compassionate appointment = A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.
19. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar8 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State’s policy. 20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee. 8 (2019) 3 SCC 653 Page 15 of 16 21. In view of the foregoing opinion, we endorse the Tribunal’s view as affirmed by the High Court of Karnataka to the effect that the appellants were ineligible for compassionate appointment when their applications were considered and the unamended provisions of Rule 5 of the Rules will not apply to them. Since no infirmity is found in the impugned judgments, the appeals are found devoid of merit and the same are dismissed.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 9280-9281 OF 2014
N.C. Santhosh Appellant(s)
Versus
State of Karnataka & Ors. Respondent(s)
WITH
CIVIL APPEAL NO. 1996 OF 2020
(Arising out of SLP(C) No. 34878/2013
CIVIL APPEAL NO. 1997 OF 2020
(Arising out of SLP(C) No. 24169/2015
J U D G M E N T
Hrishikesh Roy, J.
Leave granted in SLP(C) No. 34878/2013 and SLP(C) No.
24169/2015
2. The appellants here were the beneficiary of compassionate
appointments. But on the discovery that their appointments were made
dehors the provisions of the Karnataka Civil Services (Appointment on
Compassionate Grounds) Rules, 1996 as amended w.e.f. 1.04.1999,
Page 1 of 16
(hereinafter referred to as the “Rules”), those appointments came to
be cancelled. The amendment to the proviso to Rule 5 stipulated that
in case of a minor dependant of the deceased government employee,
he/she must apply within one year from the date of death of the
government servant and he must have attained the age of eighteen
years on the day of making the application. Before amendment, the
minor dependant was entitled to apply till one year of attaining
majority.
3. When their service was terminated the aggrieved appointees
approached the Karnataka Administrative Tribunal at Bangalore
(hereinafter referred to as the “Tribunal”). But the Tribunal found that
appellants were ineligible for appointment under the Rules and
accordingly dismissed the related applications. The resultant writ
petitions were dismissed by the High Court of Karnataka at Bangalore,
leading to the present appeals.
4. We have heard Ms. Kiran Suri, learned Senior Counsel
appearing for the appellant in the Appeal arising from the SLP (C)
No.34878 of 2013, Mr. Shanthkumar V. Mahale, learned counsel
appearing in C.A. Nos.9280-9281 of 2014 and in the appeal arising out
of the SLP (C) No.24169 of 2015. The State of Karnataka is
Page 2 of 16
represented by Mr. V.N. Raghupathy and Mr S Padhi, the Learned
Counsel in the respective appeals.
5. Assailing the adverse decision of the Tribunal as affirmed by the
High Court, the appellants contend that they have been legitimately
appointed on compassionate basis and have rendered service without
any blemish and therefore, the authority should not be permitted to
apply the amended provisions and cancel the appointment on the
ground that the appointees were ineligible to apply for compassionate
appointment. Ms. Kiran Suri, the learned senior counsel argues that
Rule 5 is only procedural and is not mandatory and therefore,
compassionate appointment of the dependant children who attained
majority beyond one year of death of the government employee,
should not be construed to be invalid. According to the appellants,
their cases have to be considered under the unamended Rules which
permits a minor dependant to apply for compassionate appointment
within one year of attaining majority. Describing Rule 9 as a
transitional provision whereunder the period for making application has
been changed through various amendments, the counsel for the
appellants argue that retrospective application of the amended
provisions should not lead to cancellation of appointment. Moreover,
since compassionate appointment was offered without any
misrepresentation by the beneficiary, the appellants should not be
Page 3 of 16
rendered jobless now on the ground of non-eligibility of the
appointees.
6. The respondents, on the other hand, argue that the norms
applicable at the stage of consideration is relevant and here as the
appellants had not attained majority within one year from the death of
the government employee, they were ineligible to seek compassionate
appointment under the amended provisions of the compassionate
Rules. The Government counsel contend that since compassionate
appointment is an exception to the general Rule governing
appointment in the service of the State, the same has to be in
conformity with the prescribed Rules and those ineligible under the
Rules cannot ask for continuation of the illegal appointment. The
respondents also argue that the government has the power to rectify
the mistake and to recall the illegal appointment orders as the
appellants were appointed erroneously, despite there ineligibility.
7. The essential details of the appellants can be seen in the
following chart:-
Case C.A. Nos. 9280-
9281/2014
(N.C. Santhosh)
CA @ SLP(C)
No. 34878/2013
(Sayeda F.
Banao)
CA @ SLP(C)
No.
24169/2015
(Sri Santosh)
Deceased Govt.
servant
N.H. Chandra
Gowda
Shakila Jabeena
Ara Begum
M. Indranna
Reddy
Dependant/Appoi N.C. Santhosh Sayeda Farheen Sri Santosh
Page 4 of 16
ntee Banao
Date of Birth 25.6.1982 12.5.1982 24.3.1983
Parents Death 25.1.1998 24.5.1994 11.11.1998
Minor’s Majority 25.6.2000 12.5.2000 24.3.2001
Application for
compassionate
appointment.
First, mother
applied on
28.2.1998. Then
after attaining
majority
appellant applied
on 29.06.2000.
First father
applied but was
rejected on
12.6.1997. Then
after attaining
majority
appellant applied
on 25.09.2000.
1.7.2001
Appointment 25.8.2000 20.9.2001 14.12.2004
Removal 4.11.2003 I. 15.6.2005 but
reinstated on
4.01.2006 on
Tribunal’s order.
II. Removed
again on
28.12.2006 and
relieved on
2.1.2007 on
disciplinary
ground
18.2.2007
Karnataka
Administrative
Tribunal
2.7.2008 21.4.2009 –
Disciplinary
action not
warranted but
termination
upheld for
unmerited
appointment.
15.6.2011
Bangalore High
Court
22.5.2012 (W.P.)
and 9.11.2012
(Review)
14.8.2013 2.12.2011
Page 5 of 16
8.1 Some additional aspect needs to be noticed to complete the
factual details pertaining to the appeal arising out of the SLP(C) No.
34878/2013 filed by Sayeda F. Banao. In this case, on the death of
the appellant’s mother on 24.5.1994, first, a request was made by the
appellant’s father to provide him appointment on compassionate
ground which however, was rejected by the authorities on 12.6.1997.
Thereafter, the appellant after attaining majority on 12.5.2000 made an
application for compassionate appointment on 25.9.2000 and was
appointed as a Second Division Assistant on 20.9.2001. She was
served with a show cause notice dated 2.6.2005 on the ground that
she had not attained the age of 18 years within one year from the date
of death of the government servant and accordingly, her service was
terminated vide Order dated 15.6.2005.
8.2 Challenging the order of termination, the appellant filed
application before the Tribunal. The Tribunal vide order dated
20.10.2005 set aside the termination order holding that the service of
the appellant was terminated without holding proper enquiry under
Rule 11 of Karnataka Civil Services (Classification, Control and
Appeal) Rules, 1957 and directed her reinstatement, reserving liberty
to the State in accordance with law.
Page 6 of 16
8.3 Pursuant to the order of the Tribunal, the appellant was
reinstated in service on 04.01.2006. Thereafter, an enquiry was
initiated against her under Rule 11 of the said Rules alleging
misconduct and misrepresentation of her age at the time of
submission of her application seeking appointment on compassionate
ground. The appellant was then removed from the service by order
dated 28.12.2006 and when her appeal was rejected by the Appellate
Authority on 30.08.2007, she again approached the Tribunal. In her
OA No.4901/2007, the Tribunal vide its order dated 21.04.2009 found
that there was no misconduct on the part of the appellant.
Nevertheless the Tribunal affirmed the cancellation of the appointment
with the finding that the appointment was made de hors the amended
Rule 5 of the KCS (Appointment on Compassionate Grounds) Rules
and thus, the cancellation of appointment was found to be justified by
the Tribunal. The appellant’s review petition was also dismissed by
order dated 03.12.2009. The resultant writ petition filed by the
appellant challenging cancellation of her appointment and the order of
the Tribunal were dismissed, by the High Court under the impugned
judgment dated 14.08.2013.
Page 7 of 16
8.4 Though, certain additional factual details are seen in the appeal
relating to Sayeda Farheen Banao, but core issue is no different from
the other cases. The question here too is whether her appointment on
compassionate ground, was in violation of the Karnataka Civil
Services (Appointment on Compassionate Ground) Rules, 1998.
9. The action taken by the respondents in cancellation of
appointment is under the provisions of the Karnataka Civil Services
(Appointment on Compassionate Grounds) Rules, 1996 and therefore
relevant Rules are extracted hereinbelow:-
Unamended Rule 5
“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.”
Following amendment w.e.f. 1.04.1999 the proviso to Rule 5
reads:-
“....................................................................................
Provided that in the case of a minor, he must 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.
Page 8 of 16
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.”
Following the 28.05.2002 amendment, Rule 9(3) reads as
under:-
“.....................................................................................
9(3) : All applications for appointment on compassionate grounds
made between the 13th day of September 1996 and the date of
commencement of the Karnataka Civil Services (Appointment on
Compassionate Grounds) 3rd Amendment Rules, 2002 by the
dependents of Government servants who died on or after 20th
October 1989 (other than the application made by such dependents
after the first day of April, 1999 and till the date of such
commencement in contravention of the first proviso to Rule 5 which
are :
(i) Rejected on the ground that they were not made within
the period specified in Rule 5, or
(ii) Pending on such date of commencement, shall be
deemed to have been made within the period specified under
Rule 5 and shall be reconsidered or as the case may be
considered for appointment subject to other provisions of these
Rules.”
Page 9 of 16
10. While Rule 5 as it originally stood, enabled a minor dependant to
apply within one year after attaining majority, the Rule making
authority with the amendment effected from 01.04.1999 stipulated an
outer limit of one year from the date of death of the government
servant for making application for compassionate appointment. The
validity of the amended Rules is not challenged in any of the present
proceedings. Following the amendment the norms clearly suggest that
the earlier provision which enabled a minor dependant to apply on
attaining majority (may be years after the death of the government
servant), has been done away with. The object of the amended
provision is to ensure that no application is filed beyond one year of
the death of the government employee. The consequence of
prohibiting application by a minor beyond one year from the date of
death of the parent can only mean that the appellants were
undeserving beneficiaries of compassionate appointment as they
attained majority well beyond one year of the death of their respective
parents.
11. In all these cases, when the government employee died, the
appellants were minor and they had turned 18, well beyond one year
of death of the parent. As can be seen from the details in the chart,
the dependants attained majority after a gap of 2-6 years from the
respective date of death of their parents and then they applied for
Page 10 of 16
appointment. By the time, the dependent children turned 18, the
amended provisions became operational w.e.f. 01.04.1999. As such
their belated application for compassionate appointment should have
been rejected at the threshold as being not in conformity with proviso
to Rule 5. The appellants applied for compassionate appointment
(after attainment of majority), well beyond the stipulated period of one
year from the date of death of the parent, and therefore, those
applications should not have been entertained being in contravention
of Rules.
12. The provision of the Karnataka Civil Services (Appointment on
Compassionate Grounds) Rules, 1996 was considered in
Commissioner of Public Instructions and Others vs K.R. Vishwanath1
.
Speaking for the division bench, Dr. Justice Arijit Pasayat noted that
the effect of the amended second proviso is that, unless the
application is pending at the time of commencement of the
Amendment Rules, the same can have no bearing on the claim for
compassionate appointment. Thus, belated application filed by the
dependant on attaining majority beyond one year from the date of
death of the government employee would not be a valid application,
consistent with the provisions of the Rules.
1
(2005) 7 SCC 206
Page 11 of 16
13. Insofar as the appellant’s claim to legitimacy of appointment on
the basis of Rule 9(3) of the Rules, a reading of Rule 9(3) suggests
that it is a transitory provision granting extension of time for applying
for compassionate appointment. But the transitory provision excludes
application filed in contravention of Rule 5, as amended in 1999. In
other words, applications filed by minor dependants who had not
attained majority within one year from the date of death of the
government servants will be in contravention of Rule 5. Therefore, we
are of the considered view that the cases of the appellants are not
covered by the transitory provision of Rule 9(3) introduced by the
notification dated 28.5.2002.
14. It is well settled that for all government vacancies equal
opportunity should be provided to all aspirants as is mandated under
Articles 14 and 16 of the Constitution. However appointment on
compassionate ground offered to a dependant of a deceased
employee is an exception to the said norms. In Steel Authority of India
Limited vs. Madhusudan Das & Ors.2
It was remarked accordingly that
compassionate appointment is a concession and not a right and the
criteria laid down in the Rules must be satisfied by all aspirant.
2
(2008) 15 SCC 560
Page 12 of 16
15. This Court in SBI vs. Raj Kumar3
while reiterating that no
aspirant has a vested right to claim compassionate appointment,
declared that the norms that are in force, when the application is
actually considered, will be applicable. The employer’s right to modify
the scheme depending on its policies was recognized in this judgment.
Similarly in MCB Gramin Bank vs. Chakrawarti Singh4
this Court
reiterated that compassionate appointment has to be considered in
accordance with the prevalent scheme and no aspirant can claim that
his case should be considered as per the scheme existing on the date
of death of the Government employee.
16. However in Canara Bank & Anr. vs. M. Mahesh Kumar 5
in the
context of major shift in policy, whereunder, instead of compassionate
appointment (envisaged by the scheme dated 8.5.1993), ex gratia
payment was proposed (under the circular dated 14.02.2005), the
Court adopted a different approach. Noticing the extinguishment of,
the right to claim appointment, this Court held the “dying in harness
scheme” which was prevalent on the death of the employee, be the
basis for consideration.
3
(2010) 11 SCC 661
4
(2014) 13 SCC 583
5
(2015) 7 SCC 412
Page 13 of 16
17. A two judges bench headed by Justice Uday U. Lalit noticed the
Supreme Court’s view in SBI vs. Raj Kumar (supra) and MCB Gramin
Bank vs. Chakrawarti Singh (supra) on one side and the contrary view
in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) and felt the
necessity of resolution of the conflicting question on whether the
norms applicable on the date of death or on the date of consideration
of application should apply. Accordingly, in State Bank of India & Ors.
vs. Sheo Shankar Tewari6
the Court referred the matter for
consideration by a larger Bench so that the conflicting views could be
reconciled.
18. The above discussion suggest that the view taken in Canara
Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the
contrary view of the coordinate bench, in the two earlier judgments.
Therefore, notwithstanding the strong reliance placed by the
appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar
(supra) as also the opinion of the learned Single Judge of the
Karnataka High Court in Uday Krishna Naik vs. State of Karnataka &
Ors.7
, it can not be said that the appellants claim should be
considered under the unamended provisions of the Rules prevailing on
the date of death of the Government employee.
6
(2019) 5 SCC 600
7 MANU/KA/0203/1999 (Writ Petition No.37931 of 1998)
Page 14 of 16
19. In the most recent judgment in State of Himachal Pradesh & Anr.
vs. Shashi Kumar8
the earlier decisions governing the principles of
compassionate appointment were discussed and analysed. Speaking
for the bench, Dr. Justice D.Y. Chandrachud reiterated that
appointment to any public post in the service of the State has to be
made on the basis of principles in accord with Articles 14 and 16 of the
Constitution and compassionate appointment is an exception to the
general rule. The Dependent of a deceased government employee are
made eligible by virtue of the policy on compassionate appointment
and they must fulfill the norms laid down by the State’s policy.
20. Applying the law governing compassionate appointment culled
out from the above cited judgments, our opinion on the point at issue
is that the norms, prevailing on the date of consideration of the
application, should be the basis for consideration of claim for
compassionate appointment. A dependent of a government employee,
in the absence of any vested right accruing on the death of the
government employee, can only demand consideration of his/her
application. He is however disentitled to seek consideration in
accordance with the norms as applicable, on the day of death of the
government employee.
8
(2019) 3 SCC 653
Page 15 of 16
21. In view of the foregoing opinion, we endorse the Tribunal’s view
as affirmed by the High Court of Karnataka to the effect that the
appellants were ineligible for compassionate appointment when their
applications were considered and the unamended provisions of Rule 5
of the Rules will not apply to them. Since no infirmity is found in the
impugned judgments, the appeals are found devoid of merit and the
same are dismissed.
………………………J.
[R. BANUMATHI]
………
………………J.
[A. S. BOPANNA]
………………………J.
[HRISHIKESH ROY]
NEW DELHI
MARCH 4, 2020
Page 16 of 16
19. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar8 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State’s policy. 20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee. 8 (2019) 3 SCC 653 Page 15 of 16 21. In view of the foregoing opinion, we endorse the Tribunal’s view as affirmed by the High Court of Karnataka to the effect that the appellants were ineligible for compassionate appointment when their applications were considered and the unamended provisions of Rule 5 of the Rules will not apply to them. Since no infirmity is found in the impugned judgments, the appeals are found devoid of merit and the same are dismissed.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 9280-9281 OF 2014
N.C. Santhosh Appellant(s)
Versus
State of Karnataka & Ors. Respondent(s)
WITH
CIVIL APPEAL NO. 1996 OF 2020
(Arising out of SLP(C) No. 34878/2013
CIVIL APPEAL NO. 1997 OF 2020
(Arising out of SLP(C) No. 24169/2015
J U D G M E N T
Hrishikesh Roy, J.
Leave granted in SLP(C) No. 34878/2013 and SLP(C) No.
24169/2015
2. The appellants here were the beneficiary of compassionate
appointments. But on the discovery that their appointments were made
dehors the provisions of the Karnataka Civil Services (Appointment on
Compassionate Grounds) Rules, 1996 as amended w.e.f. 1.04.1999,
Page 1 of 16
(hereinafter referred to as the “Rules”), those appointments came to
be cancelled. The amendment to the proviso to Rule 5 stipulated that
in case of a minor dependant of the deceased government employee,
he/she must apply within one year from the date of death of the
government servant and he must have attained the age of eighteen
years on the day of making the application. Before amendment, the
minor dependant was entitled to apply till one year of attaining
majority.
3. When their service was terminated the aggrieved appointees
approached the Karnataka Administrative Tribunal at Bangalore
(hereinafter referred to as the “Tribunal”). But the Tribunal found that
appellants were ineligible for appointment under the Rules and
accordingly dismissed the related applications. The resultant writ
petitions were dismissed by the High Court of Karnataka at Bangalore,
leading to the present appeals.
4. We have heard Ms. Kiran Suri, learned Senior Counsel
appearing for the appellant in the Appeal arising from the SLP (C)
No.34878 of 2013, Mr. Shanthkumar V. Mahale, learned counsel
appearing in C.A. Nos.9280-9281 of 2014 and in the appeal arising out
of the SLP (C) No.24169 of 2015. The State of Karnataka is
Page 2 of 16
represented by Mr. V.N. Raghupathy and Mr S Padhi, the Learned
Counsel in the respective appeals.
5. Assailing the adverse decision of the Tribunal as affirmed by the
High Court, the appellants contend that they have been legitimately
appointed on compassionate basis and have rendered service without
any blemish and therefore, the authority should not be permitted to
apply the amended provisions and cancel the appointment on the
ground that the appointees were ineligible to apply for compassionate
appointment. Ms. Kiran Suri, the learned senior counsel argues that
Rule 5 is only procedural and is not mandatory and therefore,
compassionate appointment of the dependant children who attained
majority beyond one year of death of the government employee,
should not be construed to be invalid. According to the appellants,
their cases have to be considered under the unamended Rules which
permits a minor dependant to apply for compassionate appointment
within one year of attaining majority. Describing Rule 9 as a
transitional provision whereunder the period for making application has
been changed through various amendments, the counsel for the
appellants argue that retrospective application of the amended
provisions should not lead to cancellation of appointment. Moreover,
since compassionate appointment was offered without any
misrepresentation by the beneficiary, the appellants should not be
Page 3 of 16
rendered jobless now on the ground of non-eligibility of the
appointees.
6. The respondents, on the other hand, argue that the norms
applicable at the stage of consideration is relevant and here as the
appellants had not attained majority within one year from the death of
the government employee, they were ineligible to seek compassionate
appointment under the amended provisions of the compassionate
Rules. The Government counsel contend that since compassionate
appointment is an exception to the general Rule governing
appointment in the service of the State, the same has to be in
conformity with the prescribed Rules and those ineligible under the
Rules cannot ask for continuation of the illegal appointment. The
respondents also argue that the government has the power to rectify
the mistake and to recall the illegal appointment orders as the
appellants were appointed erroneously, despite there ineligibility.
7. The essential details of the appellants can be seen in the
following chart:-
Case C.A. Nos. 9280-
9281/2014
(N.C. Santhosh)
CA @ SLP(C)
No. 34878/2013
(Sayeda F.
Banao)
CA @ SLP(C)
No.
24169/2015
(Sri Santosh)
Deceased Govt.
servant
N.H. Chandra
Gowda
Shakila Jabeena
Ara Begum
M. Indranna
Reddy
Dependant/Appoi N.C. Santhosh Sayeda Farheen Sri Santosh
Page 4 of 16
ntee Banao
Date of Birth 25.6.1982 12.5.1982 24.3.1983
Parents Death 25.1.1998 24.5.1994 11.11.1998
Minor’s Majority 25.6.2000 12.5.2000 24.3.2001
Application for
compassionate
appointment.
First, mother
applied on
28.2.1998. Then
after attaining
majority
appellant applied
on 29.06.2000.
First father
applied but was
rejected on
12.6.1997. Then
after attaining
majority
appellant applied
on 25.09.2000.
1.7.2001
Appointment 25.8.2000 20.9.2001 14.12.2004
Removal 4.11.2003 I. 15.6.2005 but
reinstated on
4.01.2006 on
Tribunal’s order.
II. Removed
again on
28.12.2006 and
relieved on
2.1.2007 on
disciplinary
ground
18.2.2007
Karnataka
Administrative
Tribunal
2.7.2008 21.4.2009 –
Disciplinary
action not
warranted but
termination
upheld for
unmerited
appointment.
15.6.2011
Bangalore High
Court
22.5.2012 (W.P.)
and 9.11.2012
(Review)
14.8.2013 2.12.2011
Page 5 of 16
8.1 Some additional aspect needs to be noticed to complete the
factual details pertaining to the appeal arising out of the SLP(C) No.
34878/2013 filed by Sayeda F. Banao. In this case, on the death of
the appellant’s mother on 24.5.1994, first, a request was made by the
appellant’s father to provide him appointment on compassionate
ground which however, was rejected by the authorities on 12.6.1997.
Thereafter, the appellant after attaining majority on 12.5.2000 made an
application for compassionate appointment on 25.9.2000 and was
appointed as a Second Division Assistant on 20.9.2001. She was
served with a show cause notice dated 2.6.2005 on the ground that
she had not attained the age of 18 years within one year from the date
of death of the government servant and accordingly, her service was
terminated vide Order dated 15.6.2005.
8.2 Challenging the order of termination, the appellant filed
application before the Tribunal. The Tribunal vide order dated
20.10.2005 set aside the termination order holding that the service of
the appellant was terminated without holding proper enquiry under
Rule 11 of Karnataka Civil Services (Classification, Control and
Appeal) Rules, 1957 and directed her reinstatement, reserving liberty
to the State in accordance with law.
Page 6 of 16
8.3 Pursuant to the order of the Tribunal, the appellant was
reinstated in service on 04.01.2006. Thereafter, an enquiry was
initiated against her under Rule 11 of the said Rules alleging
misconduct and misrepresentation of her age at the time of
submission of her application seeking appointment on compassionate
ground. The appellant was then removed from the service by order
dated 28.12.2006 and when her appeal was rejected by the Appellate
Authority on 30.08.2007, she again approached the Tribunal. In her
OA No.4901/2007, the Tribunal vide its order dated 21.04.2009 found
that there was no misconduct on the part of the appellant.
Nevertheless the Tribunal affirmed the cancellation of the appointment
with the finding that the appointment was made de hors the amended
Rule 5 of the KCS (Appointment on Compassionate Grounds) Rules
and thus, the cancellation of appointment was found to be justified by
the Tribunal. The appellant’s review petition was also dismissed by
order dated 03.12.2009. The resultant writ petition filed by the
appellant challenging cancellation of her appointment and the order of
the Tribunal were dismissed, by the High Court under the impugned
judgment dated 14.08.2013.
Page 7 of 16
8.4 Though, certain additional factual details are seen in the appeal
relating to Sayeda Farheen Banao, but core issue is no different from
the other cases. The question here too is whether her appointment on
compassionate ground, was in violation of the Karnataka Civil
Services (Appointment on Compassionate Ground) Rules, 1998.
9. The action taken by the respondents in cancellation of
appointment is under the provisions of the Karnataka Civil Services
(Appointment on Compassionate Grounds) Rules, 1996 and therefore
relevant Rules are extracted hereinbelow:-
Unamended Rule 5
“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.”
Following amendment w.e.f. 1.04.1999 the proviso to Rule 5
reads:-
“....................................................................................
Provided that in the case of a minor, he must 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.
Page 8 of 16
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.”
Following the 28.05.2002 amendment, Rule 9(3) reads as
under:-
“.....................................................................................
9(3) : All applications for appointment on compassionate grounds
made between the 13th day of September 1996 and the date of
commencement of the Karnataka Civil Services (Appointment on
Compassionate Grounds) 3rd Amendment Rules, 2002 by the
dependents of Government servants who died on or after 20th
October 1989 (other than the application made by such dependents
after the first day of April, 1999 and till the date of such
commencement in contravention of the first proviso to Rule 5 which
are :
(i) Rejected on the ground that they were not made within
the period specified in Rule 5, or
(ii) Pending on such date of commencement, shall be
deemed to have been made within the period specified under
Rule 5 and shall be reconsidered or as the case may be
considered for appointment subject to other provisions of these
Rules.”
Page 9 of 16
10. While Rule 5 as it originally stood, enabled a minor dependant to
apply within one year after attaining majority, the Rule making
authority with the amendment effected from 01.04.1999 stipulated an
outer limit of one year from the date of death of the government
servant for making application for compassionate appointment. The
validity of the amended Rules is not challenged in any of the present
proceedings. Following the amendment the norms clearly suggest that
the earlier provision which enabled a minor dependant to apply on
attaining majority (may be years after the death of the government
servant), has been done away with. The object of the amended
provision is to ensure that no application is filed beyond one year of
the death of the government employee. The consequence of
prohibiting application by a minor beyond one year from the date of
death of the parent can only mean that the appellants were
undeserving beneficiaries of compassionate appointment as they
attained majority well beyond one year of the death of their respective
parents.
11. In all these cases, when the government employee died, the
appellants were minor and they had turned 18, well beyond one year
of death of the parent. As can be seen from the details in the chart,
the dependants attained majority after a gap of 2-6 years from the
respective date of death of their parents and then they applied for
Page 10 of 16
appointment. By the time, the dependent children turned 18, the
amended provisions became operational w.e.f. 01.04.1999. As such
their belated application for compassionate appointment should have
been rejected at the threshold as being not in conformity with proviso
to Rule 5. The appellants applied for compassionate appointment
(after attainment of majority), well beyond the stipulated period of one
year from the date of death of the parent, and therefore, those
applications should not have been entertained being in contravention
of Rules.
12. The provision of the Karnataka Civil Services (Appointment on
Compassionate Grounds) Rules, 1996 was considered in
Commissioner of Public Instructions and Others vs K.R. Vishwanath1
.
Speaking for the division bench, Dr. Justice Arijit Pasayat noted that
the effect of the amended second proviso is that, unless the
application is pending at the time of commencement of the
Amendment Rules, the same can have no bearing on the claim for
compassionate appointment. Thus, belated application filed by the
dependant on attaining majority beyond one year from the date of
death of the government employee would not be a valid application,
consistent with the provisions of the Rules.
1
(2005) 7 SCC 206
Page 11 of 16
13. Insofar as the appellant’s claim to legitimacy of appointment on
the basis of Rule 9(3) of the Rules, a reading of Rule 9(3) suggests
that it is a transitory provision granting extension of time for applying
for compassionate appointment. But the transitory provision excludes
application filed in contravention of Rule 5, as amended in 1999. In
other words, applications filed by minor dependants who had not
attained majority within one year from the date of death of the
government servants will be in contravention of Rule 5. Therefore, we
are of the considered view that the cases of the appellants are not
covered by the transitory provision of Rule 9(3) introduced by the
notification dated 28.5.2002.
14. It is well settled that for all government vacancies equal
opportunity should be provided to all aspirants as is mandated under
Articles 14 and 16 of the Constitution. However appointment on
compassionate ground offered to a dependant of a deceased
employee is an exception to the said norms. In Steel Authority of India
Limited vs. Madhusudan Das & Ors.2
It was remarked accordingly that
compassionate appointment is a concession and not a right and the
criteria laid down in the Rules must be satisfied by all aspirant.
2
(2008) 15 SCC 560
Page 12 of 16
15. This Court in SBI vs. Raj Kumar3
while reiterating that no
aspirant has a vested right to claim compassionate appointment,
declared that the norms that are in force, when the application is
actually considered, will be applicable. The employer’s right to modify
the scheme depending on its policies was recognized in this judgment.
Similarly in MCB Gramin Bank vs. Chakrawarti Singh4
this Court
reiterated that compassionate appointment has to be considered in
accordance with the prevalent scheme and no aspirant can claim that
his case should be considered as per the scheme existing on the date
of death of the Government employee.
16. However in Canara Bank & Anr. vs. M. Mahesh Kumar 5
in the
context of major shift in policy, whereunder, instead of compassionate
appointment (envisaged by the scheme dated 8.5.1993), ex gratia
payment was proposed (under the circular dated 14.02.2005), the
Court adopted a different approach. Noticing the extinguishment of,
the right to claim appointment, this Court held the “dying in harness
scheme” which was prevalent on the death of the employee, be the
basis for consideration.
3
(2010) 11 SCC 661
4
(2014) 13 SCC 583
5
(2015) 7 SCC 412
Page 13 of 16
17. A two judges bench headed by Justice Uday U. Lalit noticed the
Supreme Court’s view in SBI vs. Raj Kumar (supra) and MCB Gramin
Bank vs. Chakrawarti Singh (supra) on one side and the contrary view
in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) and felt the
necessity of resolution of the conflicting question on whether the
norms applicable on the date of death or on the date of consideration
of application should apply. Accordingly, in State Bank of India & Ors.
vs. Sheo Shankar Tewari6
the Court referred the matter for
consideration by a larger Bench so that the conflicting views could be
reconciled.
18. The above discussion suggest that the view taken in Canara
Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the
contrary view of the coordinate bench, in the two earlier judgments.
Therefore, notwithstanding the strong reliance placed by the
appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar
(supra) as also the opinion of the learned Single Judge of the
Karnataka High Court in Uday Krishna Naik vs. State of Karnataka &
Ors.7
, it can not be said that the appellants claim should be
considered under the unamended provisions of the Rules prevailing on
the date of death of the Government employee.
6
(2019) 5 SCC 600
7 MANU/KA/0203/1999 (Writ Petition No.37931 of 1998)
Page 14 of 16
19. In the most recent judgment in State of Himachal Pradesh & Anr.
vs. Shashi Kumar8
the earlier decisions governing the principles of
compassionate appointment were discussed and analysed. Speaking
for the bench, Dr. Justice D.Y. Chandrachud reiterated that
appointment to any public post in the service of the State has to be
made on the basis of principles in accord with Articles 14 and 16 of the
Constitution and compassionate appointment is an exception to the
general rule. The Dependent of a deceased government employee are
made eligible by virtue of the policy on compassionate appointment
and they must fulfill the norms laid down by the State’s policy.
20. Applying the law governing compassionate appointment culled
out from the above cited judgments, our opinion on the point at issue
is that the norms, prevailing on the date of consideration of the
application, should be the basis for consideration of claim for
compassionate appointment. A dependent of a government employee,
in the absence of any vested right accruing on the death of the
government employee, can only demand consideration of his/her
application. He is however disentitled to seek consideration in
accordance with the norms as applicable, on the day of death of the
government employee.
8
(2019) 3 SCC 653
Page 15 of 16
21. In view of the foregoing opinion, we endorse the Tribunal’s view
as affirmed by the High Court of Karnataka to the effect that the
appellants were ineligible for compassionate appointment when their
applications were considered and the unamended provisions of Rule 5
of the Rules will not apply to them. Since no infirmity is found in the
impugned judgments, the appeals are found devoid of merit and the
same are dismissed.
………………………J.
[R. BANUMATHI]
………
………………J.
[A. S. BOPANNA]
………………………J.
[HRISHIKESH ROY]
NEW DELHI
MARCH 4, 2020
Page 16 of 16
