerations to make appointments
on compassionate grounds when the regulations framed in
respect thereof do not cover and contemplates such
appointments. It was noted in Umesh Kumar Nagpal v. State of
Haryana and Ors. (1994 (4) SCC 138), that as a rule in
public service appointment should be made strictly on the
basis of open invitation of applications and merit. The
appointment on compassionate ground is not another source of
recruitment but merely an exception to the aforesaid
requirement taking into consideration the fact of the death
of employee while in service leaving his family without any
means of livelihood. In such cases the object is to enable
the family to get over sudden financial crisis. But such
appointments on compassionate ground have to be made in
accordance with the rules, regulations or administrative
instructions taking into consideration the financial
condition of the family of the deceased.
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In Smt. Sushma Gosain and Ors. v. Union of India and
Ors. (1989 (4) SCC 468), it was observed that in all claims
of appointment on compassionate grounds, there should not be
any delay in appointment. The purpose of providing
appointment on compassionate ground is to mitigate the
hardship due to death of the bread-earner in the family.
Such appointments should, therefore, be provided immediately
to redeem the family in distress. The fact that the ward was
a minor at the time of death of his father is no ground,
unless the scheme itself envisage specifically otherwise, to
state that as and when such minor becomes a major he can be
appointed without any time consciousness or limit. The above
view was reiterated in Phoolwati (Smt.) v. Union of India
and Ors. (1991 Supp (2) SCC 689), and Union of India and
Ors. v. Bhagwan Singh (1995 (6) SCC 476). In Director of
Education (Secondary) and Anr. v. Pushpendra Kumar and Ors.
(1998 (5) SCC 192), it was observed that in matter of
compassionate appointment there cannot be insistence for a
particular post. Out of purely humanitarian consideration
and having regard to the fact that unless some source of
livelihood is provided the family would not be able to make
both ends meet, provisions are made for giving appointment
to one of the dependants of the deceased who may be eligible
for appointment. Care has, however, to be taken that
provision for ground of compassionate employment which is in
the nature of an exception to the general provisions does
not unduly interfere with the right of those other persons
who are eligible for appointment to seek appointment against
the post which would have been available, but for the
provision enabling appointment being made on compassionate
grounds of the dependant of the deceased-employee. As it is
in the nature of exception to the general provisions it
cannot substitute the provision to which it is an exception
and thereby nullify the main provision by taking away
completely the right conferred by the main provision.
In State of U.P. and Ors. v. Paras Nath (1998 (2) SCC
412), it was held that the purpose of providing employment
to the dependant of a Government servant dying-in-harness in
preference to anybody else is to mitigate hardship caused to
the family of the deceased on account of his unexpected
death while in service. To alleviate the distress of the
family, such appointments are permissible on compassionate
grounds provided there are Rules providing for such
appointments.
The ratio in Life Insurance Corporation of India’s case
(supra) is fully applicable to the present case.
Above being the position, the Tribunal and the High
Court were not justified in directing that the respondent’s
case be considered for appointment in terms of the Rules
without taking note of the limitation prescribed. The
judgments are set aside. The appeal is allowed without any
order as to costs. Our interference shall not stand on the
way of the respondent’s case being considered on the basis
of applicable existing or future Rules as may be applicable.