THE SECRETARY TO GOVT. DEPARTMENT OF EDUCATION (PRIMARY) & ORS. versus BHEEMESH ALIAS BHEEMAPPA on 16 December 2021

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

v.

BHEEMESH ALIAS BHEEMAPPA

(Civil Appeal No. 7752 of 2021)

DECEMBER 16, 2021

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Service Law: Compassionate appointment – Appointment oncompassionate grounds is not automatic, but subject to strict scrutinyof various parameters including the financial position of the family,the economic dependence of the family upon the deceased employeeand the avocation of the other members of the family – Therefore,no one can claim to have a vested right for appointment oncompassionate grounds – In the instant case, respondent’s sister,employed in Government School, died in harness on 8.12.2010 –Claiming that the deceased was unmarried and that the mother, twobrothers and two sisters were entirely dependent on her income,respondent sought appointment on compassionate grounds – Claimwas rejected by the competent authority by Order dated 17/21.11.2012, on the ground that the amendment made to theKarnataka Civil Services (Appointment on Compassionate Grounds)(7th amendment) Rules, 2012 on 20.06.2012, extending the benefitof compassionate appointment to the unmarried dependant brotherof an unmarried female employee, will not be applicable to the caseof the respondent – Respondent moved the Administrative Tribunalby way of an application which was allowed on the ground that theamendment made to the Rules on 20.06.2012 would applyretrospectively covering the case of the respondent, though his sisterdied in harness on 8.12.2010. Writ petition by State was dismissed– Hence instant appeal – Held: Admittedly, the appointment oncompassionate grounds in the State of Karnataka is governed by aset of Rules known as Karnataka Civil Services (Appointment onCompassionate grounds) Rules, 1996, issued in exercise of thepowers conferred by s.3(1) read with s.8 of the Karnataka StateCivil Services Act, 1978 – The Rules as they stood, on the date onwhich the sister of the respondent died in harness, did not include

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Aan unmarried brother, within the definition of the expression“dependent of a deceased Government servant” under r.2(1)(a) ofthe said Rules vis-a-vis a deceased female unmarried Governmentservant – But it was only by way of an amendment proposed undera draft Notification dated 20.06.2012 which was given effect on11.07.2012 that an unmarried brother of a deceased femaleBunmarried Government servant was included within the definition– There is no dispute about the fact that the sister of the respondentdied as an unmarried female Government servant, but on 8.12.2010,before the amendment was made to the Rules – Respondent’sapplication dismissed.C

Interpretation of statutes: There is no principle of statutoryinterpretation which permits a decision on the applicability of arule, to be based upon an indeterminate or variable factor – A ruleof interpretation which produces different results, depending uponwhat the individuals do or do not do, is inconceivable.D

Allowing the appeal, the Court

HELD: 1. Every appointment to a post or service must bemade strictly by adhering to the mandate of Articles 14 and 16 ofthe Constitution. Appointment on compassionate grounds, is anexception to the regular mode of recruitment, as it is intended toEprovide succor to the family of the deceased Government servant,which is thrown out of gear both financially and otherwise, due tothe sudden death of the Government servant in harness.[Para 7][128-H; 129-A-B]

Conclusion

F2. Admittedly, the appointment on compassionate groundsin the State of Karnataka is governed by a set of Rules known asKarnataka Civil Services (Appointment on Compassionategrounds) Rules, 1996, issued in exercise of the powers conferredby Section 3(1) read with Section 8 of the Karnataka State CivilServices Act, 1978. The Rules as they stood, on the date on whichGthe sister of the respondent died in harness, did not include anunmarried brother, within the definition of the expression“dependant of a deceased Government servant” under Rule2(1)(a) of the said Rules vis-a-vis a deceased female unmarriedGovernment servant. But it was only by way of an amendmentproposed under a draft Notification dated 20.06.2012 which wasH

given effect under the final Notification bearing No. DPAR 55SCA 2012, Bangalore dated 11.07.2012 that an unmarried brotherof a deceased female unmarried Government servant was includedwithin the definition. There is no dispute about the fact that thesister of the respondent died as an unmarried female Governmentservant, but on 8.12.2010, before the amendment was made tothe Rules. [Para 8][129-B-E]

State Bank of India vs. Sheo Shankar Tewari (2019) 5SCC 600 : [2019] 3 SCR 718 – referred to.

3. It is no doubt true that there are, two lines of decisionsrendered by Benches of equal strength. But the apparent conflictbetween those two lines of decisions, was on account of thedifference between an amendment by which an existing benefitwas withdrawn or diluted and an amendment by which the existingbenefit was enhanced. The interpretation adopted by this Courtvaried depending upon the nature of the amendment.[Para 12][130-G]

State of Madhya Pradesh vs. Amit Shrivas (2020) 10SCC 496; State of Madhya Pradesh vs. AshishAwasthi (2022) 2 SCC 157 – referred to.

4. In cases where the benefit under the existing Schemewas taken away or substituted with a lesser benefit, this Courtdirected the application of the new Scheme. But in cases wherethe benefits under an existing Scheme were enlarged by amodified Scheme after the death of the employee, this Courtapplied only the Scheme that was in force on the date of death ofthe employee. This is fundamentally due to the fact thatcompassionate appointment was always considered to be anexception to the normal method of recruitment and perhapslooked down upon with lesser compassion for the individual andgreater concern for the rule of law. [Para 17][134-F-G]

5. If compassionate appointment is one of the conditions ofservice and is made automatic upon the death of an employee inharness without any kind of scrutiny whatsoever, the same wouldbe treated as a vested right in law. But it is not so. Appointmenton compassionate grounds is not automatic, but subject to strict

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Ascrutiny of various parameters including the financial position ofthe family, the economic dependence of the family upon thedeceased employee and the avocation of the other members ofthe family. Therefore, no one can claim to have a vested right forappointment on compassionate grounds. Though there is a conflictof opinion in decisions as to whether the Scheme in force on theBdate of death of the employee would apply or the Scheme in forceon the date of consideration of the application of appointment oncompassionate grounds would apply, there is certainly no conflictabout the underlying concern reflected in the above decisions.Wherever the modified Schemes diluted the existing benefits,Cthis Court applied those benefits, but wherever the modifiedScheme granted larger benefits, the old Scheme was madeapplicable. [Para 18][134-H; 135-A-D]

6. The important aspect about the conflict of opinion is thatit revolves around two dates, namely, (i) date of death of theDemployee; and (ii) date of consideration of the application of thedependant. Out of these two dates, only one, namely, the date ofdeath alone is a fixed factor that does not change. The next datenamely the date of consideration of the claim, is something thatdepends upon many variables such as the date of filing ofapplication, the date of attaining of majority of the claimant andEthe date on which the file is put up to the competent authority.There is no principle of statutory interpretation which permits adecision on the applicability of a rule, to be based upon anindeterminate or variable factor. [Para 19][135-D-F]

7. A rule of interpretation which produces different results,Fdepending upon what the individuals do or do not do, is inconceivable.This is why, the managements of a few banks, in the casestabulated above, have introduced a rule in the modified schemeitself, which provides for all pending applications to be decidedunder the new/modified scheme. Therefore, the interpretationGas to the applicability of a modified Scheme should depend onlyupon a determinate and fixed criteria such as the date of deathand not an indeterminate and variable factor. [Para 19][136-A-C]

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8. Coming to the case on hand, the employee died on8.12.2010 and the amendment to the Rules was proposed by wayof a draft notification on 20.06.2012. The final notification wasissued on 11.07.2012. Merely because the application forappointment was taken up for consideration after the issue of theamendment, the respondent could not have sought the benefit ofthe amendment. The Judgment of the Division Bench of theKarnataka High Court in Akkamahadevamma on which theTribunal as well as the High Court placed reliance, was notapplicable to the case of compassionate appointments, as theamendment in Akkamahadevamma came as a result of the existingrule being declared to be ultra vires Articles 14 and 16 of theConstitution. [Para 20][136-C-E]

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State of Karnataka v. Akkamahadevamma and othersdecided by Division Bench of Karnataka High Courton 18.11.2010 on Writ Petition No.20914 of 2010 etc– held inapplicable.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7752of 2021.

From the Judgment and Order dated 20.11.2019 of the High Courtof Karnataka, Dharwad Bench in Writ Petition No.106904 of 2019 (S-KAT).

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V. N. Raghupathy, Mohd. Apzal Ansari, Ms. Diksha Sharma, Advs.for the Appellants.

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Jayanth Muthraj, Sr. Adv., T. S. Sabarish, Vishnu Unnikrishnan,Advs. for the Respondent.

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AThe Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. Leave granted.

2. Aggrieved by the order passed by Karnataka StateAdministrative Tribunal which was also confirmed by the High Court,Bdirecting them to consider the case of the respondent for appointmenton compassionate grounds, the State has come up with the above appeal.

3. We have heard Sh. V. N. Raghupathy, learned counsel appearingfor the appellants and Sh. Jayanth Muthraj, learned senior counselappearing for the respondent.C

4. Admittedly, the respondent’s sister who was employed asAssistant 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, twobrothers and two sisters were entirely dependent on her income, theDrespondent sought appointment on compassionate grounds. The claimwas 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, 2012on 20.06.2012, extending the benefit of compassionate appointment tothe unmarried dependant brother of an unmarried female employee, willEnot be applicable to the case of the respondent.

5. Aggrieved by the said order of rejection, the respondent movedthe Karnataka State Administrative Tribunal by way of an application inApplication No.9099 of 2014. The said application was allowed by theTribunal by an Order dated 10.11.2017, on the ground that the amendmentFmade to the Rules on 20.06.2012 would apply retrospectively coveringthe 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 byGan Order dated 20.11.2019, on the basis of the decision of another DivisionBench of the Court, which held that the amendment to the Rules wasretrospective in nature. It is against the said Order that the State hascome up with above appeal.

7. As held by this Court repeatedly, every appointment to a postHor service must be made strictly by adhering to the mandate of Articles

v. BHEEMESH ALIAS BHEEMAPPA [V. RAMASUBRAMANIAN, J.]

14 and 16 of the Constitution. Appointment on compassionate grounds,is an exception to the regular mode of recruitment, as it is intended toprovide succor to the family of the deceased Government servant, whichis thrown out of gear both financially and otherwise, due to the suddendeath of the Government servant in harness.

8. Admittedly, the appointment on compassionate grounds in theState of Karnataka is governed by a set of Rules known as KarnatakaCivil Services (Appointment on Compassionate grounds) Rules, 1996,issued in exercise of the powers conferred by Section 3(1) read withSection 8 of the Karnataka State Civil Services Act, 1978. The Rules asthey stood, on the date on which the sister of the respondent died inharness, did not include an unmarried brother, within the definition of theexpression “dependant of a deceased Government servant” under Rule2(1)(a) of the said Rules vis-a-vis a deceased female unmarriedGovernment servant. But it was only by way of an amendment proposedunder a draft Notification dated 20.06.2012 which was given effect underthe final Notification bearing No. DPAR 55 SCA 2012, Bangalore dated11.07.2012 that an unmarried brother of a deceased female unmarriedGovernment servant was included within the definition. There is no disputeabout the fact that the sister of the respondent died as an unmarriedfemale Government servant, but on 8.12.2010, before the amendmentwas made to the Rules.

9. To hold that the amendment will have retrospective application,the High Court as well as the Tribunal relied upon a Judgment of theDivision Bench of the High Court of Karnataka in State of Karnatakavs. Akkamahadevamma and others, decided on 18.11.2010 in WritPetition Nos.20914 of 2010 etc. But it should be pointed out at the outsetthat the Judgment of the High Court in Akkamahadevamma arose outof an amendment to the Karnataka Civil Services (General Recruitment)(57[th] Amendment) Rules, 2000. By the Amendment made on 30.03.2010to the said Rules, grandson, unmarried granddaughter, daughter in law,widowed daughter and widowed granddaughter were included withinthe definition of the expression “members of the family” underExplanation-2 of Rule 9. But the amendment so made on 30.03.2010expanding the definition of the expression “members of the family”was triggered by an Order of the Tribunal which held the unamendedrule to be unconstitutional. It is in that context that the amendment madeon 30.03.2010 to the Rules issued on 23.11.2000 was held by the HighCourt to be retrospective in nature. It must also be remembered that the A

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Aexpanded definition was with respect to project displaced persons. Theright conferred upon a project displaced person stands on a differentfooting from the entitlement of a person to seek appointment oncompassionate grounds. In any case an amendment brought forth, onthe basis of a Judgment of a Court or Tribunal, holding the exclusion ofcertain categories of persons to be violative of Articles 14 and 16 of theBConstitution, may receive an interpretation such as the one proposed bythe High Court in Akkamahadevamma. But the same may not beapplicable to amendments of the nature that we are concerned with inthis case.

10. Incidentally we must point out that the High Court may not beCcorrect in holding in Akkamahadevamma that the insertion of additionalwords in an existing provision would make those additions part of theoriginal provision with effect from the date on which the original provisioncame into force. The rules of interpretation relating to ‘substitution’ arenot to be applied to the case of ‘insertion of additional words’.

D11. Be that as it may, Sh. Jayanth Muthraj, learned senior counselappearing for the respondent pleaded that there are two lines of Judgmentsof this Court, one taking the view that the Rules/Scheme in force on thedate of death of the Government servant would govern the field and theother holding that the Rules/scheme in force on the date of considerationof the claim would govern the field. Unable to reconcile this conflict, aEtwo Member Bench of this Court, by its Order dated 08.02.2019 in StateBank of India vs. Sheo Shankar Tewari[1], has referred the matter forconsideration by a larger Bench. Sh. Jayanth Muthraj, learned seniorcounsel therefore made a request that the present appeal may either beplaced along with the reference or await a decision on the abovereference.F

12. But we do not consider it necessary to do so. It is no doubttrue that there are, as contended by the learned senior Counsel for therespondent, two lines of decisions rendered by Benches of equal strength.But the apparent conflict between those two lines of decisions, was onaccount of the difference between an amendment by which an existingGbenefit was withdrawn or diluted and an amendment by which the existingbenefit was enhanced. The interpretation adopted by this Court varieddepending upon the nature of the amendment. This can be seen bypresenting the decisions referred to by the learned senior counsel for therespondent in a tabular column as follows:

THE SECRETARY TO GOVT. DEPARTMENT OF EDUCATION (PRIMARY)131v. BHEEMESH ALIAS BHEEMAPPA [V. RAMASUBRAMANIAN, J.]ABCDEFGH

132SUPREME COURT REPORTS[2021] 12 S.C.R.ABCDEFGH

THE SECRETARY TO GOVT. DEPARTMENT OF EDUCATION (PRIMARY)133v. BHEEMESH ALIAS BHEEMAPPA [V. RAMASUBRAMANIAN, J.]

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13. Apart from the aforesaid decisions, our attention was alsodrawn to the decision of the three member Bench in State of MadhyaPradesh vs. Amit Shrivas[2]. But that case arose out of a claim made bythe dependant of a deceased Government servant, who was originallyappointed on a work charged establishment and who later claimed tohave become a permanent employee. The Court went into the distinctionbetween an employee with a permanent status and an employee with aregular status. Despite the claim of the dependant that his father had G

Abecome a permanent employee, this Court held in that case that as perthe policy prevailing on the date of death, a work charged/contingencyfund employee was not entitled to compassionate appointment. Whileholding so, the Bench reiterated the opinion in Indian Bank vs. Promila.

14. The aforesaid decision in Amit Shrivas (supra) was followedBby a two member Bench of this Court in the yet to be reported decisionin the State of Madhya Pradesh vs. Ashish Awasthi decided on18.11.2021.

15. Let us now come to the reference pending before the largerBench. In State Bank of India vs. Sheo Shankar Tewari (supra), aCtwo member Bench of this Court noted the apparent conflict betweenState Bank of India vs. Raj Kumar and MGB Gramin Bank on theone hand and Canara Bank vs. M. Mahesh Kumar on the other handand referred the matter for the consideration of a larger Bench. Theorder of reference to a larger Bench was actually dated 8.02.2019.

D16. It was only after the aforesaid reference to a larger Benchthat this Court decided at least four cases, respectively in (i) IndianBank vs. Promila; (ii) N.C. Santhosh vs. State of Karnataka; (iii)State of Madhya Pradesh vs. Amit Shrivas; and (iv) State of MadhyaPradesh vs. Ashish Awasthi. Out of these four decisions, N.C. Santosh(supra) was by a three member Bench, which actually took note of theEreference pending before the larger Bench.

17. Keeping the above in mind, if we critically analyse the way inwhich this Court has proceeded to interpret the applicability of a new ormodified Scheme that comes into force after the death of the employee,we may notice an interesting feature. In cases where the benefit underFthe existing Scheme was taken away or substituted with a lesser benefit,this Court directed the application of the new Scheme. But in caseswhere the benefits under an existing Scheme were enlarged by a modifiedScheme after the death of the employee, this Court applied only theScheme that was in force on the date of death of the employee. This isGfundamentally due to the fact that compassionate appointment was alwaysconsidered to be an exception to the normal method of recruitment andperhaps looked down upon with lesser compassion for the individual andgreater concern for the rule of law.

18. If compassionate appointment is one of the conditions ofservice and is made automatic upon the death of an employee in harnessH

without any kind of scrutiny whatsoever, the same would be treated as avested right in law. But it is not so. Appointment on compassionate groundsis not automatic, but subject to strict scrutiny of various parametersincluding the financial position of the family, the economic dependenceof the family upon the deceased employee and the avocation of theother members of the family. Therefore, no one can claim to have avested right for appointment on compassionate grounds. This is whysome of the decisions which we have tabulated above appear to haveinterpreted the applicability of revised Schemes differently, leading toconflict of opinion. Though there is a conflict as to whether the Schemein force on the date of death of the employee would apply or the Schemein force on the date of consideration of the application of appointment oncompassionate grounds would apply, there is certainly no conflict aboutthe underlying concern reflected in the above decisions. Wherever themodified Schemes diluted the existing benefits, this Court applied thosebenefits, but wherever the modified Scheme granted larger benefits, theold Scheme was made applicable.

19. The important aspect about the conflict of opinion is that itrevolves around two dates, namely, (i) date of death of the employee;and (ii) date of consideration of the application of the dependant. Out ofthese two dates, only one, namely, the date of death alone is a fixedfactor that does not change. The next date namely the date ofconsideration of the claim, is something that depends upon many variablessuch as the date of filing of application, the date of attaining of majorityof the claimant and the date on which the file is put up to the competentauthority. There is no principle of statutory interpretation whichpermits a decision on the applicability of a rule, to be based uponan indeterminate or variable factor. Let us take for instance ahypothetical case where 2 Government servants die in harness on January01, 2020. Let us assume that the dependants of these 2 deceasedGovernment servants make applications for appointment on 2 differentdates say 29.05.2020 and 02.06.2020 and a modified Scheme comesinto force on June 01, 2020. If the date of consideration of the claim istaken to be the criteria for determining whether the modified Schemeapplies or not, it will lead to two different results, one in respect of theperson who made the application before June 1, 2020 and another inrespect of the person who applied after June 01, 2020. In other words, iftwo employees die on the same date and the dependants of thoseemployees apply on two different dates, one before the modified Scheme A

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Acomes into force and another thereafter, they will come in for differentialtreatment if the date of application and the date of consideration of thesame are taken to be the deciding factor. A rule of interpretationwhich produces different results, depending upon what theindividuals do or do not do, is inconceivable. This is why, themanagements of a few banks, in the cases tabulated above, haveBintroduced a rule in the modified scheme itself, which provides for allpending applications to be decided under the new/modified scheme.Therefore, we are of the considered view that the interpretation as tothe applicability of a modified Scheme should depend only upon adeterminate and fixed criteria such as the date of death and not anCindeterminate and variable factor.

20. Coming to the case on hand, the employee died on 8.12.2010and the amendment to the Rules was proposed by way of a draftnotification on 20.06.2012. The final notification was issued on11.07.2012. Merely because the application for appointment was takenDup for consideration after the issue of the amendment, the respondentcould not have sought the benefit of the amendment. The Judgment ofthe Division Bench of the Karnataka High Court in Akkamahadevammaon which the Tribunal as well as the High Court placed reliance, was notapplicable to the case of compassionate appointments, as the amendmentin Akkamahadevamma came as a result of the existing rule beingEdeclared to be ultra vires Articles 14 and 16 of the Constitution.

21. In view of the above, the appeal is allowed and the impugnedorder of the High Court as well as that of the Tribunal are set aside. Theapplication of the respondent for compassionate appointment shall standdismissed. There shall be no order as to costs.

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Devika Gujral

Appeal allowed.

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