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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.