IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITION NO.31023 OF 2018 (S-KAT) BETWEEN 1. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS DEPT., OF PUBLIC EDUCATION, CHITRADURGA DISTRICT, CHITRADURGA-577 501.
2. THE BLOCK EDUCATION OFFICER DEPT., OF PUBLIC INSTRUCTION, CHITRADURGA TALUK, CHITRADURGA-577 501.
... PETITIONERS (BY SMT PRATHIMA M S, AGA) AND SRI. HARESH P. R.
S/O. LATE H. RANGAPPA, AGED ABOUT 22 YEARS, R/AT CHIKKALAGATTA, ALAGHATTA POST, VIA SIRGAGERE, CHITRADURGA TALUK AND DISTRICT.
(BY SRI S G BHAGAVAN, ADVOCATE) ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED: 18.08.2017 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU IN APPLICATION NO.7136/2012 (ANNEXURE-A) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, NARAYANA SWAMY J, MADE THE FOLLOWING:
ORDER The applicant/respondent who lost his father on 16.09.2015 made an application for appointment on compassionate grounds. The deceased father was a primary school teacher. The applicant/respondent was born on 09.11.1990 and at the time of death, he was aged about 5 years. The wife of the deceased made an application on 06.08.1996 seeking appointment on behalf of her minor son. An endorsement was issued on 06.08.1997 that he is required to file an application seeking appointment on compassionate grounds within one year from the date of attaining majority. The applicant attained majority on 09.11.2008 and he filed an application seeking appointment on compassionate grounds on 07.08.2009 i.e., within one year from the date of attaining the age of majority. By that time the amendment was brought on 24.11.2000 amending that the application is to be made within one year from the date of death. Placing reliance on the said amendment, the claim of the applicant/respondent was rejected on the ground that when the applicant’s father died he was aged about 5 years and he could not have made the application within one year from the date of death. This endorsement was the subject matter before the Tribunal. The Tribunal placed reliance on the judgment in W.P.No.32699/2002 (S-RES) decided on 03.04.2003, wherein it is held that un-amended Rule shall be applicable in the instant case and the requirement is that application shall be made within a period of one year after attaining age of majority. Against the order passed by the Tribunal, the Government has preferred this petition.
2. The ground taken by the Government is that aims and objects of the Act is to see that dependents of the deceased Government employee should be rescued immediately by providing employment. But the said aim is rendered futile in the instant case, since he has not made application within the time. Relying on the judgment of the Supreme Court in the case of Sanjay Kumar /vs./ State of Bihar and others reported in (2000) 7 SCC 192, it is submitted that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. It is also significant to notice that on the date when the first application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief. In the instant case, no such pleadings are forthcoming in the application made by the applicant before the Tribunal. Hence, the learned Government Advocate appearing for the petitioner submits that this petition be allowed and the order of the Tribunal is to be set aside. It is submitted that no person has any right for consideration of his claim on compassionate ground.
Rightly in this case in the absence of any such pleadings, the applicant/respondent is held to have no hereditary right in the office to consider the case of son or any other dependent.
3. Learned counsel for the respondent/applicant who supported the order and prayed for dismissal of this writ petition by relying on the order passed by this Court in W.P.No.200794/2016 disposed of on 9.08.2016 (The State of Karnataka and others/vs./ P.Jagadish).
4. The said writ petition was dismissed directing the respondent to consider the application forthwith. By considering the existing or prevailing law then, it is submitted that un-amended Rule which existed provides the applicant to make such application within one year on attaining age of majority for appointment. In due compliance, application was made within a period of one year after he attaining the majority on 7.8.2009. The Tribunal has rightly considered and rightly passed an order. Hence, there is no merit and prays for dismissal.
5. Learned counsel relied on the order passed by this Court in Ravikumar/vs./State of Karnataka and another, wherein it is clearly clarified that amendment to the Rule should be retrospective in nature.
6. We have heard the learned counsel for the parties and we have gone through the materials placed on record.
7. Before proceeding further we had to make an observation about the aims and objects of the provision of law. The purpose of particular legislation is to do justice and nothing else. Justice lies to provide an employment to the member of the family which has lost the bread earner. The Hon’ble Supreme Court in the case of Sanjay Kumar /vs./ State of Bihar and others reported in (2000) 7 SCC 194 has held that “This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. It is also significant to notice that on the date when the first application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. This is contended by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.” The said judgment was further referred in the judgment reported in (1998) 5 SCC 192. In the judgment referred to above, it is very clear that the implementation of the provision to see that to rescue the family members who lost the bread earner. In view of the said judgment it is true that the application submitted by the applicant who approached the Tribunal stating that his case should be considered in view of the fact that his bread earner that is his father died while in service. It is pertinent to make observation that death of a Government servant does not create a right to get the appointment on compassionate ground as a hereditary office and while claiming such compassionate appointment the applicant has to satisfy their financial position and penury; and it is not automatic that one should get an appointment when a family member dies in service.
8. The judgment relied by the learned counsel for the respondent/applicant in W.P.No.200794/2016 has been allowed by referring the judgment of the Hon’ble Supreme Court reported in the case of Canara Bank and another /vs./ M.Mahesh Kumar (2015 SAR(Civil) 829), wherein in para 11 it is held as under:
“11. The main question falling for consideration is whether the Scheme passed in 2005 providing for ex-gratia payment or the Scheme then in vogue in 1993 providing for compassionate appointment is applicable to the respondent. Appellant-bank has placed reliance upon the judgment of this Court in Jaspal Kaur’s case (supra) to contend that the respondent’s case cannot be considered on the basis of ‘Dying in Harness Scheme 1993’ when the new Scheme of 2005 providing for ex-gratia payment had been put in place. In Jaspal Kaur’s case (supra), Sukhbir Inder Singh employee of State Bank of India, Record Assistant (Cash & Accounts) passed away on 1.08.1999. Widow of the employee applied for compassionate appointment in State Bank of India on 5.02.2000. On 7.01.2002, the competent authority of the bank rejected the application of Jaspal Kaur in view of the Scheme vis-a-vis the financial position of the family. Against that decision of the competent authority, the respondent filed writ petition before the Punjab and Haryana High Court which has directed to consider the case of Jaspal Kaur by applying the Scheme formulated on 4.08.2005 when her application was made in the year 2000. In that factual matrix, this Court has directed that dispute arising in the year 2000 cannot be decided on the basis of a Scheme that was put in place much after the dispute. By perusal of the judgment in Jaspal Kaur’s case, it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim.”
Referring to the said judgment direction was issued to consider the case of the petitioner and to provide the appointment within a period of two months.
9. In the instant case, the father died in the year 1995 but the application for appointment on compassionate grounds is made on 07.08.2009 on attaining the age of majority. But the amendment was brought on 24.11.2000. The respondents/officials who rejected the application by referring the amendment and assigned reason that the application was not made within one year as it is required in terms of the amended provisions. In this regard we have to hold that unless and until if is specifically mentioned, it is presumed, amendment is prospective in nature. This has been clarified by this Court in Ravikumar’s case, where it has been held that in case of minor the application shall be made within a period of one year after he attaining the age of majority. In view of the said judgment, we have to hold that the application made by the petitioner within one year from the date of attaining the age of majority should have been considered. In the instant case the father of the applicant had died on 16.09.1995 and the application was made on 07.08.2009 and rejection was subsequently shows that the respondent/applicant is survived almost 25 years. Be that as it may, when the judgment is there to the effect that un-amended provisions will have to be considered, we are bound by it. Under the circumstances, we hold that the application of the respondent/applicant will have to be considered under un-amended provisions. The authorities are further directed to ascertain the financial crisis and destitute position before consideration of the case in terms of the Rules. In case applicant satisfies the requirements, the petitioners are directed to consider his claim for compassionate appointment and pass appropriate order within a period of three months from the date of receipt of copy of this order.
Writ petition is disposed of accordingly.
SD/- JUDGE SD/- JUDGE KLY/