N. C. SANTHOSH versus STATE OF KARNATAKA & ORS. on 4 March 2020

1. Leave granted in SLP(C) No. 34878/2013 and SLP(C) No.24169/2015.

2. The appellants here were the beneficiary of compassionateappointments. But on the discovery that their appointments were madeEdehors the provisions of the Karnataka Civil Services (Appointment onCompassionate Grounds) Rules, 1996 as amended w.e.f. 1.04.1999,(hereinafter referred to as the “Rules”), those appointments came to becancelled. The amendment to the proviso to Rule 5 stipulated that incase of a minor dependant of the deceased government employee, he/Fshe must apply within one year from the date of death of the governmentservant and he must have attained the age of eighteen years on the dayof making the application. Before amendment, the minor dependant wasentitled to apply till one year of attaining majority.

3. When their service was terminated the aggrieved appointeesGapproached the Karnataka Administrative Tribunal at Bangalore(hereinafter referred to as the “Tribunal”). But the Tribunal found thatappellants were ineligible for appointment under the Rules and accordinglydismissed the related applications. The resultant writ petitions weredismissed by the High Court of Karnataka at Bangalore, leading to thepresent appeals.H

N. C. SANTHOSH v. STATE OF KARNATAKA & ORS.[HRISHIKESH ROY, J.]

4. We have heard Ms. Kiran Suri, learned Senior Counselappearing for the appellant in the Appeal arising from the SLP (C)No.34878 of 2013, Mr. Shanthkumar V. Mahale, learned counselappearing in C.A. Nos.9280-9281 of 2014 and in the appeal arising outof the SLP (C) No.24169 of 2015. The State of Karnataka is representedby Mr. V.N. Raghupathy and Mr S Padhi, the Learned Counsel in therespective appeals.

5. Assailing the adverse decision of the Tribunal as affirmed bythe High Court, the appellants contend that they have been legitimatelyappointed on compassionate basis and have rendered service withoutany blemish and therefore, the authority should not be permitted to applythe amended provisions and cancel the appointment on the ground thatthe appointees were ineligible to apply for compassionate appointment.Ms. Kiran Suri, the learned senior counsel argues that Rule 5 is onlyprocedural and is not mandatory and therefore, compassionateappointment of the dependant children who attained majority beyondone year of death of the government employee, should not be construedto be invalid. According to the appellants, their cases have to be consideredunder the unamended Rules which permits a minor dependant to applyfor compassionate appointment within one year of attaining majority.Describing Rule 9 as a transitional provision whereunder the period formaking application has been changed through various amendments, thecounsel for the appellants argue that retrospective application of theamended provisions should not lead to cancellation of appointment.Moreover, since compassionate appointment was offered without anymisrepresentation by the beneficiary, the appellants should not berendered jobless now on the ground of non-eligibility of the appointees.

6. The respondents, on the other hand, argue that the normsapplicable at the stage of consideration is relevant and here as theappellants had not attained majority within one year from the death ofthe government employee, they were ineligible to seek compassionateappointment under the amended provisions of the compassionate Rules.The Government counsel contend that since compassionate appointmentis an exception to the general Rule governing appointment in the serviceof the State, the same has to be in conformity with the prescribed Rulesand those ineligible under the Rules cannot ask for continuation of theillegal appointment. The respondents also argue that the governmenthas the power to rectify the mistake and to recall the illegal appointment A

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Aorders as the appellants were appointed erroneously, despite thereineligibility.

7. The essential details of the appellants can be seen in thefollowing chart:- G8.1 Some additional aspect needs to be noticed to complete thefactual 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 theappellant’s mother on 24.5.1994, first, a request was made by theappellant’s father to provide him appointment on compassionate groundwhich however, was rejected by the authorities on 12.6.1997. Thereafter,

N. C. SANTHOSH v. STATE OF KARNATAKA & ORS.

[HRISHIKESH ROY, J.]

the appellant after attaining majority on 12.5.2000 made an applicationfor compassionate appointment on 25.9.2000 and was appointed as aSecond Division Assistant on 20.9.2001. She was served with a showcause notice dated 2.6.2005 on the ground that she had not attained theage of 18 years within one year from the date of death of the governmentservant and accordingly, her service was terminated vide Order dated15.6.2005.

8.2 Challenging the order of termination, the appellant filedapplication before the Tribunal. The Tribunal vide order dated 20.10.2005set aside the termination order holding that the service of the appellantwas terminated without holding proper enquiry under Rule 11 ofKarnataka Civil Services (Classification, Control and Appeal) Rules, 1957and directed her reinstatement, reserving liberty to the State inaccordance with law.

8.3 Pursuant to the order of the Tribunal, the appellant wasreinstated in service on 04.01.2006. Thereafter, an enquiry was initiatedagainst her under Rule 11 of the said Rules alleging misconduct andmisrepresentation of her age at the time of submission of her applicationseeking appointment on compassionate ground. The appellant was thenremoved from the service by order dated 28.12.2006 and when her appealwas rejected by the Appellate Authority on 30.08.2007, she againapproached the Tribunal. In her OA No.4901/2007, the Tribunal vide itsorder dated 21.04.2009 found that there was no misconduct on the partof the appellant. Nevertheless the Tribunal affirmed the cancellation ofthe appointment with the finding that the appointment was made de horsthe amended Rule 5 of the KCS (Appointment on CompassionateGrounds) Rules and thus, the cancellation of appointment was found tobe justified by the Tribunal. The appellant’s review petition was alsodismissed by order dated 03.12.2009. The resultant writ petition filed bythe appellant challenging cancellation of her appointment and the orderof the Tribunal were dismissed, by the High Court under the impugnedjudgment dated 14.08.2013.

8.4 Though, certain additional factual details are seen in the appealrelating to Sayeda Farheen Banao, but core issue is no different fromthe other cases. The question here too is whether her appointment oncompassionate ground, was in violation of the Karnataka Civil Services(Appointment on Compassionate Ground) Rules, 1998.

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9. The action taken by the respondents in cancellation ofappointment is under the provisions of the Karnataka Civil Services(Appointment on Compassionate Grounds) Rules, 1996 and thereforerelevant Rules are extracted hereinbelow:- Unamended Rule 5

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“Every dependant of a deceased Government servant, seekingappointment under these rules shall make an applicationwithin one year from the date of death of the Governmentservant, in such form, as may be notified by the Government,from time to time, to the Head of the Department under whomCthe deceased Government Servant was working.

Provided that in the case of a minor, application shall be madewithin a period of one year after attaining majority.”

Following amendment w.e.f. 1.04.1999 the proviso to Rule 5

reads:-

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Provided that in the case of a minor, he must make anapplication within one year from the date of death of theGovernment servant and he must have attained the age ofeighteen years on the date of making the application.

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Provided further that nothing in the first proviso shall applyto an application made by the dependant of a deceasedGovernment Servant, after attaining majority and which waspending for consideration on the date of commencement ofthe Karnataka Civil Services (Appointment on CompassionateFGrounds) (Amendment) Rules, 1998.”

Following the 28.05.2002 amendment, Rule 9(3) reads as under:- “.....................................................................................

9(3) : All applications for appointment on compassionategrounds made between the 13[th] day of September 1996 andthe date of commencement of the Karnataka Civil Services(Appointment on Compassionate Grounds) 3[rd] AmendmentRules, 2002 by the dependents of Government servants whodied on or after 20[th] October 1989 (other than the applicationmade by such dependents after the first day of April, 1999

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N. C. SANTHOSH v. STATE OF KARNATAKA & ORS.[HRISHIKESH ROY, J.]

and till the date of such commencement in contravention ofthe first proviso to Rule 5 which are :

(i) Rejected on the ground that they were not made withinthe period specified in Rule 5, or

(ii) Pending on such date of commencement, shall bedeemed to have been made within the period specifiedunder Rule 5 and shall be reconsidered or as the case maybe considered for appointment subject to other provisionsof these Rules.”

10. While Rule 5 as it originally stood, enabled a minor dependantto apply within one year after attaining majority, the Rule making authoritywith the amendment effected from 01.04.1999 stipulated an outer limitof one year from the date of death of the government servant for makingapplication for compassionate appointment. The validity of the amendedRules is not challenged in any of the present proceedings. Following theamendment the norms clearly suggest that the earlier provision whichenabled a minor dependant to apply on attaining majority (may be yearsafter the death of the government servant), has been done away with.The object of the amended provision is to ensure that no application isfiled beyond one year of the death of the government employee. Theconsequence of prohibiting application by a minor beyond one year fromthe date of death of the parent can only mean that the appellants wereundeserving beneficiaries of compassionate appointment as they attainedmajority well beyond one year of the death of their respective parents.

11. In all these cases, when the government employee died, theappellants were minor and they had turned 18, well beyond one year ofdeath of the parent. As can be seen from the details in the chart, thedependants attained majority after a gap of 2-6 years from the respectivedate of death of their parents and then they applied for appointment. Bythe time, the dependent children turned 18, the amended provisions becameoperational w.e.f. 01.04.1999. As such their belated application forcompassionate appointment should have been rejected at the thresholdas being not in conformity with proviso to Rule 5. The appellants appliedfor compassionate appointment (after attainment of majority), well beyondthe stipulated period of one year from the date of death of the parent,and therefore, those applications should not have been entertained beingin contravention of Rules.

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A12. The provision of the Karnataka Civil Services (Appointmenton Compassionate Grounds) Rules, 1996 was considered inCommissioner of Public Instructions and Others vs K.R.Vishwanath[1]. Speaking for the division bench, Dr. Justice Arijit Pasayatnoted that the effect of the amended second proviso is that, unless theapplication is pending at the time of commencement of the AmendmentBRules, the same can have no bearing on the claim for compassionateappointment. Thus, belated application filed by the dependant on attainingmajority beyond one year from the date of death of the governmentemployee would not be a valid application, consistent with the provisionsof the Rules.C

13. Insofar as the appellant’s claim to legitimacy of appointmenton the basis of Rule 9(3) of the Rules, a reading of Rule 9(3) suggeststhat it is a transitory provision granting extension of time for applying forcompassionate appointment. But the transitory provision excludesapplication filed in contravention of Rule 5, as amended in 1999. In otherDwords, applications filed by minor dependants who had not attainedmajority within one year from the date of death of the government servantswill be in contravention of Rule 5. Therefore, we are of the consideredview that the cases of the appellants are not covered by the transitoryprovision of Rule 9(3) introduced by the notification dated 28.5.2002.

E14. It is well settled that for all government vacancies equalopportunity should be provided to all aspirants as is mandated underArticles 14 and 16 of the Constitution. However appointment oncompassionate ground offered to a dependant of a deceased employeeis an exception to the said norms. In Steel Authority of India Limitedvs. Madhusudan Das & Ors.[2]It was remarked accordingly thatFcompassionate appointment is a concession and not a right and the criterialaid down in the Rules must be satisfied by all aspirant.

15. This Court in SBI vs. Raj Kumar[3] while reiterating that noaspirant has a vested right to claim compassionate appointment, declaredthat the norms that are in force, when the application is actually considered,Gwill be applicable. The employer’s right to modify the scheme dependingon its policies was recognized in this judgment. Similarly in MCB GraminBank vs. Chakrawarti Singh[4] this Court reiterated that compassionate 1 (2005) 7 SCC 2062 (2008) 15 SCC 5603 (2010) 11 SCC 661H4 (2014) 13 SCC 583

appointment has to be considered in accordance with the prevalentscheme and no aspirant can claim that his case should be considered asper 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 ofcompassionate 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 harnessscheme” which was prevalent on the death of the employee, be thebasis for consideration.

17. A two judges bench headed by Justice Uday U. Lalit noticedthe Supreme Court’s view in SBI vs. Raj Kumar (supra) and MCBGramin Bank vs. Chakrawarti Singh (supra) on one side and thecontrary view in Canara Bank & Anr. vs. M. Mahesh Kumar (supra)and felt the necessity of resolution of the conflicting question on whetherthe norms applicable on the date of death or on the date of considerationof application should apply. Accordingly, in State Bank of India & Ors.vs. Sheo Shankar Tewari[6]the Court referred the matter for considerationby a larger Bench so that the conflicting views could be reconciled.

18. The above discussion suggest that the view taken in CanaraBank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled withthe contrary view of the coordinate bench, in the two earlier judgments.Therefore, notwithstanding the strong reliance placed by the appellantscounsel on Canara Bank & Anr. vs. M. Mahesh Kumar (supra) asalso the opinion of the learned Single Judge of the Karnataka High Courtin Uday Krishna Naik vs. State of Karnataka & Ors.[7], it can not besaid that the appellants claim should be considered under the unamendedprovisions of the Rules prevailing on the date of death of the Governmentemployee.

19. In the most recent judgment in State of Himachal Pradesh& Anr. vs. Shashi Kumar[8]the earlier decisions governing the principlesof compassionate appointment were discussed and analysed. Speakingfor the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment 5 (2015) 7 SCC 412

6 (2019) 5 SCC 600

7 MANU/KA/0203/1999 (Writ Petition No.37931 of 1998)

8 (2019) 3 SCC 653

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Ato any public post in the service of the State has to be made on the basisof principles in accord with Articles 14 and 16 of the Constitution andcompassionate appointment is an exception to the general rule. TheDependent of a deceased government employee are made eligible byvirtue of the policy on compassionate appointment and they must fulfillthe norms laid down by the State’s policy.B

20. Applying the law governing compassionate appointment culledout from the above cited judgments, our opinion on the point at issue isthat the norms, prevailing on the date of consideration of the application,should be the basis for consideration of claim for compassionateappointment. A dependent of a government employee, in the absence ofCany vested right accruing on the death of the government employee, canonly demand consideration of his/her application. He is however disentitledto seek consideration in accordance with the norms as applicable, on theday of death of the government employee.

21. In view of the foregoing opinion, we endorse the Tribunal’sDview as affirmed by the High Court of Karnataka to the effect that theappellants were ineligible for compassionate appointment when theirapplications were considered and the unamended provisions of Rule 5of the Rules will not apply to them. Since no infirmity is found in theimpugned judgments, the appeals are found devoid of merit and the sameEare dismissed.

Kalpana K. Tripathy

Appeals dismissed.

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