Karnataka High Court
Smt. Lalitha Laxmana Kundargi Alias ... vs Managing Director, Karnataka Handloom ... on 20 July, 1999
Equivalent citations: ILR1999KAR3900, 2000(1)KARLJ302
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER
1. Petitioner is the widow of one Shivaputrappa Ramachandrappa Yanakanchi who was working as Helper under the first respondent-corporation. He died while in service on 25-7-1995. A copy of the death certificate is produced vide Annexure-A. Petitioner claims that she has one minor child and she and her minor son have no source of livelihood. She, therefore, applied to the first respondent for appointment on compassionate grounds, as helper, on 4-8-1995, within ten days from the date of death of her husband. She was aged 34 years old at the time of such application. The said application was rejected vide Annexure-C, dated 22-8-1998, on two grounds. The first is that she has not passed the 8th standard, which is the prescribed minimum qualification for the post of Helper-II. Secondly, she is aged more than 30 years, which is the maximum age fixed for appointment. Feeling aggrieved, petitioner has filed this petition and sought quashing of Annexure-C, dated 22-8-1998 and a direction to the first respondent to consider her representation dated 26-8-1998 (Annexure-E).
2. Respondents have relied on the scheme for appointment on compassionate grounds contained in the order dated 3-4-1997 (Annexure-R1), to reject the claim of petitioner. While it is admitted that a widow is eligible for appointment, it is pointed out that clause D(ii) provides that a person claiming appointment shall be within the age limit specified for the post in the relevant Rules for Recruitment and clause D(iii) provides that the person seeking appointment should possess the minimum qualifications specified for the post in the relevant Rules for Recruitment. Respondents contend that as the petitioner does not fulfil those two requirements, her application was rejected.
3. Petitioner's husband died on 25-7-1995. Her application dated 4-8-1995 for compassionate appointment was received by the respondent-corporation on 11-8-1995. It is not in dispute that when the petitioner's husband died, and when the application was made, the scheme relating to appointment on compassionate grounds that was in force was the Office Order No. KHDC/ADM/14-88/1913, dated 12-5-1988. Clause (5) of the said office order provided that no person shall be eligible for appointment unless he or she is within the age limit and possessed the qualifications prescribed for the post in the Rules of Recruitment of the Corporation. But, clause (7) of the scheme, extracted below, contains provisions for relaxation of the age limit and the minimum educational requirement:
"(7) However while making appointment to Group 'D' posts, the age may be relaxed by four years in the lower age limit and five years in the upper age limit. Educational qualification may also be relaxed".
4. It would thus be seen that the petitioner is entitled to be considered for appointment. The date of birth of petitioner is 1-6-1961 and as on the date when she made the application, she was aged 34 years. Under the KHDC Staff Regulations, 1979, the maximum age limit for appointment to Group 'D' posts is 30 years. If the said age limit is relaxed by five years under clause (7) of the scheme, the age limit would stand raised 35 years. Petitioner was only 34 years when she made the application, well within the permissible age limit. Therefore, rejection of her application on the ground that she is overaged is liable to be rejected.
5. The KHDC Staff Regulations, 1979 prescribe the minimum qualification for the post of Helper-II, as pass in 8th standard. At the time when the petitioner made the application for compassionate appointment she had passed 7th standard. But, clause (7) of the scheme provides for relaxation of educational qualification. It may also be noticed that subsequently, she even appeared for SSLC examination, but failed. Therefore, the petitioner's case ought to have been considered by relaxing the prescribed educational qualification, as petitioner was only one standard short of eighth standard.
6. When the application was received on 11-8-1995, it ought to have been considered within a reasonable time. It is now well-settled that the appointment on compassionate grounds is offered to help the family of the deceased at the time of financial crisis caused on account of the death of breadwinner. In such circumstances, the employer cannot delay the consideration of the application and then contend that the applicant is not entitled for the appointment, on the ground that long after the application, different norms have been prescribed for appointment on compassionate grounds. Instead of considering the application of the petitioner, under office order dated 12-5-1988, by giving necessary relaxation under clause (7), the corporation has chosen to postpone consideration on the ground that the Government had issued a circular dated 8-11-1995, imposing ban on fresh appointment and therefore her application was not considered. Firstly, that is not a ground for not considering applications for compassionate appointment as they do not fall under regular appointments. Secondly, the ban came into force only 8-11-1995, whereas the petitioner made her application on 11-8-1995, long before the ban came into force. Petitioner is not responsible for the delay in considering her application. Hence, petitioner cannot be denied the benefit of the scheme dated 12-5-1988, nor can her claim be rejected by applying the scheme dated 3-4-1997 which came into effect nearly 20 months after the application for appointment.
7. It is next contended that clause (9) of the office order dated 3-4-1997 provided that all the applications for appointment on compassionate grounds including those pending on the date of commencement of the said scheme (3-4-1997) shall be disposed of in accordance with the said scheme dated 3-4-1997 within a period of three months; that as the petitioner's application was pending on 3-4-1997 when the new scheme came into force, the Corporation was bound to consider the application only on the basis of the new scheme dated 3-4-1997; that the new scheme did not contain any provision for relaxation of either the age limit or the educational qualification; and that therefore petitioner's application was rightly rejected.
8. In interpreting clause (9) of the scheme, it is necessary to bear in mind, one of the fundamental legal principles: Nullus commodum capere potest de injuria sua propria ('No man can take advantage of his own wrong'). The respondent, which owed a duty to consider the application dated 4-8-1995 of the petitioner, the widow of a deceased employee, for appointment on compassionate grounds under the scheme dated 12-5-1988, did not do so for more than three years and then on 22-8-1998 rejected the application which ought to have been granted under the scheme dated 12-5-1988 on the untenable ground that by the time the application was considered, a new scheme dated 3-4-1997 with different terms had come into force and under the new scheme, the petitioner's application could not be granted. Respondent is a 'State' within the meaning of Article 12 of the Constitution of India and is required to act fairly and reasonably. It cannot deny appointment to the destitute widow of a deceased employee with a minor child, an appointment in the lowest cadre, on compassionate grounds under the beneficial scheme intended to render a helping hand to such a family member of the deceased employee, by deliberately postponing consideration of the application. The Supreme Court has repeatedly held that in claims for appointment on compassionate grounds, there should not be any delay in appointment, as the purpose of providing such appointment is to mitigate the hardship due to death of the breadwinner of the family; and such appointment should be provided immediately to redeem the family in distress and it is improper to keep such application pending for years - vide Sushma Gosain v Union of India , Phoolwati v Union of India, and Umesh Kumar Nagpal v State of Haryana.
9. Therefore, the proper and equitable way in which Rule 9 of the new scheme dated 3-4-1997 can be interpreted is thus: If the application filed by the dependent family member under the old scheme is pending on the date when the new scheme came into force, on account of any negligence or want of compliance by such applicant, it should be disposed of under the new scheme. If the application was kept pending by the Corporation for no fault of the applicant, but due to delay in consideration by the Corporation and if the old scheme is more beneficial to the applicant, the applicant is entitled to require the employer to consider such application, in terms of the old scheme which was in force on the date of death and date of application.
10. As far as this case is concerned, the financial position of the petitioner has not improved by passage of time. Financial crisis caused to the family of petitioner on account of the death of petitioner's husband still continues on this date. No other member of the family of the deceased is earning. It is not the case of the respondent that a post in the grade of Helper-II (a Group 'C' post) is not available. Hence, the appointment on compassionate grounds cannot be denied.
11. In view of above, this petition is allowed. Annexure-C, dated 22-8-1998 is quashed. First respondent is directed to consider the case of petitioner for appointment on compassionate grounds by relaxing the age requirement and educational qualifications as per clause (7) of the scheme dated 12-5-1998. Compliance within four months of the date of receipt of a copy of this order.