Karnataka High Court
The State Of Karnataka And Ors vs Veerendra S/O Late Chandrakant Nagappa on 19 January, 2018
Bench: L.Narayana Swamy, G.Narendar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19th DAY OF JANUARY 2018
PRESENT
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE G.NARENDAR
WRIT PETITION NO.204846/2016 (S-KAT)
BETWEEN
1. The State of Karnataka,
Rep. by its Secretary,
Water Resources Department
(Minor Irrigation),
M.S.Building,
Bengaluru-560 001.
2. Chief Engineer,
Minor Irrigation (North) Division,
Vijayapur.
3. The Asst. Executive Engineer,
Minor Irrigation Department,
Sub Division No.1,
Chincholi, Gulbarga District.
...Petitioners
(By Sri R.V.Nadagouda, AAG)
2
AND
Veerendra
S/o Late Chandrakant Nagappa,
Age 21 years, Unemployed,
R/o Dongargaon,
Taluk Gulbarga,
Dist. Gulbarga
...Respondent
(By Sri Chaitanyakumar Chandriki, Advocate)
This Writ Petition is filed under Article 226 and 227
of the Constitution of India, praying to issue writ of
certiorari or any other writ of the nature of certiorari or
any other appropriate writ or order or direction to quash
the order passed by the Karnataka Administrative Tribunal
at Bengaluru in Application No.284/2006 dated 21.11.2015
and pass any other appropriate order.
This petition coming on for preliminary hearing this
day, L.NARAYANA SWAMY J., made the following:
ORDER
The respondent has approached the Karnataka Administrative Tribunal at Bangalore in Application No.284/2006 with a prayer to set aside the endorsement issued by the Chief Engineer, Minor Irrigation, North Division, Bijapur dated 04.02.2004 and another order dated 12.02.2014 and further sought direction to the 3 respondents to consider the case of the petitioner for appointment to the post on compassionate ground. The said application came to be allowed and a direction was issued to the respondents to consider the case of the petitioner for appointment to the post on compassionate ground. This petition filed by the Government - 2nd respondent.
2. The learned Additional Advocate General for the respondent submits that order of the Tribunal suffers from various grounds. Firstly, it is contrary to the provision of Karnataka Civil Services (Appointment on Compassionate Rules) 2004. The father of the petitioner died on 14.02.1998 and as per the Rule provided therein, the applicant had not attained the age of majority, then the petitioner attained majority on 08.10.2003 and therefore he made application for appointment on compassionate ground on 10.11.2003. The said application was rejected on the ground that, by that time, the Rule was amended by bringing in 2004 Rules. The prevailing 4 Rule is that the applicant should make an application within one year from the date of death of Government employee. As per the said provision the case of the petitioner was rejected since he did not make application within a period of one year. This was challenged by the respondent-petitioner on the ground that 2004 Rule operated prospectively and not retrospectively. Hence, the Rules prevailing as on the date of death, i.e., 1985 Rules, should have been applied in this instant case. The case of the petitioner has been considered by the Tribunal by referring the judgment in W.P.No.32699/2002 in the case of Ravikumar vs. State of Karnataka and directed the respondents to consider the petitioner for the appointment on compassionate ground. It is also contrary to the judgment of the Hon'ble Supreme Court reported in (2014) 13 Supreme Court Cases 583 in the case of MGA Gramin Bank vs. Chakrawarti Singh and referred at Para No.15, wherein it has been held that - 5
'as per the scheme existing on the date the cause of action had arisen i.e., death of the incumbent on the post.', and further held that 'in such a situation, the case under the new scheme has to be considered in SBI (2010) 11 SCC 661.'
3. Further, the learned Additional Advocate General also relied on the judgment of this Court reported in (2008) 2 Kant LJ 222 between K.M.Prakash vs. State of Karnataka and another, and relies on paragraph 8 of the judgment.
4. On the other hand the learned counsel for the respondent submits to dismiss the petition. He submits that as it held by the Karnataka Administrative Tribunal, 2004 Rules. Rule is perspective in nature and not retrospective. Unless it expressly comes out to that effect, and since 2004 Rules is silent in respect of operation whether prospective or retrospective, it must be 6 understood only prospective. Hence, the petitioner made the application within one year from the date he attaining the age of majority. It is in compliance of 1995 Rule. Accordingly, he supports the order passed by the Karnataka Administrative Tribunal and submits to dismiss the petition.
5. We have heard learned counsel for the respective parties.
6. Facts are not in dispute. The father of the respondent died on 14.02.1998. At that time, Rules prevalent was Karnataka Civil Services (Appointment on Compassionate Ground) Rule 5, 1985. The said Rule provides that in case of death of a person who is a Government Employee, the eligible dependant under the said Rule, could make an application within one year from the date of his attaining majority. As per the said Rule, in fact the dependent of the government servant, who in case if a minor, could make an application for appointment on compassionate ground within one year of attaining 7 majority. Rightly, in compliance of 1985 Rule, the respondent/applicant made an application on 10.11.2003 and the applicant claimed his case for consideration under the prevailing Rule i.e., 1995 Rules. The authorities have considered the case of the petitioner and rejected in the year 2004. The reasons assigned are that as on date of consideration of the application of the petitioner, new Rule has come into existence and as per the new Rule, only applications made within one year from the date of death of the government employee are considered, subject to the requirement of compliance of other ingredients.
7. The said rejection were challenged before Karnataka Administrative Tribunal. The question would be arise before this Court is whether the Rules prevailed as on the date of death is to be considered or from the date of amendment brought into Rule is to be considered. In this regard the learned Additional Advocate General placed reliance on the judgment of the Hon'ble Supreme Court reported in (2010) 11 Supreme Court Cases 661 8 between State Bank of India and another vs. Rajkumar, in Para No.13 held that, -
'Further, where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts.'
8. Another judgment reported in (2014) 13 Supreme Court Cases 583 between MGB Gramin Bank vs. Chakrawarti Singh, in Para No.15 it has been held that, -
'In case the scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the scheme existing on the date the cause of action had arisen i.e., death of the incumbent on the post. In SBI (2010) 11 SCC 661, this Court held that in 9 such a situation, the case under the new scheme has to be considered.'
9. At this stage the counsel for the respondent submits that the application of the wife of the deceased who made an application for appointment on compassionate ground, could have been considered authority.
10. Per contra learned Additional Advocate General placed the very application made by the wife of the deceased and submitted that what was requested by the wife is to consider the case of her son who was studying 7th standard and further requested the respondent to keep the post vacant in anticipating he attaining the age of majority, and submitted there cannot be reservation and cannot be keep the post vacant indefinitely. In this regard this Court held in the case of (2008) 2 Kant LJ 222 between K.M.Prakash vs. State of Karnataka and another, it has been held that,-
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'It is well-established by catena of decisions of the Apex Court that provision for appointment on compassionate grounds is made to tide over the sudden crisis caused by the death of a bread winner who leaves the family in penury without any means of livelihood and that such a provision is really in the nature of an exception to the general principle of equality in the matter of recruitment. It is also to be remembered that such a provision made by way of an exception to the General Rule cannot subsume the main principle. Therefore, there cannot be any reservation of the vacancy indefinitely till such time the minor attained majority after a lapse of several years. Therefore, the provision made prescribing the period of one year within which the applicant ought to have attained majority from the date of death of the employee cannot be termed as arbitrary or illegal.'
11. Judgments referred above which makes very clear the question of law that the compassionate appointment is not a matter of right. Though an application is made within one year, it does not confer any 11 right. The applicant has to satisfy as to whether he suffers by virtue of penury and etc. Unless it is satisfied there cannot be any claim. The post cannot be kept vacant indefinitely till a person attains majority. The applicant who can makes application, seeking compassionate appointment, has to accept the post; and if he makes an application within one year from the date of death of government employee, then it is for the authorities to consider. It is observed that when person who makes application satisfies the requirement for the purpose of claiming compassionate appointment and authorities have to take steps at an earliest only to give succor to the distressed family. The Tribunal has not considered the said judgment of the Hon'ble Supreme Court in its letter and spirit. Hence, it is held that the rejection of the application made by the petitioner herein, is sound and proper and is in accordance with 2004 Rules. Accordingly, order dated 21.11.2015 passed in Application No.284 of 2006 by the Karnataka Administrative Tribunal, is set-aside. 12
Petition accordingly, allowed.
Sd/-
JUDGE Sd/-
JUDGE sn