Case BriefsSupreme Court

Supreme Court:  The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

The Court remarked,

“The premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self-same selection process pursuant to advertisement dated 9th September 2001”

Background

The undisputed facts of the instant case were that 53 vacancies for Assistant   Public   Prosecutor   Grade-II were advertised by the Tamil Nadu Public Service Commission in the year 2001.   After undertaking the process for selection, 51 persons, including those who were lower in order of merit to the appellants, were appointed by the Government by order dated 24-09-2002.

Pertinently, the names of the appellants were withheld for want of further verification.   The   Commission on verification granted clearance to both the appellants and intimated the same to the State Government on 03-09-2002 (much before the appointments were made on 24-09-2002).   Despite all the formalities being completed, without any reasonable cause or justification, the State Government had withheld the appointments of the appellants, and finally, both the appellants were appointed on 23-08-2005 and 23-04-2004 respectively.

Meanwhile, vide notification dated 06-08-2003, an amendment was made under the Tamil Nadu Pension Rules, 1978. Pursuant to which the State Government introduced a new Contributory Pension Scheme applicable to the Government employees who were recruited on or after 01-04-2003.

Issue Involved

The grievance of the appellants was that their names were cleared by the Commission much earlier than the date of appointment of the other 51 candidates by the order dated 24-10-2002, but the State Government failed to include their names while appointments of other selected candidates, including those who were lower in order of merit.

Therefore, the appellants contended that their names were withheld for two-three years by the State without any reasonable cause/justification, and the delay in appointments could not be attributable to them in any manner. The appellants argued that because of their later appointments, the Government had denied them the benefits of the Scheme, 1978 which was applicable to the employees appointed on or before 01-04-2003.

Analysis and Findings

The Court observed that when those who are lower in order of merit to the appellants were appointed and no justification had been tendered by the State as to why the names of the appellants were withheld for two-three years, the delay in making appointments could not be held to be attributable to the appellants in any manner.

Hence, the Court found that in the given circumstances, when all other candidates who had participated along with the appellants were appointed on 24-09-2002 including those who were lower in the order of merit, there was no reason for withholding the names of the appellants. The Court held,

“Merely because they were appointed at a later point of time, would not deprive them of claiming to become a member of Tamil Nadu Pension Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003.”

In light of the above, the Court set aside the finding recorded by the High Court. The State was directed to treat the appellants to be a member of the Tamil Nadu Pension Rules, 1978 for all practical purposes and benefits as members of the Rules, 1978 to which the appellants were entitled, including retiral benefits.  [P. Ranjitharaj  v. State of Tamil Nadu,  2022 SCC OnLine SC 508, decided on 25-04-2022]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Clearing the air over the applicability of a new or modified Compassionate Appointment Scheme that comes into force after the death of the employee, the bench of Hemant Gupta and V. Ramasubramanian*, JJ the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor such as the date of consideration of the application of the dependant.

Factual Background

The sister of the respondent died as an unmarried female Government servant on 8.12.2010.

The appointment on compassionate grounds in the State of Karnataka is governed by a set of Rules known as Karnataka Civil Services (Appointment on Compassionate grounds) Rules, 1996, issued in exercise of the powers conferred by Section 3(1) read with Section 8 of the Karnataka State Civil Services Act, 1978.

The Rules as they stood, on the date on which the sister of the respondent died in harness, did not include an unmarried brother, within the definition of the expression “dependant of a deceased Government servant” under Rule 2(1)(a) of the said Rules  vis¬a-vis  a deceased female unmarried Government servant.

It was only by way of way of a draft notification on 20.06.2012 that an unmarried brother of a deceased female unmarried Government servant was included within the definition. The final notification was issued on 11.07.2012.

While the competent authority rejected the respondent’s claim for compassionate appointment, the Karnataka State Administrative Tribunal allowed the application on the ground that the amendment   made to the Rules on 20.06.2012 would apply retrospectively covering the case of the respondent, though his sister died in harness on 8.12.2010. The said order was affirmed by the High Court.

Analysis

The Court analysed various judgments where the applicability of a new or modified Scheme that comes into force after the death of the employee was interpreted. It noticed that in cases where the benefit under the existing Scheme was taken away or substituted with a lesser benefit, the Supreme Court directed the application of the new Scheme. But in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, the Court applied only the Scheme that was in force on the date of death of the employee. This was fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law.

“Though there is a conflict as to whether the Scheme in force on the date of death of the employee would apply or the Scheme in force on the date of consideration of the application of appointment on compassionate grounds would apply, there is certainly no conflict about the underlying concern reflected in the above decisions. Wherever the modified Schemes diluted the existing benefits, this Court applied those benefits, but wherever the modified Scheme granted larger benefits, the old Scheme was made applicable.”

The Court noticed that the conflict of opinion in all the cases revolved around two dates, namely,

  1. date of death of the employee; and
  2. date of consideration of the application of the dependant.

Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority.

“There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor.”

To put things not perspective, the Court explained by way of a hypothetical case where 2 Government servants die in harness on January 01, 2020.

“Let us assume that the dependants of these 2 deceased   Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020.”

Hence, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor.

“A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable.”

It was, hence, held that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor.

Ruling

Since, in the case at hand, the employee had died on 8.12.2010 and the amendment to the Rules was proposed by way of a draft notification on 20.06.2012, the Court noticed that merely because the application for appointment was taken up for consideration after the issue of the amendment, the respondent could not have sought the benefit of the amendment.

[Secretary to Govt. Department of Education (Primary) v. Bheemesh, 2021 SCC OnLine SC 1264, decided on 16.12.2021]


Counsels

For appellants: Advocate V. N. Raghupathy

For respondent: Senior Advocate Jayanth Muthraj


*Judgment by: Justice V. Ramasubramanian

Know Thy Judge | Justice V. Ramasubramanian

Case BriefsHigh Courts

Allahabad High Court: This petition was filed before a Bench of Ajay Bhanot, J., where the application for listing on grant-in-aid list filed by petitioner was rejected.

Petitioner had filed an application for being listed on grant-in-aid list but the same was rejected by the State Government on the ground that proper representation was not filed before the competent authority and also due to the fact that the Scheme of State was not in continuation.

Petitioner contended that the impugned order was unsustainable in law and facts. Petitioner referred a case of State of U.P. v. Pawan Kumar Divedi, 2014 (9) SCC 692 where the Supreme Court had taken note of the subsequent amendments incorporated in the Constitution for ensuring the right of education as a fundamental right up to the age of 14 years. Hearing the contention of petitioner, respondent stated that the authorities of the State shall re-visit the issue.

High Court was of the view that the writ petition should succeed and was allowed. Therefore, impugned order was set aside. Further, State was directed to examine the petitioner’s claim for being taken on a list of aid in view of the case referred above. [Dr B.R. Ambedkar Primary Bal Vikas Sansthan Avam Junior High School v. State of U.P., 2019 SCC OnLine All 102, order dated 23-01-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Aparesh Kumar Singh, J., dismissed a writ petition filed against the order of the respondent authorities whereby petitioner’s claim, for appointment in place of his mother under the Female Voluntary Retirement Scheme, was rejected.

The main issue that arose before the Court was whether the petitioner was entitled to appointment in place of his mother under the Female VRS Scheme.

The Court observed that under the Female VRS Scheme, the female employee under the Coal Company was entitled to take voluntary retirement on attaining a particular age before the normal age of superannuation and nominate one of her dependents for permanent employment in Coal India Limited or its subsidiaries. However, this scheme was declared unconstitutional by a Division Bench of this Court in the case of Sumitra Devi v. Coal India Ltd. Kolkata, L.P.A. No. 340 of 2016. If a scheme is declared unconstitutional then no legally enforceable right could flow from it.

The Court held that since the scheme was declared unconstitutional, no person can claim benefit under such a scheme. The Court held that though the mother of the petitioner had resigned from her duties so that the petitioner could derive the benefits of the scheme since it has been declared unconstitutional, the petitioner cannot be granted any relief. As far as the loss of employment of the petitioner’s mother is concerned, the Court refrained itself from touching upon that aspect since the mother of petitioner was not a party to the instant writ petition. Resultantly, the writ petition was dismissed.[Jitram Manjhi v. Bharat Coking Coal Ltd.,2018 SCC OnLine Jhar 1448, order dated 22-10-2018]