State Of Jharkhand & Ors vs Shiv Karampal Sahu

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. 3

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 4

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 8

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;

APRIL 15, 2009