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

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 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

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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.

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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

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