Karnataka High Court: M Nagaprasanna, J., allowed the petition and quashed the impugned endorsement.
The petitioners in the instant writ petition challenge the endorsement dated 23-12-2020 which declined to grant an appointment on compassionate grounds to the 1st petitioner and have sought for consequential direction by issuance of a writ in the nature of mandamus directing the respondents to consider the case of the 1st petitioner for an appointment on compassionate grounds qua his qualification.
Counsel for the petitioners Mr Ashwini O. submitted that the appointment on compassionate grounds was denied on the basis of a Rule that came about on 26-09-2017 which was long after the death of the breadwinner of the family and the application being given by the petitioners for appointment on compassionate grounds.
Counsel for the respondents Mrs M C Nagashree submitted that there is no right to the applicants to seek an appointment on compassionate grounds as it can be only in terms of the policy or the Rules as the case would be. Since there was no vacancy existing in the post of Second Division Assistant in any of the Aided Institutions, the appointment of the 1st petitioner was declined to be considered for the present.
The Court observed that consideration of applications for appointment on compassionate grounds in the State is regulated under the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. In terms of the afore-extracted Rules appointment shall be confined to any post in Group-C or Group-D depending on the qualification specified for the post and appointment once made under these Rules shall be final.
The Court relied on judgment Canara Bank v. M .Mahesh Kumar, (2015) 7 SCC 412 wherein it was observed:
- ….it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.
“….That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.”
The Court further relied on Lalitha Laxman Kundargi v. Managing Director, 1999 SCC OnLine Kar 329 wherein it was observed:
“…..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.”
The Court observed that in the light of the law declared so far by Courts, the application given by the petitioners on 11-09-2015 had to be considered qua the Rules obtaining at that point in time and not the one that was subsequently notified and now made use of to deny appointment to the 1st petitioner. Therefore, on both the counts, one being the change in the Rules and non-existence of vacancies, on which the impugned endorsement is issued is untenable and is consequently rendered unsustainable. Compassionate Appointment Rules also depict grant of appointment to the applicant on compassionate grounds in Group-C or Group-D owing to the qualification possessed.
The Court further observed that the delay of 6 years is not attributable to the petitioners as the application for compassionate appointment was given within two months after the date of death of the father. Keeping the application pending for years or months will defeat the very object of framing the Rule for grant of appointment on compassionate grounds. Therefore, the need for immediate consideration of such representations/applications for appointment on compassionate grounds is paramount.
The Court observed that if giving of an application within one year is held to be mandatory and binding on the applicant in terms of Rule 5, so would be sub-Rule (2) of Rule 6 upon the State and its instrumentalities. Though the Rule employs the words ‘as far as possible’ it is preceded by the word “shall”. Looking at the mandatory duty cast upon the applicant to file an application within one year from the date of death of the bread winner, the same duty is required to be mandatorily followed by the State in terms of sub-rule (2) of Rule-6 in the wake of the object of framing the rule and the duty that enjoins such object. Any unreasoned or unjustifiable delay on the part of the Authority competent to consider would make such Authority personally responsible to pay damages to such applicant by way of wages that the applicant would be entitled to, if an appointment had been considered and granted.
The Court thus held “Mandamus is issued to the respondents to reconsider the case of the 1st petitioner for appointment on compassionate grounds in terms of sub-rule (4) of Rule 4 of the Rules”[Hruthik N. v. Deputy Director of Public Instructions, 2021 SCC OnLine Kar 12910, decided on 12-07-2021]
Arunima Bose, Editorial Assistant has reported this brief.
