State of Jharkhand
& Ors Vs. Shiv Karampal Sahu [2009] INSC 762 (15 April 2009)
Judgment
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
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.
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 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 5 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.
6 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:
7 "Such
limitation of five years prescribed from the date of death and thereby Circular
No. 6817 dated 25th May, 1989 also covered the dependents of those employees,
who died prior to 25th 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 dated 25th
May, 1989. The said Circular has been further clarified by the Personnel and
Administrative Reforms Department's Memo No.3/C-2-2067/90 Ka. 13293 dated 5th
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 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:
9 "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 10 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."
11 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.
13 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;
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