The Secretary to Govt. Department of Education (Primary) & Ors. vs Bheemesh Alias Bheemappa

Civil Appeal No. 7752 of 2021 (Arising out of Special Leave Petition (C) No.1564 of 2021)

THE SECRETARY TO GOVT. DEPARTMENT OF EDUCATION (PRIMARY) & ORS. ... Appellant (s)

Versus

BHEEMESH ALIAS BHEEMAPPA ... Respondent(s)

JUDGMENT

V. Ramasubramanian, J.

1. Leave granted.

2. Aggrieved by the order passed by Karnataka State Administrative

Tribunal which was also confirmed by the High Court, directing them to

consider the case of the respondent for appointment on compassionate

grounds, the State has come up with the above appeal. Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2021.12.16 16:27:16 IST Reason: 1

3. We have heard Sh. V. N. Raghupathy, learned counsel appearing

for the appellants and Sh. Jayanth Muthraj, learned senior counsel

appearing for the respondent.

4. Admittedly, the respondent’s sister who was employed as Assistant

Teacher in a Government School, died in harness on 8.12.2010, leaving

behind her surviving, her mother, two brothers and two sisters.

Claiming that the deceased was unmarried and that the mother, two

brothers and two sisters were entirely dependent on her income, the

respondent sought appointment on compassionate grounds. The claim

was rejected by the competent authority by an Order dated

17/21.11.2012, on the ground that the amendment made to the

Karnataka Civil Services (Appointment on Compassionate Grounds) (7 th

amendment) Rules, 2012 on 20.06.2012, extending the benefit of

compassionate appointment to the unmarried dependant brother of an

unmarried female employee, will not be applicable to the case of the

respondent.

5. Aggrieved by the said order of rejection, the respondent moved the

Karnataka State Administrative Tribunal by way of an application in

2 Application No.9099 of 2014. The said application was allowed by the

Tribunal by an Order dated 10.11.2017, on the ground that the

amendment made to the Rules on 20.06.2012 would apply

retrospectively covering the case of the respondent, though his sister

died in harness on 8.12.2010.

6. Challenging the Order of the Karnataka Administrative Tribunal,

the State filed a writ petition before the High Court of Karnataka,

Dharwad Bench. The writ petition was dismissed by the High Court by

an Order dated 20.11.2019, on the basis of the decision of another

Division Bench of the Court, which held that the amendment to the

Rules was retrospective in nature. It is against the said Order that the

State has come up with above appeal.

7. As held by this Court repeatedly, every appointment to a post or

service must be made strictly by adhering to the mandate of Articles 14

and 16 of the Constitution. Appointment on compassionate grounds, is

an exception to the regular mode of recruitment, as it is intended to

provide succor to the family of the deceased Government servant, which

is thrown out of gear both financially and otherwise, due to the sudden

3 death of the Government servant in harness.

8. Admittedly, the appointment on compassionate grounds in the

State of Karnataka is governed by a set of Rules known as Karnataka

Civil Services (Appointment on Compassionate grounds) Rules, 1996,

issued in exercise of the powers conferred by Section 3(1) read with

Section 8 of the Karnataka State Civil Services Act, 1978. The Rules as

they stood, on the date on which the sister of the respondent died in

harness, did not include an unmarried brother, within the definition of

the expression “dependant of a deceased Government servant” under

Rule 2(1)(a) of the said Rules vis­a­vis a deceased female unmarried

Government servant. But it was only by way of an amendment proposed

under a draft Notification dated 20.06.2012 which was given effect

under the final Notification bearing No. DPAR 55 SCA 2012, Bangalore

dated 11.07.2012 that an unmarried brother of a deceased female

unmarried Government servant was included within the definition.

There is no dispute about the fact that the sister of the respondent died

as an unmarried female Government servant, but on 8.12.2010, before

the amendment was made to the Rules.

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9. To hold that the amendment will have retrospective application, the

High Court as well as the Tribunal relied upon a Judgment of the

Division Bench of the High Court of Karnataka in State of Karnataka

vs. Akkamahadevamma and others, decided on 18.11.2010 in Writ

Petition Nos.20914 of 2010 etc. But it should be pointed out at the

outset that the Judgment of the High Court in Akkamahadevamma

arose out of an amendment to the Karnataka Civil Services (General

Recruitment) (57th Amendment) Rules, 2000. By the Amendment made

on 30.03.2010 to the said Rules, grandson, unmarried granddaughter,

daughter in law, widowed daughter and widowed granddaughter were

included within the definition of the expression “members of the family”

under Explanation­2 of Rule 9. But the amendment so made on

30.03.2010 expanding the definition of the expression “members of the

family” was triggered by an Order of the Tribunal which held the

unamended rule to be unconstitutional. It is in that context that the

amendment made on 30.03.2010 to the Rules issued on 23.11.2000 was

held by the High Court to be retrospective in nature. It must also be

5 remembered that the expanded definition was with respect to project

displaced persons. The right conferred upon a project displaced person

stands on a different footing from the entitlement of a person to seek

appointment on compassionate grounds. In any case an amendment

brought forth, on the basis of a Judgment of a Court or Tribunal,

holding the exclusion of certain categories of persons to be violative of

Articles 14 and 16 of the Constitution, may receive an interpretation

such as the one proposed by the High Court in Akkamahadevamma.

But the same may not be applicable to amendments of the nature that

we are concerned with in this case.

10. Incidentally we must point out that the High Court may not be

correct in holding in Akkamahadevamma that the insertion of

additional words in an existing provision would make those additions

part of the original provision with effect from the date on which the

original provision came into force. The rules of interpretation relating to

‘substitution’ are not to be applied to the case of ‘insertion of additional

words’.

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11. Be that as it may, Sh. Jayanth Muthraj, learned senior counsel

appearing for the respondent pleaded that there are two lines of

Judgments of this Court, one taking the view that the Rules/Scheme in

force on the date of death of the Government servant would govern the

field and the other holding that the Rules/scheme in force on the date of

consideration of the claim would govern the field. Unable to reconcile

this conflict, a two Member Bench of this Court, by its Order dated

08.02.2019 in State Bank of India vs. Sheo Shankar Tewari1, has

referred the matter for consideration by a larger Bench. Sh. Jayanth

Muthraj, learned senior counsel therefore made a request that the

present appeal may either be placed along with the reference or await a

decision on the above reference.

12. But we do not consider it necessary to do so. It is no doubt true

that there are, as contended by the learned senior Counsel for the

respondent, two lines of decisions rendered by Benches of equal

strength. But the apparent conflict between those two lines of decisions,

was on account of the difference between an amendment by which an

1 (2019) 5 SCC 600

7 existing benefit was withdrawn or diluted and an amendment by which

the existing benefit was enhanced. The interpretation adopted by this

Court varied depending upon the nature of the amendment. This can be

seen by presenting the decisions referred to by the learned senior

counsel for the respondent in a tabular column as follows:

Citation Scheme in force Modified Decision of this on the date of Scheme which Court death of the came into force Government after death servant State Bank The Scheme of the The 1996 Scheme Rejecting the of India vs. year 1996, which was subsequently claim of the wife Jaspal Kaur made the financial modified by policy of the deceased (2007) 9 SCC condition of the issued in 2005, employee, this 571 family as the main which laid down Court held that [a two criterion, was in few parameters the application of member force, on the date of for determining the dependant Bench] death of the penury. One of made in the year employee in the year the parameters 2000, after the 1999. was to see if the death of the income of the employee in the family had been year 1999, cannot reduced to less be decided on the than 60% of the basis of a Scheme salary drawn by which came into the employee at force in the year the time of death. 2005.

Therefore, the wife of the deceased

8 employee claimed the consideration of the application on the basis of parameters laid down in the policy of the year 2005. State Bank The employee died But with effect This Court held of India Vs. on 1.10.2004 and from 04.08.2005 that the Raj Kumar the applications for a new Scheme for application could (2010) 11 SCC compassionate payment of ex­ be considered 661 appointment were gratia lump­sum only under the [a two made on 6.06.2005 was introduced in new Scheme, as it member and 14.06.2005. On the place of the contained a Bench] the date of death old Scheme. The specific provision and on the date of new Scheme relating to the applications, a contained a pending Scheme known as provision to the applications. compassionate effect that all appointment Scheme applications was in force. pending under the old Scheme will be dealt with only in accordance with the new Scheme. MGB Gramin The employee died However, a new This Court took Bank vs.on 19.04.2006 and Scheme dated the view that the Chakrawarti the application for 12.06.2006 came new Scheme alone Singh appointment made into force on would apply as it on 12.05.2006. A 6.10.2006, contained a (2014) 13 SCC scheme for providing only for specific provision 583 appointment on ex gratia payment which mandated [a two compassionate instead of all pending member grounds was in force compassionate applications to be Bench] on that date. appointment. considered under the new Scheme.

9 Canara The employee died The 1993 Scheme This Court Bank vs. M. on 10.10.1998 and was substituted dismissed the Mahesh the application for by a Scheme for appeals filed by Kumar appointment on payment of ex the Bank on compassionate gratia in the year account of two (2015) 7 SCC grounds, was made 2005. But by the important 412 under the Scheme of time the 2005 distinguishing [a two the year 1993. It was Scheme was features, namely, member rejected on issued, the (i) that the Bench] 30.06.1999. The claimant had application for 1993 Scheme was already appointment on known as “Dying in approached the compassionate Harness Scheme.” High Court of grounds was Kerala by way of rejected in the writ petition and year 1999 and the succeeded before rejection order the learned Single was set aside by Judge vide a the High Court in Judgment dated the year 2003 30.05.2003. The much before the Judgment was compassionate upheld by the appointment Division Bench in Scheme was the year 2006 and substituted by an the matter landed ex gratia Scheme up before this in year 2005; and Court thereafter. (ii) that in the In other words, year 2014, the the Scheme of the original scheme year 2005 came for appointment into force: (i) after on compassionate the rejection of grounds stood the application for revived, when the compassionate civil appeals were appointment decided. under the old scheme; and (ii)

10 after the order of rejection was set aside by the Single Judge of the High Court Indian Bank The employee died A new Scheme In the light of the vs. Promila on 15.01.2004 and was brought into decision in and Another the application for force on Canara Bank vs. (2020) 2 SCC appointment was 24.07.2004 after M. Mahesh 729 made by his minor the death of the Kumar, this [a two son on 24.01.2004. employee. Under Court held that member On these dates, a this Scheme an ex the case of the Bench] circular bearing gratia claimant cannot No.56/79 dated compensation be examined in 4.04.1979 which was provided for, the context of the contained a Scheme subject to certain subsequent for appointment on conditions. After Scheme and that compassionate the coming into since the family grounds was in force of the new had taken full force. But the Scheme, the gratuity under the Scheme provided for claimant was old scheme, they appointment, only directed by the were not entitled for those who do not bank to submit a to seek opt for payment of fresh application compassionate gratuity for the full under the new appointment even term of service of Scheme. The under the old employee who died claimant did not Scheme. in harness. apply under the new Scheme, as he was interested only in compassionate appointment and not monetary benefit. N.C. Santosh Under the existing But by virtue of After taking note vs. State of Scheme referable to an amendment to of a reference

11 Karnataka Rule 5 of the the proviso to made in State and Others Karnataka Civil Rule 5, a minor Bank of India (2020) 7 SCC Services dependant should vs. Sheo 617 (Appointment on apply within one Shankar Tewari (a three Compassionate year from the date to a larger bench, Member Grounds) Rules, of death of the a three member Bench) 1999, a minor Government Bench of this dependant of a servant and must Court held in N.C. deceased have attained the Santosh that the Government age of 18 years on employee may apply the date of norms prevailing within one year from making the on the date of the date of attaining application. consideration of majority. Applying the the application amended should be the provisions, the basis for appointment of consideration of persons already the claim for made on compassionate compassionate appointment. The grounds, were Bench further cancelled by the held that the appointing dependant of a authority which government led to the employee, in the challenge before absence of any this Court. vested right accruing on the date of death of the government employee, can only demand consideration of his application and hence he is disentitled to seek the application of the norms

12 prevailing on the date of death of the government servant.

13. Apart from the aforesaid decisions, our attention was also drawn to

the decision of the three member Bench in State of Madhya Pradesh

vs. Amit Shrivas2. But that case arose out of a claim made by the

dependant of a deceased Government servant, who was originally

appointed on a work charged establishment and who later claimed to

have become a permanent employee. The Court went into the distinction

between an employee with a permanent status and an employee with a

regular status. Despite the claim of the dependant that his father had

become a permanent employee, this Court held in that case that as per

the policy prevailing on the date of death, a work charged/contingency

fund employee was not entitled to compassionate appointment. While

holding so, the Bench reiterated the opinion in Indian Bank vs.

Promila.

14. The aforesaid decision in Amit Shrivas (supra) was followed by a

2 (2020) 10 SCC 496

13 two member Bench of this Court in the yet to be reported decision in the

State of Madhya Pradesh vs. Ashish Awasthi decided on 18.11.2021.

15. Let us now come to the reference pending before the larger Bench.

In State Bank of India vs. Sheo Shankar Tewari (supra), a two

member Bench of this Court noted the apparent conflict between State

Bank of India vs. Raj Kumar and MGB Gramin Bank on the one hand

and Canara Bank vs. M. Mahesh Kumar on the other hand and

referred the matter for the consideration of a larger Bench. The order of

reference to a larger Bench was actually dated 8.02.2019.

16. It was only after the aforesaid reference to a larger Bench that this

Court decided at least four cases, respectively in (i) Indian Bank vs.

Promila; (ii) N.C. Santhosh vs. State of Karnataka; (iii) State of

Madhya Pradesh vs. Amit Shrivas; and (iv) State of Madhya

Pradesh vs. Ashish Awasthi. Out of these four decisions, N.C.

Santosh (supra) was by a three member Bench, which actually took

note of the reference pending before the larger Bench.

17. Keeping the above in mind, if we critically analyse the way in which

14 this Court has proceeded to interpret the applicability of a new or

modified Scheme that comes into force after the death of the employee,

we may notice an interesting feature. In cases where the benefit under

the existing Scheme was taken away or substituted with a lesser benefit,

this Court directed the application of the new Scheme. But in cases

where the benefits under an existing Scheme were enlarged by a

modified Scheme after the death of the employee, this Court applied

only the Scheme that was in force on the date of death of the employee.

This is fundamentally due to the fact that compassionate appointment

was always considered to be an exception to the normal method of

recruitment and perhaps looked down upon with lesser compassion for

the individual and greater concern for the rule of law.

18. If compassionate appointment is one of the conditions of service

and is made automatic upon the death of an employee in harness

without any kind of scrutiny whatsoever, the same would be treated as a

vested right in law. But it is not so. Appointment on compassionate

grounds is not automatic, but subject to strict scrutiny of various

parameters including the financial position of the family, the economic

15 dependence of the family upon the deceased employee and the avocation

of the other members of the family. Therefore, no one can claim to have

a vested right for appointment on compassionate grounds. This is why

some of the decisions which we have tabulated above appear to have

interpreted the applicability of revised Schemes differently, leading to

conflict of opinion. Though there is a conflict as to whether the Scheme

in force on the date of death of the employee would apply or the Scheme

in force on the date of consideration of the application of appointment

on compassionate grounds would apply, there is certainly no conflict

about the underlying concern reflected in the above decisions. Wherever

the modified Schemes diluted the existing benefits, this Court applied

those benefits, but wherever the modified Scheme granted larger

benefits, the old Scheme was made applicable.

19. The important aspect about the conflict of opinion is that it

revolves around two dates, namely, (i) date of death of the employee; and

(ii) date of consideration of the application of the dependant. Out of

these two dates, only one, namely, the date of death alone is a fixed

16 factor that does not change. The next date namely the date of

consideration of the claim, is something that depends upon many

variables such as the date of filing of application, the date of attaining of

majority of the claimant and the date on which the file is put up to the

competent authority. There is no principle of statutory

interpretation which permits a decision on the applicability of a

rule, to be based upon an indeterminate or variable factor. Let us

take for instance a hypothetical case where 2 Government servants die

in harness on January 01, 2020. Let us assume that the dependants of

these 2 deceased Government servants make applications for

appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a

modified Scheme comes into force on June 01, 2020. If the date of

consideration of the claim is taken to be the criteria for determining

whether the modified Scheme applies or not, it will lead to two different

results, one in respect of the person who made the application before

June 1, 2020 and another in respect of the person who applied after

June 01, 2020. In other words, if two employees die on the same date

17 and the dependants of those employees apply on two different dates, one

before the modified Scheme comes into force and another thereafter,

they will come in for differential treatment if the date of application and

the date of consideration of the same are taken to be the deciding factor.

A rule of interpretation which produces different results,

depending upon what the individuals do or do not do, is

inconceivable. This is why, the managements of a few banks, in the

cases tabulated above, have introduced a rule in the modified scheme

itself, which provides for all pending applications to be decided under

the new/modified scheme. Therefore, we are of the considered view that

the interpretation as to the applicability of a modified Scheme should

depend only upon a determinate and fixed criteria such as the date of

death and not an indeterminate and variable factor.

20. Coming to the case on hand, the employee died on 8.12.2010 and

the amendment to the Rules was proposed by way of a draft notification

on 20.06.2012. The final notification was issued on 11.07.2012. Merely

because the application for appointment was taken up for consideration

18 after the issue of the amendment, the respondent could not have sought

the benefit of the amendment. The Judgment of the Division Bench of

the Karnataka High Court in Akkamahadevamma on which the

Tribunal as well as the High Court placed reliance, was not applicable to

the case of compassionate appointments, as the amendment in

Akkamahadevamma came as a result of the existing rule being

declared to be ultra vires Articles 14 and 16 of the Constitution.

21. In view of the above, the appeal is allowed and the impugned order

of the High Court as well as that of the Tribunal are set aside. The

application of the respondent for compassionate appointment shall

stand dismissed. There shall be no order as to costs.

…..…………....................J. (Hemant Gupta)

.…..………......................J (V. Ramasubramanian)

19 DECEMBER 16, 2021 NEW DELHI.

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