THE DIRECTOR OF TREASURIES IN KARNATAKA & ANR.V. V. SOMYASHREE versus V. SOMYASHREE on 13 September 2021

[2021] 7 S.C.R. 649

THE DIRECTOR OF TREASURIES IN KARNATAKA & ANR.

v.

V. SOMYASHREE

(Civil Appeal No. 5122 of 2021)

SEPTEMBER 13, 2021

[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]

Service Law – Compassionate appointment – Plea of –Karnataka Civil Services (Appointment on Compassionate Grounds)Rules 1996 – rr. 2 and 3 – Mother of the original writ petitoner wasemployed with the Government of Karnataka as Second DivisionAssistant – She died on 25.03.2012 – After her death, her daughter-original writ petitioner initiated a divorce proceeding for divorceby mutual consent u/s.13B of the Hindu Marriage Act, 1955 – On20.03.2013, she obtained a decree of divorce by mutual consent –On 21.03.2013, the original writ petitioner submitted an applicationfor appointment on compassionate ground – Her application wasrejected – Karnataka State Administrative Tribunal also dismissedher application – However, the High Court directed the appellantsto consider the application of the original writ petitioner for grantof compassionate appointment – The High Court held that a divorceddaughter would fall in the same class of an unmarried or widoweddaughter – On appeal, held: From Rule 2 and Rule 3 of the Rules,1996 it can be seen that only ‘unmarried daughter’ and ‘widoweddaughter’ who were dependent upon the deceased femaleGovernment servant at the time of her death and living with her canbe said to be ‘dependent’ of a deceased Government servant andare eligible for appointment on compassionate ground – Rule 2and Rule 3 do not include ‘divorced daughter’ as eligible forappointment on compassionate ground and even as ‘dependent’ –The word ‘divorced daughter’ has been added subsequently byAmendment, 2021 – However, in the instant case, at the relevanttime when the deceased employee died and when the original writpetitioner made an application for appointment on compassionateground the ‘divorced daughter’ was not eligible for appointmenton compassionate ground and the ‘divorced daughter’ was notwithin the definition of ‘dependent’ – Further, the chronology ofdates and events i.e. on 20.03.2013 decree of divorce by mutual

A

B

CDEFGH

Aconsent was obtained and on 21.03.2013 an application wassubmitted for appointment, the same would suggest that only forthe purpose of getting appointment on compassionate ground thedecree of divorce by mutual consent was obtained – Also, at thetime when the deceased employee died she was a married daughterand therefore, also cannot be said to be ‘dependent’ as definedBunder Rule 2 of the Rules 1996 – Therefore, considering the factsand circumstances of the case, the High Court ought not to havedirected the appellants to consider the application of the respondentherein for appointment on compassionate ground as ‘divorceddaughter’ – Thus, the impugned judgment and order passed by theCHigh Court is hereby quashed and set aside.

Allowing the appeal, the Court

HELD: 1. Applying the law laid down by this Court in N.C.Santhosh to the facts of the case on hand, this Court is of theopinion that as such the High Court has gone beyond Rule 2 andDRule 3 of the Karnataka Civil Services (Appointment onCompassionate Grounds) Rules, 1996 by directing the appellantsto consider the application of the respondent herein forappointment on compassionate ground as ‘divorced daughter’.[Para 8][656-G-H]

E

Conclusion

2. From Rule 2 and Rule 3 it can be seen that only‘unmarried daughter’ and ‘widowed daughter’ who weredependent upon the deceased female Government servant at thetime of her death and living with her can be said to be ‘dependent’of a deceased Government servant and that ‘an unmarriedFdaughter’ and ‘widowed daughter’ only can be said to be eligiblefor appointment on compassionate ground in the case of death ofthe female Government servant. Rule 2 and Rule 3 reproducedhereinabove do not include ‘divorced daughter’ as eligible forappointment on compassionate ground and even as ‘dependent’.As observed hereinabove and even as held by this Court in theGcase of N.C. Santhosh, the norms prevailing on the date ofconsideration of the application should be the basis ofconsideration of claim for compassionate appointment. The word‘divorced daughter’ has been aexdded subsequently byAmendment, 2021. Therefore, at the relevant time when theHdeceased employee died and when the original writ petitioner –

respondent herein made an application for appointment oncompassionate ground the ‘divorced daughter’ were not eligiblefor appointment on compassionate ground and the ‘divorceddaughter’ was not within the definition of ‘dependent.’ [Para8.1][658-A-D]

3. Apart from the above one additional aspect needs to benoticed, which the High Court has failed to consider. It is to benoted that the deceased employee died on 25.03.2012. Therespondent herein – original writ petitioner at that time was amarried daughter. Her marriage was subsisting on the date ofthe death of the deceased i.e. on 25.03.2012. Immediately on thedeath of the deceased employee, the respondent initiated thedivorced proceedings under Section 13B of the Hindu MarriageAct, 1955 on 12.09.2012 for decree of divorce by mutual consent.By Judgment dated 20.03.2013, the Principal Civil Judge, Mandyagranted the decree of divorce by mutual consent. Thatimmediately on the very next day i.e. on 21.03.2013, therespondent herein on the basis of the decree of divorce by mutualconsent applied for appointment on compassionate ground. Theaforesaid chronology of dates and events would suggest that onlyfor the purpose of getting appointment on compassionate groundthe decree of divorce by mutual consent has been obtained.Otherwise, as a married daughter she was not entitled to theappointment on compassionate ground. Therefore, looking to theaforesaid facts and circumstances of the case, otherwise also theHigh Court ought not to have directed the appellants to considerthe application of the respondent herein for appointment oncompassionate ground as ‘divorced daughter’. This is oneadditional ground to reject the application of the respondent forappointment on compassionate ground. [Para 8.2][658-E-H; 659-A-B]

4. Even otherwise, it is required to be noted that at thetime when the deceased employee died on 25.03.2012 themarriage between the respondent and her husband was subsisting.Therefore, at the time when the deceased employee died shewas a married daughter and therefore, also cannot be said to be‘dependent’ as defined under Rule 2 of the Rules 1996. Therefore,even if it is assumed that the ‘divorced daughter’ may fall in the A

BC

D

E

F

G

H

Asame class of ‘unmarried daughter’ and ‘widowed daughter’ inthat case also the date on which the deceased employee died she– respondent herein was not the ‘divorced daughter’ as sheobtained the divorce by mutual consent subsequent to the deathof the deceased employee. Therefore, also the respondent shallnot be eligible for the appointment on compassionate ground onBthe death of her mother and deceased employee. [Para 8.3][659-B-D]

N. C. Santhosh v. State of Karnataka and Ors. (2020) 7SCC 617 : [2020] 3 SCR 1177 – relied on.

Case Law Referencerelied onPara 5.7

C

[2020] 3 SCR 1177

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5122 of2021.

From the Judgment and Order dated 17.12.2018 of the High CourtDof Karnataka at Bengaluru in Writ Petition No.5609 of 2017 (S-KAT).

V. N. Raghupathy, Md. Apzal Ansari, Advs. for the Appellants.Mohd. Irshad Hanif, Rizwan Ahmad, Mujahid Ahmad, Mohd.Aslam, Ahmad Parvez, Shishir Raj, Advs. for the Respondent.

EThe Judgment of the Court was delivered byM. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned Judgmentand Order dated 17.12.2018 passed by the High Court of Karnataka atBengaluru in Writ Petition No.5609/2017 by which the High Court hasFallowed the said Writ Petition preferred by the respondent herein andhas quashed and set aside the order dated 09.12.2015 passed by theKarnataka State Administrative Tribunal, Bengaluru in ApplicationNo.6396 of 2015 and consequently has directed the appellants herein toconsider the application of the respondent herein – original writ petitioner(hereinafter referred to as ‘original petitioner’) for grant of compassionateGappointment, the original respondent has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

That one Smt. P. Bhagyamma, the mother of the original writpetitioner was employed with the Government of Karnataka as SecondDivision Assistant at Mandya District Treasury. She died on 25.03.2012.H

That original writ petitioner, who at the relevant time was a marrieddaughter at the time when the deceased (Smt. P. Bhagyamma) died,initiated a divorce proceedings for divorce by mutual consent underSection 13B of the Hindu Marriage Act, 1955 on 12.09.2012. By itsjudgment and decree dated 20.03.2013 a decree of divorce by mutualconsent was passed by the Learned Principal Senior Civil Judge, CJM,Mandya. On the very next day i.e. on 21.03.2013, the original writpetitioner submitted an application to appoint her on compassionate groundon the death of her mother. By order dated 03.05.2013, the applicationfor appointment on compassionate appointment came to be rejected onthe ground that there is no provision provided under Rule 3(2)(ii) ofKarnataka Civil Services (Appointment on Compassionate Grounds)Rules 1996 (hereinafter referred to as ‘the Rules, 1996’) for divorceddaughter. That the original writ petitioner made an application before theKarnataka State Administrative Tribunal being application No.6396 of2015 on 20.07.2015 i.e. after a period of approximately 2 years from thedate of rejection of her application for appointment on compassionateground. The Learned Tribunal dismissed the said application by orderdated 09.12.2015 on the ground that there is no provision for appointmenton compassionate ground for divorced daughter. Thereafter, the originalwrit petitioner approached the High Court against the order dated09.12.2015 passed by the Learned Administrative Tribunal, Bengaluru.

3. By impugned judgment and order dated 17.12.2018 the HighCourt has allowed the Writ Petition No.5609 of 2017 and has quashedand set aside the order dated 09.12.2015 passed by the KarnatakaAdministrative Tribunal, Bengaluru in application No.6393 of 2015 andhas directed the appellants herein to consider the application of the originalwrit petitioner for grant of compassionate appointment based on theobservations made in the impugned judgment and order. By the impugnedjudgment and order the High Court has interpreted Rule 3 of the Rules,1996 and has observed that a divorced daughter would fall in the sameclass of an unmarried or widowed daughter and therefore, a divorceddaughter has to be considered on par with ‘unmarried’ or ‘widoweddaughter’.

3.1 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the appellants have preferred thepresent appeal.

AB

C

D

E

F

G

H

A4. Shri V.N. Raghupathy, Learned Advocate appearing on behalfof the State has vehemently submitted that in the facts and circumstancesof the case, the High Court has materially erred in quashing and settingaside the order passed by the Learned Tribunal and has erred in directingthe appellants to consider the application of the writ petitioner for grantof compassionate appointment.B

A

4.1 It is submitted that the directions issued by the High Courtdirecting the appellants to consider the application of the original writpetitioner for grant of compassionate appointment is just contrary toRule 3 of Rules, 1996. It is submitted that as per Rule 3 of the Rules1996 only “unmarried and widowed daughter” shall be entitled to and/orCeligible for the appointment on compassionate ground in the case of thedeceased female Government servant. It is submitted that Rule 3 (2)(ii)of Rules, 1996 does not include the ‘divorced daughter’ for grant ofcompassionate appointment in the case of the deceased femaleGovernment servant.D

4.2 It is further submitted that even as per the definition of‘dependent’ as defined in Rule 2 of the Rules, 1996, in case of deceasedfemale Government servant her widower, son, (unmarried daughter orwidowed daughter) who were dependent upon her and were living withher can be said to be ‘dependent’. It is submitted that the divorcedEdaughter is not included within the definition of ‘dependent’.

4.3 It is submitted that therefore the directions issued by the HighCourt directing the appellants to consider the application of the respondentherein for appointment on compassionate ground as a divorced daughteris beyond Rule 2 and Rule 3 of the Rules, 1996.

F

4.4 It is submitted that even otherwise it has not been establishedand proved that the respondent herein was ‘dependent’ upon the deceasedemployee and was living with her at the time of her death.

4.5 It is further submitted that even otherwise the High Court hascommitted a grave error in not appreciating the fact that the deceasedGemployee died on 25.03.2012 and that thereafter immediately therespondent initiated a divorced proceedings under Section 13B of theHindu Marriage Act, 1955 on 12.09.2012 and obtained a decree fordivorce by mutual consent dated 20.03.2013 and immediately on thevery next day submitted that application for appointment on compassionateground on 21.03.2013. It is submitted that the aforesaid facts wouldH

clearly demonstrate that only for the purpose of getting the appointmenton compassionate ground she obtained the divorce by mutual consent.It is submitted that the High Court has not at all considered the aforesaidaspects.

5.7 Reliance is placed on the decision of this Court in the case ofN.C. Santhosh vs. State of Karnataka and Ors., (2020) 7 SCC 617 insupport of the submission that the appointment on compassionate groundonly be as per the scheme and the policy.

5.8 Making the above submissions it is prayed to allow the presentappeal.

6. Present appeal is vehemently opposed by Shri Mohd. IrshadHanif, Learned Advocate for the respondent – original writ petitioner.

6.1 It is submitted that in the facts and circumstances of the casethe High Court has rightly interpreted Rule 3 and the object and purposeby which Rule 3 was amended in the year 2000 by which the words‘unmarried daughter’ and ‘widowed daughter’ came to be included withinthe definition of ‘dependent’ in Rule 3. It is submitted that the HighCourt has rightly observed that the intention and the rule making authorityin adding ‘unmarried’ or ‘widowed daughter’ to the definition of dependentis very clear. It is submitted that the High Court has rightly observed that‘divorced daughter’ would fall in the same class of ‘unmarried’ or‘widowed daughter’. It is submitted that while interpreting Rule 3 of theRules, 1996 the High Court has adopted the purposive meaning.

6.2 It is submitted that even subsequently and as per the KarnatakaCivil Services Appointment on Compassionate Grounds (AmendmentRules, 2021) the ‘divorced daughter’ also shall be eligible for appointmenton compassionate ground in the case of the deceased Governmentservant. It is submitted that therefore the interpretation made by theHigh Court by the impugned judgment is absolutely in line with theamended Rules, 2021 by which now even ‘divorced daughter’ also shallbe entitled the appointment on compassionate ground in the case of thedeceased servant.

6.3 Making the above submissions it is prayed to dismiss the presentappeal.

7. While considering the submissions made on behalf of the rivalparties a recent decision of this Court in the case of N.C. Santhosh A

B

C

D

E

F

G

H

A(Supra) on the appointment on compassionate ground is required to bereferred to. After considering catena of decisions of this Court onappointment on compassionate grounds it is observed and held thatappointment to any public post in the service of the State has to be madeon the basis of principles in accordance with Articles 14 and 16 of theConstitution of India and the compassionate appointment is an exceptionBto the general rule. It is further observed that the dependent of thedeceased Government employee are made eligible by virtue of the policyon compassionate appointment and they must fulfill the norms laid downby the State’s policy. It is further observed and held that the normsprevailing on the date of the consideration of the application should beCthe basis for consideration of claim of compassionate appointment. Adependent of a government employee, in the absence of any vestedright accruing on the death of the government employee, can only demandconsideration of his/her application. It is further observed he/she is,however, entitled to seek consideration in accordance with the norms asapplicable on the day of death of the Government employee. The lawDlaid down by this Court in the aforesaid decision on grant of appointmenton compassionate ground can be summarized as under:

(i) that the compassionate appointment is an exception to thegeneral rule; E(ii) that no aspirant has a right to compassionate appointment;

(iii) the appointment to any public post in the service of the Statehas to be made on the basis of the principle in accordancewith Articles 14 and 16 of the Constitution of India;(iv) appointment on compassionate ground can be made only onFfulfilling the norms laid down by the State’s policy and/orsatisfaction of the eligibility criteria as per the policy;

(v) the norms prevailing on the date of the consideration of theapplication should be the basis for consideration of claim forcompassionate appointment.G8. Applying the law laid down by this Court in the aforesaid decisionto the facts of the case on hand, we are of the opinion that as such theHigh Court has gone beyond Rule 2 and Rule 3 of the Rules, 1996 bydirecting the appellants to consider the application of the respondentherein for appointment on compassionate ground as ‘divorced daughter’.HRule 2 and Rule 3 of the Rules, 1996 read as under:

THE DIRECTOR OF TREASURIES IN KARNATAKA & ANR.v. V. SOMYASHREE [M. R. SHAH, J.]

“2. Definitions:- (1) In these rules, unless the contextotherwise requires:- A

(a) “Dependent of a deceased Government servant” means-

(i) in the case of deceased male Government servant, his widow,son, (unmarried daughter and widowed daughter) who wereBdependent upon him; and were living with him; and

(ii) in the case of a deceased female Government servant, herwidower, son, (unmarried daughter and widowed daughter)who were dependent upon her and were living with her;

(iii) ‘family’ in relation to a deceased Government servant meanshis or her spouse and their son, (unmarried daughter andwidowed daughter) who were living with him.

C

(2) Words and expressions used but not defined shall havethe same meaning assigned to them in the Karnataka CivilServices (General Recruitment) Rules, 1977.”

D

6. The eligibility on the death of a female employee is interms of Rule 3(2)(ii) of the Karnataka Civil Services(Appointment on Compassionate Grounds) Rules, 1996, whichreads as follows:

Rule 3(2)(ii):-

E

‘(ii) in the case of the deceased female Government servant; (a) a son; (b) an unmarried daughter, if the son is not eligible or for anyvalid reason he is not willing to accept the appointment; F

(c) the widower, if the son and daughter are not eligible or forany valid reason they are not willing to accept theappointment.

(d) a widowed daughter, if the widower, son and unmarrieddaughter are not eligible or for any valid reason they are notwilling to accept the appointment.

G

3. xxx

4 xxx”

A8.1 From the aforesaid rules it can be seen that only ‘unmarrieddaughter’ and ‘widowed daughter’ who were dependent upon thedeceased female Government servant at the time of her death and livingwith her can be said to be ‘dependent’ of a deceased Government servantand that ‘an unmarried daughter’ and ‘widowed daughter’ only can besaid to be eligible for appointment on compassionate ground in the caseBof death of the female Government servant. Rule 2 and Rule 3 reproducedhereinabove do not include ‘divorced daughter’ as eligible for appointmenton compassionate ground and even as ‘dependent’. As observedhereinabove and even as held by this Court in the case of N.C. Santhosh(Supra), the norms prevailing on the date of consideration of theCapplication should be the basis of consideration of claim for compassionateappointment. The word ‘divorced daughter’ has been added subsequentlyby Amendment, 2021. Therefore, at the relevant time when the deceasedemployee died and when the original writ petitioner – respondent hereinmade an application for appointment on compassionate ground the‘divorced daughter’ were not eligible for appointment on compassionateDground and the ‘divorced daughter’ was not within the definition of‘dependent.’

8.2 Apart from the above one additional aspect needs to be noticed,which the High Court has failed to consider. It is to be noted that thedeceased employee died on 25.03.2012. The respondent herein – originalEwrit petitioner at that time was a married daughter. Her marriage wassubsisting on the date of the death of the deceased i.e. on 25.03.2012.Immediately on the death of the deceased employee, the respondentinitiated the divorced proceedings under Section 13B of the HinduMarriage Act, 1955 on 12.09.2012 for decree of divorce by mutualFconsent. By Judgment dated 20.03.2013, the Learned Principal CivilJudge, Mandya granted the decree of divorce by mutual consent. Thatimmediately on the very next day i.e. on 21.03.2013, the respondentherein on the basis of the decree of divorce by mutual consent appliedfor appointment on compassionate ground. The aforesaid chronology ofdates and events would suggest that only for the purpose of gettingGappointment on compassionate ground the decree of divorce by mutualconsent has been obtained. Otherwise, as a married daughter she wasnot entitled to the appointment on compassionate ground. Therefore,looking to the aforesaid facts and circumstances of the case, otherwisealso the High Court ought not to have directed the appellants to considerH

the application of the respondent herein for appointment on compassionateground as ‘divorced daughter’. This is one additional ground to rejectthe application of the respondent for appointment on compassionateground.

8.3 Even otherwise, it is required to be noted that at the timewhen the deceased employee died on 25.03.2012 the marriage betweenthe respondent and her husband was subsisting. Therefore, at the timewhen the deceased employee died she was a married daughter andtherefore, also cannot be said to be ‘dependent’ as defined under Rule 2of the Rules 1996. Therefore, even if it is assumed that the ‘divorceddaughter’ may fall in the same class of ‘unmarried daughter’ and‘widowed daughter’ in that case also the date on which the deceasedemployee died she – respondent herein was not the ‘divorced daughter’as she obtained the divorce by mutual consent subsequent to the deathof the deceased employee. Therefore, also the respondent shall not beeligible for the appointment on compassionate ground on the death ofher mother and deceased employee.

9. In view of the above and for the reasons stated above, theappeal succeeds. The impugned common judgment and order passed bythe High Court in Writ Petition No.5609/2017 is hereby quashed and setaside. The Writ Petition before the High Court is dismissed accordingly.However, there shall be no order as to costs.

Ankit Gyan

Appeal allowed.

A

B

C

D

E

F

G

H