compassionate appointment = A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.

compassionate appointment = A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.

  1. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar8 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State’s policy. 20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee. 8 (2019) 3 SCC 653 Page 15 of 16 21. In view of the foregoing opinion, we endorse the Tribunal’s view as affirmed by the High Court of Karnataka to the effect that the appellants were ineligible for compassionate appointment when their applications were considered and the unamended provisions of Rule 5 of the Rules will not apply to them. Since no infirmity is found in the impugned judgments, the appeals are found devoid of merit and the same are dismissed.

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 9280-9281 OF 2014

N.C. Santhosh Appellant(s)

Versus

State of Karnataka & Ors. Respondent(s)

WITH

CIVIL APPEAL NO. 1996 OF 2020

(Arising out of SLP(C) No. 34878/2013

CIVIL APPEAL NO. 1997 OF 2020

(Arising out of SLP(C) No. 24169/2015

J U D G M E N T

Hrishikesh Roy, J.

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

24169/2015

  1. The appellants here were the beneficiary of compassionate

appointments. But on the discovery that their appointments were made

dehors the provisions of the Karnataka Civil Services (Appointment on

Compassionate Grounds) Rules, 1996 as amended w.e.f. 1.04.1999,

Page 1 of 16

(hereinafter referred to as the “Rules”), those appointments came to

be cancelled. The amendment to the proviso to Rule 5 stipulated that

in case of a minor dependant of the deceased government employee,

he/she must apply within one year from the date of death of the

government servant and he must have attained the age of eighteen

years on the day of making the application. Before amendment, the

minor dependant was entitled to apply till one year of attaining

majority.

  1. When their service was terminated the aggrieved appointees

approached the Karnataka Administrative Tribunal at Bangalore

(hereinafter referred to as the “Tribunal”). But the Tribunal found that

appellants were ineligible for appointment under the Rules and

accordingly dismissed the related applications. The resultant writ

petitions were dismissed by the High Court of Karnataka at Bangalore,

leading to the present appeals.

  1. We have heard Ms. Kiran Suri, learned Senior Counsel

appearing for the appellant in the Appeal arising from the SLP (C)

No.34878 of 2013, Mr. Shanthkumar V. Mahale, learned counsel

appearing in C.A. Nos.9280-9281 of 2014 and in the appeal arising out

of the SLP (C) No.24169 of 2015. The State of Karnataka is

Page 2 of 16

represented by Mr. V.N. Raghupathy and Mr S Padhi, the Learned

Counsel in the respective appeals.

  1. Assailing the adverse decision of the Tribunal as affirmed by the

High Court, the appellants contend that they have been legitimately

appointed on compassionate basis and have rendered service without

any blemish and therefore, the authority should not be permitted to

apply the amended provisions and cancel the appointment on the

ground that the appointees were ineligible to apply for compassionate

appointment. Ms. Kiran Suri, the learned senior counsel argues that

Rule 5 is only procedural and is not mandatory and therefore,

compassionate appointment of the dependant children who attained

majority beyond one year of death of the government employee,

should not be construed to be invalid. According to the appellants,

their cases have to be considered under the unamended Rules which

permits a minor dependant to apply for compassionate appointment

within one year of attaining majority. Describing Rule 9 as a

transitional provision whereunder the period for making application has

been changed through various amendments, the counsel for the

appellants argue that retrospective application of the amended

provisions should not lead to cancellation of appointment. Moreover,

since compassionate appointment was offered without any

misrepresentation by the beneficiary, the appellants should not be

Page 3 of 16

rendered jobless now on the ground of non-eligibility of the

appointees.

  1. The respondents, on the other hand, argue that the norms

applicable at the stage of consideration is relevant and here as the

appellants had not attained majority within one year from the death of

the government employee, they were ineligible to seek compassionate

appointment under the amended provisions of the compassionate

Rules. The Government counsel contend that since compassionate

appointment is an exception to the general Rule governing

appointment in the service of the State, the same has to be in

conformity with the prescribed Rules and those ineligible under the

Rules cannot ask for continuation of the illegal appointment. The

respondents also argue that the government has the power to rectify

the mistake and to recall the illegal appointment orders as the

appellants were appointed erroneously, despite there ineligibility.

  1. The essential details of the appellants can be seen in the

following chart:-

Case C.A. Nos. 9280-

9281/2014

(N.C. Santhosh)

CA @ SLP(C)

No. 34878/2013

(Sayeda F.

Banao)

CA @ SLP(C)

No.

24169/2015

(Sri Santosh)

Deceased Govt.

servant

N.H. Chandra

Gowda

Shakila Jabeena

Ara Begum

M. Indranna

Reddy

Dependant/Appoi N.C. Santhosh Sayeda Farheen Sri Santosh

Page 4 of 16

ntee Banao

Date of Birth 25.6.1982 12.5.1982 24.3.1983

Parents Death 25.1.1998 24.5.1994 11.11.1998

Minor’s Majority 25.6.2000 12.5.2000 24.3.2001

Application for

compassionate

appointment.

First, mother

applied on

28.2.1998. Then

after attaining

majority

appellant applied

on 29.06.2000.

First father

applied but was

rejected on

12.6.1997. Then

after attaining

majority

appellant applied

on 25.09.2000.

1.7.2001

Appointment 25.8.2000 20.9.2001 14.12.2004

Removal 4.11.2003 I. 15.6.2005 but

reinstated on

4.01.2006 on

Tribunal’s order.

II. Removed

again on

28.12.2006 and

relieved on

2.1.2007 on

disciplinary

ground

18.2.2007

Karnataka

Administrative

Tribunal

2.7.2008 21.4.2009 –

Disciplinary

action not

warranted but

termination

upheld for

unmerited

appointment.

15.6.2011

Bangalore High

Court

22.5.2012 (W.P.)

and 9.11.2012

(Review)

14.8.2013 2.12.2011

Page 5 of 16

8.1 Some additional aspect needs to be noticed to complete the

factual 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

the appellant’s mother on 24.5.1994, first, a request was made by the

appellant’s father to provide him appointment on compassionate

ground which however, was rejected by the authorities on 12.6.1997.

Thereafter, the appellant after attaining majority on 12.5.2000 made an

application for compassionate appointment on 25.9.2000 and was

appointed as a Second Division Assistant on 20.9.2001. She was

served with a show cause notice dated 2.6.2005 on the ground that

she had not attained the age of 18 years within one year from the date

of death of the government servant and accordingly, her service was

terminated vide Order dated 15.6.2005.

8.2 Challenging the order of termination, the appellant filed

application before the Tribunal. The Tribunal vide order dated

20.10.2005 set aside the termination order holding that the service of

the appellant was terminated without holding proper enquiry under

Rule 11 of Karnataka Civil Services (Classification, Control and

Appeal) Rules, 1957 and directed her reinstatement, reserving liberty

to the State in accordance with law.

Page 6 of 16

8.3 Pursuant to the order of the Tribunal, the appellant was

reinstated in service on 04.01.2006. Thereafter, an enquiry was

initiated against her under Rule 11 of the said Rules alleging

misconduct and misrepresentation of her age at the time of

submission of her application seeking appointment on compassionate

ground. The appellant was then removed from the service by order

dated 28.12.2006 and when her appeal was rejected by the Appellate

Authority on 30.08.2007, she again approached the Tribunal. In her

OA No.4901/2007, the Tribunal vide its order dated 21.04.2009 found

that there was no misconduct on the part of the appellant.

Nevertheless the Tribunal affirmed the cancellation of the appointment

with the finding that the appointment was made de hors the amended

Rule 5 of the KCS (Appointment on Compassionate Grounds) Rules

and thus, the cancellation of appointment was found to be justified by

the Tribunal. The appellant’s review petition was also dismissed by

order dated 03.12.2009. The resultant writ petition filed by the

appellant challenging cancellation of her appointment and the order of

the Tribunal were dismissed, by the High Court under the impugned

judgment dated 14.08.2013.

Page 7 of 16

8.4 Though, certain additional factual details are seen in the appeal

relating to Sayeda Farheen Banao, but core issue is no different from

the other cases. The question here too is whether her appointment on

compassionate ground, was in violation of the Karnataka Civil

Services (Appointment on Compassionate Ground) Rules, 1998.

  1. The action taken by the respondents in cancellation of

appointment is under the provisions of the Karnataka Civil Services

(Appointment on Compassionate Grounds) Rules, 1996 and therefore

relevant Rules are extracted hereinbelow:-

Unamended Rule 5

“Every dependant of a deceased Government servant, seeking

appointment under these rules shall make an application within one

year from the date of death of the Government servant, in such form,

as may be notified by the Government, from time to time, to the Head

of the Department under whom the deceased Government Servant

was working.

Provided that in the case of a minor, application shall be made within

a period of one year after attaining majority.”

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

reads:-

“…………………………………………………………………………

Provided that in the case of a minor, he must make an application

within one year from the date of death of the Government servant

and he must have attained the age of eighteen years on the date of

making the application.

Page 8 of 16

Provided further that nothing in the first proviso shall apply to an

application made by the dependant of a deceased Government

Servant, after attaining majority and which was pending for

consideration on the date of commencement of the Karnataka Civil

Services (Appointment on Compassionate Grounds) (Amendment)

Rules, 1998.”

Following the 28.05.2002 amendment, Rule 9(3) reads as

under:-

“………………………………………………………………………….

9(3) : All applications for appointment on compassionate grounds

made between the 13th day of September 1996 and the date of

commencement of the Karnataka Civil Services (Appointment on

Compassionate Grounds) 3rd Amendment Rules, 2002 by the

dependents of Government servants who died on or after 20th

October 1989 (other than the application made by such dependents

after the first day of April, 1999 and till the date of such

commencement in contravention of the first proviso to Rule 5 which

are :

(i) Rejected on the ground that they were not made within

the period specified in Rule 5, or

(ii) Pending on such date of commencement, shall be

deemed to have been made within the period specified under

Rule 5 and shall be reconsidered or as the case may be

considered for appointment subject to other provisions of these

Rules.”

Page 9 of 16

  1. While Rule 5 as it originally stood, enabled a minor dependant to

apply within one year after attaining majority, the Rule making

authority with the amendment effected from 01.04.1999 stipulated an

outer limit of one year from the date of death of the government

servant for making application for compassionate appointment. The

validity of the amended Rules is not challenged in any of the present

proceedings. Following the amendment the norms clearly suggest that

the earlier provision which enabled a minor dependant to apply on

attaining majority (may be years after the death of the government

servant), has been done away with. The object of the amended

provision is to ensure that no application is filed beyond one year of

the death of the government employee. The consequence of

prohibiting application by a minor beyond one year from the date of

death of the parent can only mean that the appellants were

undeserving beneficiaries of compassionate appointment as they

attained majority well beyond one year of the death of their respective

parents.

  1. In all these cases, when the government employee died, the

appellants were minor and they had turned 18, well beyond one year

of death of the parent. As can be seen from the details in the chart,

the dependants attained majority after a gap of 2-6 years from the

respective date of death of their parents and then they applied for

Page 10 of 16

appointment. By the time, the dependent children turned 18, the

amended provisions became operational w.e.f. 01.04.1999. As such

their belated application for compassionate appointment should have

been rejected at the threshold as being not in conformity with proviso

to Rule 5. The appellants applied for compassionate appointment

(after attainment of majority), well beyond the stipulated period of one

year from the date of death of the parent, and therefore, those

applications should not have been entertained being in contravention

of Rules.

  1. The provision of the Karnataka Civil Services (Appointment on

Compassionate Grounds) Rules, 1996 was considered in

Commissioner of Public Instructions and Others vs K.R. Vishwanath1

.

Speaking for the division bench, Dr. Justice Arijit Pasayat noted that

the effect of the amended second proviso is that, unless the

application is pending at the time of commencement of the

Amendment Rules, the same can have no bearing on the claim for

compassionate appointment. Thus, belated application filed by the

dependant on attaining majority beyond one year from the date of

death of the government employee would not be a valid application,

consistent with the provisions of the Rules.

1

(2005) 7 SCC 206

Page 11 of 16

  1. Insofar as the appellant’s claim to legitimacy of appointment on

the basis of Rule 9(3) of the Rules, a reading of Rule 9(3) suggests

that it is a transitory provision granting extension of time for applying

for compassionate appointment. But the transitory provision excludes

application filed in contravention of Rule 5, as amended in 1999. In

other words, applications filed by minor dependants who had not

attained majority within one year from the date of death of the

government servants will be in contravention of Rule 5. Therefore, we

are of the considered view that the cases of the appellants are not

covered by the transitory provision of Rule 9(3) introduced by the

notification dated 28.5.2002.

  1. It is well settled that for all government vacancies equal

opportunity should be provided to all aspirants as is mandated under

Articles 14 and 16 of the Constitution. However appointment on

compassionate ground offered to a dependant of a deceased

employee is an exception to the said norms. In Steel Authority of India

Limited vs. Madhusudan Das & Ors.2

It was remarked accordingly that

compassionate appointment is a concession and not a right and the

criteria laid down in the Rules must be satisfied by all aspirant.

2

(2008) 15 SCC 560

Page 12 of 16

  1. This Court in SBI vs. Raj Kumar3 while reiterating that no

aspirant has a vested right to claim compassionate appointment,

declared that the norms that are in force, when the application is

actually considered, will be applicable. The employer’s right to modify

the scheme depending on its policies was recognized in this judgment.

Similarly in MCB Gramin Bank vs. Chakrawarti Singh4

this Court

reiterated that compassionate appointment has to be considered in

accordance with the prevalent scheme and no aspirant can claim that

his case should be considered as per the scheme existing on the date

of death of the Government employee.

  1. However in Canara Bank & Anr. vs. M. Mahesh Kumar 5 in the

context of major shift in policy, whereunder, instead of compassionate

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 harness

scheme” which was prevalent on the death of the employee, be the

basis for consideration.

3

(2010) 11 SCC 661

4

(2014) 13 SCC 583

5

(2015) 7 SCC 412

Page 13 of 16

  1. A two judges bench headed by Justice Uday U. Lalit noticed the

Supreme Court’s view in SBI vs. Raj Kumar (supra) and MCB Gramin

Bank vs. Chakrawarti Singh (supra) on one side and the contrary view

in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) and felt the

necessity of resolution of the conflicting question on whether the

norms applicable on the date of death or on the date of consideration

of application should apply. Accordingly, in State Bank of India & Ors.

vs. Sheo Shankar Tewari6

the Court referred the matter for

consideration by a larger Bench so that the conflicting views could be

reconciled.

  1. The above discussion suggest that the view taken in Canara

Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the

contrary view of the coordinate bench, in the two earlier judgments.

Therefore, notwithstanding the strong reliance placed by the

appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar

(supra) as also the opinion of the learned Single Judge of the

Karnataka High Court in Uday Krishna Naik vs. State of Karnataka &

Ors.7

, it can not be said that the appellants claim should be

considered under the unamended provisions of the Rules prevailing on

the date of death of the Government employee.

6

(2019) 5 SCC 600

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

Page 14 of 16

  1. In the most recent judgment in State of Himachal Pradesh & Anr.

vs. Shashi Kumar8

the earlier decisions governing the principles of

compassionate appointment were discussed and analysed. Speaking

for the bench, Dr. Justice D.Y. Chandrachud reiterated that

appointment to any public post in the service of the State has to be

made on the basis of principles in accord with Articles 14 and 16 of the

Constitution and compassionate appointment is an exception to the

general rule. The Dependent of a deceased government employee are

made eligible by virtue of the policy on compassionate appointment

and they must fulfill the norms laid down by the State’s policy.

  1. Applying the law governing compassionate appointment culled

out from the above cited judgments, our opinion on the point at issue

is that the norms, prevailing on the date of consideration of the

application, should be the basis for consideration of claim for

compassionate appointment. A dependent of a government employee,

in the absence of any vested right accruing on the death of the

government employee, can only demand consideration of his/her

application. He is however disentitled to seek consideration in

accordance with the norms as applicable, on the day of death of the

government employee.

8

(2019) 3 SCC 653

Page 15 of 16

  1. In view of the foregoing opinion, we endorse the Tribunal’s view

as affirmed by the High Court of Karnataka to the effect that the

appellants were ineligible for compassionate appointment when their

applications were considered and the unamended provisions of Rule 5

of the Rules will not apply to them. Since no infirmity is found in the

impugned judgments, the appeals are found devoid of merit and the

same are dismissed.

………………………J.

[R. BANUMATHI]

………

………………J.

[A. S. BOPANNA]

………………………J.

[HRISHIKESH ROY]

NEW DELHI

MARCH 4, 2020

Page 16 of 16