Karnataka High Court
Pramila Virupakshappa Nagaral vs The State Of Karnataka on 20 August, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF AUGUST, 2015
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
Writ Petition No. 2885/2008 (S-RES)
Between:
1. Pramila Virupakshappa Nagaral
Age. 51 years.
2. Pradeep Nagaral
S/o. Virupakshappa Nagaral,
Age. 22 years,
Both are residents of
Sector No.12, Plot No.C-40,
Behind District Hospital,
Navanagar, Bagalkot city.
... Petitioners
(By Shriyuths A. A. Pathan and G.H. Godkhindi, Advocate)
And :
1. The state of Karnataka
Represented by its Secretary
Municipal Administrative Department,
M.S. Building, Dr. Ambedkar Veedhi,
Bangalore - 560 001.
2. The Director
Municipal Administration Department
Visveshwaraya Tower,
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Dr. Ambedkar Veedhi,
Bangalore - 560 001.
3. The Chief Officer,
Town Panchayath, Kerur,
Bagalkot District.
... Respondents
(By Shri K.S. Patil, Government Pleader for respondents
No.1 and 2;
Shri G.S. Balagangadhar, Advocate for respondent No.3)
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to quash the impugned order of
respondent No.3 at Annexure-N, dated 26/28.02.2007 as illegal,
etc.
This petition coming on for final hearing, this day, the
Court has made the following:
ORDER
Heard the learned counsel for the petitioners and the learned Government Pleader appearing for the respondents.
2. The petitioners are mother and son. The husband of petitioner No.1 Virupakshappa is said to have died in harness when he was working as a peon in the office of the respondent No.3. He died on 26.04.1995 and a Death Certificate, in this regard, is produced.
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3. It transpires that, immediately after the death of Virupakshappa, the petitioner No.1 had made an application before respondent No.3 on 18.09.1995 informing the respondent No.3 that deceased Virupakshappa had left behind a minor son, the petitioner No.2, and that he should be given appointment on compassionate grounds, immediately on his attaining majority.
4. The petitioner No.2 was said to have been born on 05.04.1986 and he had attained majority on 05.04.2004. He had passed his S.S.L.C. Examination by then, and therefore, immediately on attaining majority he had filed an application before the respondent No.3 dated 20.05.2004, within one and half months after attaining majority, seeking appointment on compassionate grounds in conformity with the Scheme framed by the Government of Karnataka as per the Official Memorandum dated 22.08.1985, which prescribed the then prevailing conditions, according to which such appointments were made. The petitioner No.2 had furnished his credentials and other Cetificates to establish his bona fides in claiming appointment on compassionate :4: grounds. He had produced documents pertaining to his father, while he was in service in further proof of his claim.
5. However, the learned counsel appearing for the petitioners has erroneously stated that the appointment on compassionate grounds was governed by the provisions of the Karnataka Civil Services (Appointment on Compassionate Groun) Rules, 1996 (hereinafter referred to as '1996 Rules', for brevity) and has quoted the provision of the Rules, in extenso, in support of the petition. However, at the time of hearing, it is brought to the attention of the Court that it was the Official Memorandum dated 22.08.1985, which was prevalent and which was applicable since on the date of death of the employee concerned the 1996 Rules had not come into force.
6. It, however, transpires that the application of the petitioner No.2 was rejected on the ground that the petitioner No.2 was not entitled to appointment on compassionate grounds in terms of the 1996 Rules as amended in 2000 as per the :5: rejection order dated 26/28.02.2007 at Annexure-N. After receipt of the said rejection order, the petitioner No.1 is said to have addressed another letter dated 29.10.2007 requesting to reconsider the case of the petitioners under the Rules existing as on the date of the death of the husband of petitioner No.1, since the application was made by respondent No.1 as early as on 28.09.1995 itself seeking appointment of petitioner No.2 on his attaining majority.
7. It transpires that there was no reply to the said letter. Therefore, the petitioner No.2 had followed up with a further application dated 30.01.2008 and since that application was not considered by the respondents, the petitioners are before this Court.
8. The learned counsel for petitioners would now point out that in terms of the Official Memorandum dated 22.08.1985 the State Government itself had formulated the Scheme, which was applicable to the petitioners' case and in accordance with the :6: same the petitioner No.2 having made an application immediately on attaining majority he could not have been denied the benefit of the provision of employment on compassionate grounds.
9. It is pointed out that it is the law laid down by this Court that it is not the later Rules, which would be applicable in respect of such application and it is the relevant Rules in force as on the date of death of the employee which should be applied. And if the 1985 Scheme is applied, the petitioners cannot be denied employment on the ground that 1996 Rules do not provide for employment to persons such as the petitioner No.2, who has attained majority many years after the death of his father, and therefore, on that limited ground the learned counsel seeks that the petition be allowed and the respondents be directed to consider the case of the petitioners for appointment on compassionate grounds.
10. Though the State has not filed any Statement of Objections, the learned Government Pleader would vehemently :7: oppose the petition and would seek to contend that appointment on compassionate grounds long after the death of the father of petitioner No.2 would not serve the object of providing such employment. The object of providing employment on compassionate grounds is to bring the family, which has suffered a financial crisis when the lone bread winner has died, and it would be irrelevant in a case, such as this, when the father of petitioner No.2 has died in the year 1995 and the petitioners continue to claim appointment on compassionate grounds 20 years later, which is not tenable.
11. Secondly, it is contended that the petitioners seek appointment under the State and the State is precluded from making any appointment other than to a sanctioned post and the State is prohibited in law, in making any such appointment on the ground of compassionate appointment.
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12. The learned Government Pleader also places reliance on the proviso to Rule 5 of the 1996 Rules, which has been amended in the year 1998 and the same reads as follows -
"Provided that in the case of a minor he must make an application within one year from the date of the death of the Government Servant and he must have attained the age of eighteen years on the date of making the application;
Provided further that nothing in the first proviso shall apply to an application made by the dependent 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."
He would contend that the provision aforesaid would again disentitle the petitioners from seeking employment on compassionate grounds. Further, it is contended that even if the petitioner No.2 is to be considered for appointment on compassionate grounds, unless there is a vacancy and it is a sanctioned post, it is impossible for the State to accommodate the :9: petitioner No.2. On all these grounds, he would submit that the petition lacks merit and ought to be rejected.
13. Nodoubt, the Apex Court has laid down that the appointment on compassionate grounds long after the death of an employee of the State is not just as it would deprive another deserving person of employment and this would result in jettisoning the concept of equality and it results in an imbalance which ought to be avoided. When there are innumerable persons whose need is as much as a person claiming employment on compassionate grounds, if not greater, and therefore, it ought not to be considered.
14. Further it is also laid down that if applications are made pursuant to a Scheme such as in the present case on hand and if the application was made in time and in accordance with the same Scheme, the non-consideration of such an application also results in injustice. Hence, in the present case on hand, it is noticed that the petitioner No.1, the mother of petitioner No.2 had made an : 10 : application immediately on the death of the employee, bringing it to the attention of the respondents that under the Scheme aforesaid her son was entitled to be provided employment on compassionate grounds within three years of his attaining majority. Thereafter the petitioner No.2 having made an application seeking such appointment immediately after attaining majority never having been considered is certainly apparent from the record.
15. Therefore, the inadvertence, in the counsel for the petitioners having placed reliance on the 1996 Rules would not deprive the petitioners of claiming the benefit of 1985 Scheme, which were the relevant provisions under which he could seek employment. Though it is also the settled position that if a family, which has lost its bread winner has managed to survive over the years, the need for providing such employment on compassionate grounds does not arise. The fact that the petitioners had made an application under the 1985 Scheme in accordance with the said Scheme and the same not having been considered and further : 11 : when there is no indication that such appointments would be made only against an existing vacancy, it is necessary atleast for the respondents to reconsider the case of the petitioners for appointment on compassionate grounds to a sanctioned post under an existing vacancy. The respondents shall do so with expedition and in any event shall communicate to the petitioners as to the availability or the non-availability of such a post within a period of eight weeks, if not earlier. Accordingly, the petition is disposed of.
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JUDGE hnm/