Commissioner
of Public Instructions & Ors Vs. K.R. Vishwanath [2005] Insc 456 (30 August 2005)
Arijit
Pasayat & H.K. Sema 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 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.
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.
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.
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