Karnataka High Court
Uday Krishna Naik vs State Of Karnataka And Others on 16 April, 1999
Equivalent citations: ILR1999KAR2648, 1999(3)KARLJ99
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
ORDER
1. Appointments on compassionate grounds in the Civil Services of the State of Karnataka are governed by what are known as Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 framed under Section 8 of Karnataka State Civil Services Act, 1978. The rules permit such appointments in favour of the dependents of a deceased Government servant subject to the fulfillment of the conditions stipulated for the purpose. One of the conditions prescribed is that the family of the deceased Government servant is facing financial crisis or destitution. Rule 5 of the rules requires that every dependent of a deceased Government servant seeking appointment on compassionate grounds shall make an application to the Head of the Department in which the deceased was serving within one year from the date of the death of the Government servant in such form as may be notified. In the case of minor dependents, the proviso to the rule permits an application within one year after he/she attains majority. Rule 9 makes a transitional provision and inter alia provides that where an application could not for any reason be made between 20th of October, 1994 and the commencement of the rules by the dependent of a deceased Government servant, who died subsequent to October 1993 but before such commencement, such an application may be made within a period of one year from the date of the commencement of the rules, which shall be deemed to have been made within the period specified under Rule 5. What precisely is the nature of the requirement of these provisions is the only question that falls for consideration in this writ petition. Time now to state a few facts.
2. The petitioner's father, late Sri Krishna Vittal Naik, was a Head Constable in the State Police Department, who died in harness in March 1994. The petitioner is one of the seven children left behind by the deceased apart from his widow, all of whom were, according to the petitioner financially dependent upon the deceased. While the petitioner had not yet made an application for a compassionate appointment, the Karnataka Administrative Tribunal by an order dated 20th of October, 1994 set aside the rules regulating such appointments. In an appeal against the said order before the Supreme Court, the Tribunal's view was upheld resulting in the framing of the rules that now hold the field. During the interregnum, the Government appear to have issued a Circular in November 1996 forbidding consideration of applications for employment on compassionate grounds until the new rules were introduced. Even after the new rules had come into force, the petitioner's application was filed only on 30th of May, 1998, which was summarily rejected by the 3rd respondent by an endorsement dated 19th of June, 1998 on the ground that the same was filed beyond the period prescribed. Aggrieved, the petitioner has questioned the correctness of the said order and prayed for a mandamus for consideration of his request.
3. On behalf of the petitioners, it was contended that Rules 5 and 9 of the rules aforementioned insofar as the same prescribe a time-limit for making an application were only directory in nature and that an application filed belatedly could not be rejected only because the same was delayed. The object underlying the rules and the absence of any provision stipulating the consequences of a delayed filing were, according to the Counsel for the petitioner, sufficient for this Court to declare the rules to be directory. Reliance in support was placed on the decision of the Supreme Court in Smt. Sushma Gosain and Others v Union of India and Others and the decision of a Single Bench of the Punjab and Haryana High Court in Santosh Kumar v Haryana State Electricity Board and Another .
4. Rule 5 of the rules reads as under.-
"5. Application for appointment.--Every dependent 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".
5. Also relevant for our purposes is Rule 9(2), which squarely covers the case of the petitioner for the deceased employee having died subsequent to 20th of October, 1993, no application for appointment was made upto 20th of October, 1994. In all such cases, the rule permitted an application to be made within a period of one year from the date they came into force, in which event the applications were deemed to have been made within the time specified under Rule 5. Rule 9(2) may also be extracted at this stage:
"Where any application could not be made for any reason during the period between Twentieth October, 1994 and the date of commencement of these rules, by the dependent of a deceased Government servant who died subsequent to twentieth October, 1993 but before such commencement, the dependent of such a deceased Government servant may make an application within a period of one year from the date of such commencement and such application shall be deemed to have been made within the period specified under Rule 5 and shall be considered for appointment subject to the other provisions of these rules".
6. The question then is whether the provisions of the two rules insofar as they provide a time-limit for making an application are absolute hence mandatory in character or simply directory, so that, applications made even beyond the prescribed period may be considered in appropriate cases where delay is reasonably explained. This would necessarily involve a process of interpretation to find out the real object which the rules aim to achieve for the singular purpose behind the interpretation of any statutory provision is to discover and effectuate the legislative intent. Any such exercise may be effortless in case where the statute is so clear that external aids for understanding and applying the law may have no utility. Experience has however shown that Courts frequently disagree as to whether a given provision is plain in its meaning and if it is, what is that meaning. Now it is well-settled that the use of the word 'shall' as in Rule 5 or "may" as used in Rule 9(2) cannot be conclusive for determining the mandatory or directory nature of the said provision although the former is in the ordinary course understood as mandatory while the latter is directory. In legislative enactments, the two words have been often used as interchangeable expressions. It is this use without regard to the literal meaning, which generally makes it necessary for the Courts to resort to construction in order to discover the real intention of the Draftsman. The literal meaning of imperative and permissive terms will give way when the interpretation of the statute, according to the literal meaning of its words would lead to absurd, inconvenient or unreasonable results. As observed by the Supreme Court in Dalchand v Municipal Corporation, Bhopal and Another, there are no ready tests or invariable formulae to determine whether the provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered and the link between the two established. The waiving of consequences of holding a provision to be mandatory or directory is vital and more often than not determinative of the very question whether the provision is mandatory or directory. The essence of the matter is whether what is required by the statute is a matter of mere convenience or substance. The most important test if I may say so for determining whether or not the requirement prescribed by the statute is essential is to consider the consequences of the failure to follow the statute for it is there that the importance of the requirement is revealed. If the requirement is revealed to be important, it may logically be argued that the legislative authority intended that it should be complied with. Suffice it to say that even when there can be no rule of universal application for determination of the question whether a given provision is imperative or merely directive, judicial pronouncements have broadly identified three fundamental tests, which have been applied with remarkable success. These are based on (1) considerations of the scope and object of the enactment in question, (2) considerations of justice and balance of convenience and (3) considerations of the nature of the particular provision viz., whether it affects the performance of a public duty or relates to a right, privilege or power.
7. Let us now examine the rules in question in the context of what has been stated above. The object underlying the rules is to provide immediate succor to the distressed family of a Government employee, who has died in harness. The rules are designed to provide for an exception to the constitutional requirement of every eligible candidate being given an equal opportunity to compete for any public office. The exception is sustained by the employers attempt to save the family of a deceased employee from destitution and penury. An interpretation which advances, furthers and fulfils that object has therefore to be preferred over one which may have the effect of impeding, obstructing or hampering the grant of the benefit to the deserving. Strict interpretation resulting in denial of benefit otherwise admissible under the rules to a deserving dependant of the deceased employee will defeat the purpose underlying the rules and make the scheme insensitive and wooden instead of purposeful, dynamic and ameliorative. Such an interpretation must therefore be eschewed from consideration.
8. The second and an equally important feature is that the requirement of making an application within a period of one year is stipulated along side, yet another requirement as to the form in which the application must be made. The expression "within one year from the date of death of the Government servant in such form as may be notified by the Government" is not therefore a matter of substance, but the form and the procedure to be adopted.
9. The third aspect is no less important and this relates to the importance of the requirement. The only purpose behind stipulating a time frame for making an application is to discourage old and stale claims for compassion. That purpose is not entirely defeated if the provision is understood as a directory provision for the same would provide the normal period to apply without martyring genuine cases where delay was explainable but the explanation may not be considered by a mechanical and pedantic application of the rule. That is so because a family in distress does not gain from delaying an application for a compassionate appointment. No litigant may actually benefit from the delay in instituting an application by which he seeks relief from the Court, All the same, human affairs are so complex that it is difficult to provide for every possible contingency. Human reactions may indeed be as varied as the situations or the temperament of those placed in the same. What is therefore important is that an application should be made with reasonable expedition ordinarily within a period of one year from the date of the death of a Government servant. But in situations where for unforeseen or unavoidable reason, there is a delay in the making of the application, the same should not in itself disentitle the applicant for consideration. Any other interpretation may result in injustice and hardship as in the case of an applicant who suffers from a disability like minority or lunacy. While in the case of minors proviso to Rule 5 stipu-
lates that the period shall be reckoned from the date he attains majority, there is no provision for a similar treatment to a person who suffers from lunacy and would ordinarily be entitled to the benefit of extended period reckonable from the date he recovers from the disease. Take also a case where the applicant while on his way to file the application meets with an accident and is prevented for the reasons beyond his control from filing the application. Rejection of any such application only on the ground that the same was received after the expiry of the stipulated period, would cause extreme hardship which the rule making authority could never have intended to cause. It is true that while interpreting provisions prescribing limitation considerations of equity are irrelevant and that certain amount of hardship is implicit in such provisions yet the distinction between cases under the Limitation Act and those under statutes like the one we are dealing with lies in the absence of any provision, analogous to Section 3 of the Act, which obliges the Court to dismiss a suit, appeal or application if it is filed beyond the period of limitation prescribed even when limitation is not set up as a defence. There is no equivalent provision in the compassionate appointment rules providing for the consequence of making an application beyond the period stipulated for the same. The absence of any such provision is a matter of considerable importance while determining whether the provision is directory or mandatory. Suffice it to say that the object underlying the rules, the language employed therein, the absence of any provision, stating the consequences of the violation of the requirement prescribed, the possible injustice and hardship which may arise in cases where the benefit may otherwise be lawfully due, all go to show that the intention of the rule making authority never was to make the requirement of filing an application within one year, a mandatory requirement so as to non-suit a deserving applicant on that ground alone. That should not be understood to mean that applications made after one year should without disclosure of any sufficient cause for the delay be considered and granted. The rule should ordinarily be complied with even when the provision contained in the same is directory in nature. In other words where an application is made beyond the period prescribed, the competent authority would be justified in demanding an explanation for the delay but once the delay is explained satisfactorily, the application need not be dismissed only on the ground that the same was belated.
10. Coming then to the facts of the present case, the application of the petitioner has been dismissed only on the ground that the same had been filed beyond the time prescribed. That approach was, in my opinion, not justified. It was argued on behalf of the petitioner that the delay had been occasioned on account of the confusion that had arisen out of the quashing of the earlier rules and the matter reaching the Supreme Court. During the interregnum, the petitioner claims to have shifted to Bombay to earn his livelihood and provide for 7 other members of the family six of whom happen to be the female including the mother. Non-consideration of the claim made by the petitioner only on the ground of delay would therefore defeat the purpose and result in miscarriage of justice.
11. In the result, this writ petition succeeds and is hereby allowed with a direction to the respondents to consider the petitioner's application for a compassionate appointment in accordance with the rules on the subject treating the same to have been filed within the time allowed. No costs.