Karnataka High Court
Smt. Mangala W/O. Kushappa Kurbet vs The Government Of Karnataka on 30 September, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
1 W.P NOs.110262-110263/2017
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30th DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NOs.110262-110263/2017 (GM-RES)
Between:
1. Smt. Mangala W/o. Kushappa Kurbett,
Age 52 years, Occ: Household,
R/o. 3rd Ward, Janata Plot Yattinguda,
Tq and Dist. Dharwad.
2. Pundalik S/o. Kushappa Kurbett,
Age 27 years, Occ: Unemployed,
R/o. 3rd Ward, Janata Plot Yattinguda,
Tq. and Dist. Dharwad.
...Petitioners.
(Sri. Basanna N. Pattekar, Advocate)
And:
1. The Government of Karnataka,
Represented by Under Secretary,
Agricultural Department (Services & Coordination)
M.S.Building, Dr. Ambedkar Road,
Bangalore-560001.
2. The Registrar,
The University of Agricultural Sciences,
Krishi Nagar, Dharwad-580005.
2 W.P NOs.110262-110263/2017
...Respondents
(Sri. V.S.Kalasurmath, HCGP for R1;
Sri. Girish Hulmani, Adv. for R2)
These writ petitions are filed under Articles 226 &
227 of Constitution of India, praying to (a) quash
endorsements issued by respondent No.1, dated
23.02.2015 and to quash endorsement issued by
respondent No.2 dated 28.05.2015 vide Annexure-A and
B, etc.,
These petitions coming on for further hearing on
02.09.2020 having been heard and reserved for order,
this day the Court made the following:
ORDER
1. The petitioners are before this Court seeking for certiorari to quash the endorsement issued by respondent No.1 dated 23.02.2015 as also for a mandamus directing respondent No.2 to appoint the petitioner No.2 in a post suitable to his educational qualifications in the respondent No.2 establishment pursuant to the representations made by petitioner Nos.1 and 2 dated 25.05.2011, 3 W.P NOs.110262-110263/2017 13.11.2011, 06.05.2014 and 06.11.2014 vide Annexure-H and J forthwith.
2. The husband of the Petitioner No.1 and father of the Petitioner No.2, namely Sri. Kushappa S/o. Adiveppa Kurbett was serving under the Respondent No.2 University of Agricultural Sciences as sports helper from 29.12.1994; he was reported missing from 31.05.2010 from the place of service, the Petitioner and others, as also the relatives and well-wishers tried their level best to trace him, but all efforts ended in failure. Hence, the Petitioners approached Respondent No.2 claiming for monetary benefits, which was not granted.
3. Aggrieved by the same, the Petitioner No.1 filed Writ Petition No.79000/2013 before this Court. This Court observing that the Government Orders 4 W.P NOs.110262-110263/2017 dated 21.03.1998, 29.12.1994 and circular dated 01.01.1998 had been issued so as to help the family members of the missing government servants by following a definite legal procedure directed the Respondents to consider the representation made by the Petitioners and extend the benefit of orders/circulars aforestated and make payment of the due amounts by accepting the documents produced along with survivorship certificate subject to the Petitioners providing two solvent sureties, producing survivorship certificate within a period of six weeks from the date of production of such survivorship certificate.
4. Subsequent thereto, on the basis of the representation made, the Petitioner No.1 was provided with the pensionary benefits amounting to Rs.4,400/- per month after deducting an amount of Rs.2,500/- towards the loan obtained by 5 W.P NOs.110262-110263/2017 the husband of Petitioner No.1, apart therefrom an amount of Rs.3,50,000/- was paid as death benefits.
5. The Petitioners contending that the same is very meagre and the Petitioners would not be in a position to maintain their family had applied for grant of compassionate appointment by enclosing survivorship certificate, pension papers, medical certificate, B.Com marks card, etc., of the Petitioner No.2.
6. The said application having been made to the Registrar of the University of the Agricultural Sciences, Dharwad. The said Registrar recommended the applications to Respondent No.1
- State for necessary orders.
6 W.P NOs.110262-110263/2017
7. Respondent No.1 rejected the application stating that the Petitioner No.2 was not qualified for appointment in view of the Karnataka Civil Services (Compassionate Appointment) Rules, 1996. The said order of respondent No.1 dated 23.02.2015 was informed by the respondent No.2 under cover of his letter dated 20.05.2015. It is aggrieved by the above; the Petitioners are before this Court contending that the Registrar, University of Agricultural Sciences was the sole and competent authority to consider the application filed by the petitioners in terms of Section 31(7) of the University of Agricultural Sciences Act, 2009. The same is extracted for easy reference as under:
"31. Directors, Deans, Registrar, Comptroller etc.:-
(7) Registrar:
(a) He shall an academician in the field of
Agricultural Sciences not lower in rank that of a 7 W.P NOs.110262-110263/2017 Professor of the University; or an officer of the State Government not below the rank of the Deputy Secretary to Government.
(b) Shall be member secretary of the Board of Management and shall be permanent member of all councils.
(c) Shall be responsible for the due custody of records and common seal of the University.
(d) Shall receive applications for entrance to the University, and shall keep a permanent record of all courses, curricula and other information as may be necessary.
(e) Shall be responsible for human resource development and general administration in the University as prescribed.
8. It is further contended that, even otherwise once the Respondent No.2 had recommended the case of the appointment of the Petitioner No.2 for compassionate appointment, Respondent No.1 ought to have approved the same, instead of rejecting the said application.
8 W.P NOs.110262-110263/2017
9. Sri. Basanna N. Pattekar, learned counsel appearing for the Petitioner apart from addressing extensive arguments has also filed his written submission. During the course of oral submission and in the written submissions. He has contended as under:
9.1. That the University of Agricultural Sciences Act, 1963 has been repealed by the University of Agricultural Sciences Act, 2009.
Therefore, the reference to the said 1963 Act would not serve any purpose, the powers of the Registrar in the 1963 Act covered under Rule 16 has been widened in the 2009 Act. Therefore, the Registrar had the powers to consider and approve the application filed by the Petitioners.
9 W.P NOs.110262-110263/2017 9.2. That the Karnataka Civil Services (Appointment on Compassionate Ground) Rules, 1996 are not applicable to the present facts and circumstances since the University of Agricultural Sciences is an independent, autonomous, statutory body and as such all aspects relating to the said University is to be regulated by the 2009 enactment, there is no need to refer to or rely upon the Karnataka Civil Services (Appointment on Compassionate Ground) Rules, 1996. 9.3. He relied on the decision in the Union of India and others Vs. Bhagwan Singh, reported in (1995) 6 SCC 476, more particularly paragraph No.7 thereof which is reproduced as under:
"7. The above decision was followed in Phoolwati v. Union of India. The reason for making compassionate appointment, which is
10 W.P NOs.110262-110263/2017 exceptional, is to provide immediate financial assistance to the family of a government servant who dies in harness, when there is no other earning member in the family. Matters which should be considered while giving an appointment in public services on compassionate grounds have been laid down by a Bench of this Court in Umesh Kumar Nagpal Vs. State of Haryana to the following effect:
"As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post.
However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who
11 W.P NOs.110262-110263/2017 may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crises. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crises that a job is to be offered to the eligible member of the family...."
It is settled law, that even if the Court reaches the conclusion that the Applicant has made out a case, all that the High Court or Administrative Tribunal can do, is only to direct the authority concerned to consider the claim of the Applicant in accordance with relevant law or rules, if any.
9.4. He relies on the Judgment passed in W.P.No.23626/2015 dated 05.02.2016 between Sri. V.Yellappa S/o. Sri. Venkatamaranappa Vs. The Indian Institute of Horticulture Research (KAR) 12 W.P NOs.110262-110263/2017 at paragraph No.7 thereof which is reproduced hereunder for easy reference:
"7. The order of this Court is wrongly interpreted by the respondent ignoring the latter portion of the order i.e. the observations made in para(ii) of the operative portion of the order. It is pertinent to note that the endorsement/reply dated 03.06.2014 as well as the reply dated 18/19.11.2014 are issued on a wrong interpretation of the order of this Court. Reply of the respondent is only based on the order of this Court, quashing the direction issued by the Labour Court to provide job to the Petitioner albeit this Court categorically directed the respondent to take into consideration the background of the Petitioner's case and to consider the claim of the Petitioner in providing employment to the Petitioner if there is any vacancy. The contention of the Petitioner that the respondent has failed to consider the case of the Petitioner in the light of the directions issued by this Court in Writ Petition No.20402/2005 has some force. Accordingly, the endorsement dated 03.06.2014 vide Annexure "D" is set aside. The respondent is directed to re-consider the representation dated 06.05.2014 and the legal notice dated 17.10.2014 issued by the Petitioner along with the material information submitted by the Petitioner obtained under RTI Act and to pass appropriate orders in accordance with law in the light of the directions issued by this Court at para 5(ii) of the order passed in Writ Petition No.20402/2005 dated 26.10.2006 as expeditiously as possible."
13 W.P NOs.110262-110263/2017 9.5. That reliance by the respondent on the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996, when the respondent has power in terms of Section 31(7) of the 2009 Act to appoint the petitioners on compassionate grounds is misconceived. That reliance on Karnataka Civil Services Rules amounts to fraud on the part of the respondents, and on this ground, he submits that the petition has to be allowed.
10. Per contra, Sri. Girish Hulmani, learned counsel appearing for respondent No.2 would submit that 10.1. The husband of the Petitioner No.1 is stated to have gone missing on 31.05.2010, 14 W.P NOs.110262-110263/2017 pursuant thereto the pensionary benefits were made available to the petitioners. 10.2. It is only on 06.05.2014 that an application was filed by the petitioners seeking for the appointment of the petitioner No.2 on compassionate grounds.
10.3. This representation was forwarded by respondent No.2 to respondent No.1 in terms of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 which came to be rejected by respondent No.1 after examining the same and holding that there was no provision for compassionate appointment under the said Rules.
15 W.P NOs.110262-110263/2017 10.4. That since missing employee would have attained the age of superannuation as on the date on which the application can be filed, that is after 7 years of disappearance of the employee, the same could not be considered. In pursuance of the same, respondent No.1 issued endorsement dated 28.05.2015.
10.5. That respondent No.2 being a statutory body established under the Karnataka Act 14 of 1986 is bound to follow the rules and regulations of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 and in terms of Rule 5 thereof any dependent seeking for compassionate appointment would have to make an application within one year from the date of death of the Government Servant.
16 W.P NOs.110262-110263/2017 10.6. In the present case Sri. Kushappa went missing on 31.05.2010, application made on 06.05.2005 was beyond the period of one year and could not be considered. 10.7. That the petitioners had not obtained a decree from the Civil Court declaring civil death of Sri. Kushappa Kurbett and as such in the absence of the Decree to that effect, the respondent could not consider the application of the petitioners. 10.8. Even to make an application for obtaining of such a decree, the petitioners ought to wait for a period of seven years from the date of which the person went missing, hence an application could only be filed on 01.06.2017 before the jurisdictional Court.
17 W.P NOs.110262-110263/2017 10.9. The application dated 06.05.2014 is even prior to the seven years period and therefore could not be considered. 10.10. That Sri. Kushappa Kurbett was born on 01.06.1955 and would have attained the age of superannuation on 31.05.2015. Thus the Decree even if were to be obtained would be obtained post 01.06.2017 which would be after two years after the superannuation on 31.05.2015. This not being in compliance of Rule 5 of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, the petitioners were not entitled to be considered for appointment.
10.11. To support his arguments, he relied upon the decision of the Apex Court in the case of 18 W.P NOs.110262-110263/2017 LIC of India Vs. Anuradha, reported in (2004) 10 SCC 131, more particularly paragraph Nos.12 & 14 thereof. The same are extracted hereunder:
"12. Neither Section 108 of Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time. The presumption stands un- rebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death.
14. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following
19 W.P NOs.110262-110263/2017 words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a 20 W.P NOs.110262-110263/2017 Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise."
10.12. He relied on the Judgment of Allahabad High Court in CM.W.P.No.19124/2019 dated 04.12.2019 between Vivek Kumar Verma Vs. Uttar Pradesh Rajya Vidyut Utpadan Nigam Ltd., and Ors. referring to paragraph Nos.3 and 10 thereof. The same are reproduced hereunder:
"3. The order of the Corporation is assailed by counsel for the Petitioner, who submits that relevant date of death in the facts of the present case ought to be taken as 10.3.2010, particularly as an intimation was given to the concern police station on 12.3.2010 itself, and that the declaration of civil Court granted on 7.7.2018 would relate back to the date when Petitioner's father went missing. For such contention, learned counsel for the Petitioner places reliance upon a judgment of Nagpur Bench of the Bombay High Court in Second Appeal No. 18 of 2016 (Sou. Swati w/o Abhay Deshmukh Vs. Shri Abhay), decided on 26.2.2016. Reliance is also placed upon a Division Bench judgment of the Andhra Pradesh High Court 21 W.P NOs.110262-110263/2017 in Writ Petition No. 34859 of 2016 (Union of India, represented by its Secretary and others Vs. Polimetla Mary Sarojini and another), decided on 31.1.2017.
10. Learned counsel for the Petitioner has also placed reliance upon the death certificate issued by the competent authority, in which the date of death is mentioned 10.3.2010. This document would not be of much relevance, inasmuch as the registration of date of death appears to be based upon the Decree passed by the civil Court itself. This Court had already taken note of the Decree to hold that presumption of death in terms of Section 108 of the Indian Evidence Act would arise only on 10.3.2017. In that view of the matter, mere registration of date of death in the death certificate would not be material and the declaration of civil Court would be binding."
10.13. That the deeming fiction of death on account of the person being missing can only accrue after the person has been missing for a period of seven years. In this background he submitted that the petition as filed is liable to be rejected.
11. Having heard both the counsels, the questions that would arise for consideration are as follows:
22 W.P NOs.110262-110263/2017 (1) Whether the Karnataka Civil Services (Appointment on compassionate ground), Rules 1996 is applicable to the University of Agricultural Sciences, Dharwad or is solely governed under the University of Agricultural Sciences Act, 2009?
(2) Whether for the purpose of considering compassionate appointment in respect of the persons, who are missing from 7 years obtaining a decree declaring the civil death of such persons is mandatory?
(3) In the event of such a decree not having been obtained, can a survivorship certificate be relied upon?
(4) In the event of a decree having been obtained or survivorship certificate being obtained, whether the date of deemed death would be from the date of disappearance or from the date on which the Decree is passed?
(5) Whether if a family of a deceased employee were to receive pensionary benefits and retirement benefits couldsuch family claim for compassionate appointment after having received the pensionary and retirement benefits?
12. Answer to question No.1: "Whether the Karnataka Civil Services (Appointment on compassionate ground), Rules 1996 is applicable to the University of Agricultural Sciences, Dharwad or is solely governed under the University of Agricultural Sciences Act, 2009?"
9.1 It is not in dispute that the University of Agricultural Sciences is a statutory body 23 W.P NOs.110262-110263/2017 established under the University of Agricultural Sciences Act, 1963. The said act covers several aspects as regards the administration and working of the University.
It cannot also be disputed that the said University has been established by the State of Karnataka for the purpose of better administration of all educational courses relating to agriculture and related subjects.
The funding of the University is by the State of Karnataka, all the salaries, emoluments, etc., is also paid by the State of Karnataka.
9.2 In regard thereto, as submitted by Sri. Girish Hulmani, the University has adopted various rules formulated by the State of Karnataka in respect of Services including Karnataka Civil Services (compassionate appointment) Rules, 1996. Such being the case any appointment 24 W.P NOs.110262-110263/2017 on compassionate grounds could be covered by these rules.
9.3 Though the Registrar has powers under Section 31(7)(e) of the Karnataka Universities Act and is responsible for Human Rights development and general administration in the University, he does not have powers for appointment on a compassionate basis by himself, but he has to follow the process and procedure prescribed under Civil Services (Compassionate appointment) Rules. In terms thereof, whenever an application is received by the Registrar, he could consider the said application and either reject the same or recommend the same to the respondent No.1. It is only respondent No.1, who has the power to appoint and not the 25 W.P NOs.110262-110263/2017 Registrar. As such, I hold that it is the Karnataka Civil Services (compassionate appointment) Rules, 1996 which applies to the compassionate appointments to be made.
13. Answers to Question Nos.2 and 3:
(2) Whether for the purpose of considering compassionate appointment in respect of the persons, who are missing from 7 years obtaining a decree declaring the civil death of such persons is mandatory? (3) In the event of such a decree not having been obtained, can a survivorship certificate be relied upon?
13.1. In terms of Section 34 of the Specific Relief Act, a suit can be filed for declaration that a person is stated to suffer civil death, in the event of the said person not having been heard for a period of seven years, by proving the requirement under Section 108 of the Indian Evidence Act this essentially would imply that it is only after seven years that a 26 W.P NOs.110262-110263/2017 person can be presumed to be dead or declared to be dead. This declaration can only be done by the Civil Court of appropriate jurisdiction.
13.2. However, as regards the compassionate appointment this Court had earlier in W.P.No.79000/2013 dated 08.08.2013 between Smt. Mangala W/o. Kusheppa Kurabett Vs. The Registrar, The University of Agriculture and another held that providing of survivorship certificate should be sufficient for the purposes of providing pensionary benefits, as also retirement benefits. Even in terms of the Karnataka Government Servants (Family Pension) Rules, 1964, where the whereabouts of a person are not known considering that the delay in providing benefits to the family 27 W.P NOs.110262-110263/2017 for seven years would cause great deal of hardship, the government issued a circular on 25.05.1984 in terms whereof, a government servant disappears leaving his/her family, the said pensionary benefits mentioned shall be sanctioned by the Administrative Department in the Secretariat after observing the following formalities:
(i) The family must lodge a complaint with the concerned police station and obtain a report that the Government servant/pensioner has not been traced after all efforts have been made by the police.
(ii) An indemnity bond in the form appended should be taken from the family/nominee on oa stamp paper of the prescribed value with two solvent sureties, acceptable to the sanctioning authority, indemnifying the Government against any loss or claims in case the pensioner/Government servant re appear on the scene and makes any claim against Government in this behalf.
(iii) An undertaking should be taken from the family/nominee that all payments made will be adjusted against the payments due to the Government 28 W.P NOs.110262-110263/2017 servant/pensioner in case he/she reappears on the scene and makes any claim against Government.
6. (i) The family/nominee shall apply to the Administrative "Department though the Head of the Department for sanction of the benefits mentioned in sub-para (i) of Paragraph (4),
(ii) After the expiry of one year from the date of disappearance of the Government servant/pensioner, the family/nominee shall apply to the Administrative Department through the Head of the Department for sanction of Family Pension, death-cum- rtirement gratuity and arrears of Pension from the date of disappearance in accordance with the procedure prescribed in the Rules.
(iii) The accumulation in the Savings fund may be paid to the nominees or the heirs after the lapse of a period of one year following the month of disappearance subject to fulfillment of the conditions mentioned in Para(5) above. 13.3. Thus an exception is carved out for grant of pensionary benefits and an application could be made after a period of one year of the disappearance of the employee subject to the above conditions.
29 W.P NOs.110262-110263/2017 13.4. It would thus be anomalous for a family to wait for seven years to get a decree declaring the civil death of such person in order to apply for compassionate appointment, thereby depriving the said family of the immediate need for compassionate appointment on account of the sole breadwinner of the family having disappeared leaving them in a lurch.
13.5. If the family were required to wait for a period of seven years, then the whole purpose is lost since by that time, the damage which is likely to be caused to the family would have already been caused, the children might have lost their education, resulting in various social evils. Thus, I am of the considered opinion that for the purpose of 30 W.P NOs.110262-110263/2017 consideration for compassionate appointment, there would be no requirement for waiting for seven years and or obtaining a decree declaring the civil death of such person.
13.6. A survivorship certificate could always be relied upon. In the event of the application for a compassionate appointment being nominee on the records of the University, such records could be taken into consideration to offer a compassionate appointment to such nominee, extending the same benefit a family pension under the Karnataka Government Servant (Family Pension) Rules, 1964.
14. Answer to Question No.4: In the event of a decree having been obtained or survivorship certificate being obtained, whether the date of 31 W.P NOs.110262-110263/2017 deemed death would be from the date of disappearance or from the date on which the Decree is passed?
14.1. Though for the purpose of the Decree declaring the civil death of a person, the same would take effect from the date of disappearance, however, the proceeding for obtaining the Decree itself would have to be filed after a period of seven years of disappearance. In the event of such a decree having been obtained, the date of deemed death would be the date of disappearance and not the date of death of the person since the very basis of filing such proceeding is taking into account, the disappearance of the person for a period of seven years i.e. to say that the cause of action arose firstly on the date of disappearance and continues until a period of seven years thereafter. The right to 32 W.P NOs.110262-110263/2017 file proceeding arose after the completion of seven years period. The disappearance being the first cause of action, I am of the considered opinion that the deemed death could have taken place on the date of disappearance.
15. Answer to Question No.5: Whether if a family of a deceased employee were to receive pensionary benefits and retirement benefits could such family claim for compassionate appointment after having received the pensionary and retirement benefits?
15.1. In the present facts and circumstances, the case of the petitioner is that though they have received pensionary benefits, they are still in penury and not able to take care of themselves and thus have sought for compassionate appointment. The scheme of affording compassionate appointment is in order to take care of financial requirements of 33 W.P NOs.110262-110263/2017 the family which has been left high and dry on account of the untimely death of the earning member. So the essential element to be considered is whether the pensionary and retirement benefits are sufficient to take care of the needs of the family or not, there cannot be a straight jacket rule in this regards, this aspect has to be considered on case to case basis, in that appointing authority has to consider the eligibility of the family seeking for compassionate appointment by considering whether the pensionary and retirement benefits are sufficient to take care of the family or not. If it is then, there is no appointment which is required to be made. If it is not, it would be one of the relevant factors to be taken into 34 W.P NOs.110262-110263/2017 consideration for the purpose of such appointment.
16. In view of the answers to the above questions, applying the same to the present facts and circumstances, I am of the considered opinion that the Registrar of the Agricultural University could only receive and forward the applications for compassionate appointment to respondent No.1 for consideration and in the event of the said recommendation being approved by the respondent No.1, the respondent No.2 could appoint such person on a compassionate basis. If the said recommendation was not approved by the State, the respondent No.2 could not appoint the Applicant on a compassionate basis.
35 W.P NOs.110262-110263/2017
17. For the purpose of seeking a compassionate appointment, it is not required that the Decree from a Civil Court is applied for and obtained by the time an application for compassionate appointment is made. The survivorship certificate obtained after a period of one year after the disappearance should be sufficient for extending the benefit to such persons as done by the Karnataka Government Servants (Family Compensation) Rules, 1964 as extracted herein above, subject to compliance with providing of an indemnity bond or undertaking as stated therein. Once the period of seven years has got over, the Applicant is required to apply for, obtain and furnish the Decree from the appropriate civil Court declaring the death of the disappeared employee.
18. In view of the above, I pass the following order:
36 W.P NOs.110262-110263/2017
(i) The endorsement issued by respondent No.1 dated 23.02.2015 is hereby quashed.
(ii) Respondent No.2 is directed to consider the representation made by the petitioner Nos.1 and 2 dated 25.05.2011, 13.11.2011, 06.05.2014 and 06.11.2014 in the light of the observations made above, within a period of three months from the date of receipt of this order.
(iii) The petitioners are also at liberty to apply for, obtain and furnish a certified copy of this order to the respondents.
(iv) The date on which the respondents receive the certified copy to be taken into consideration for the purpose of the calculating the above time frame.
19. Accordingly, the petitions are partly allowed.
Sd/-
JUDGE *Svh/-