Supreme Court of India
STATE OF JHARKHAND & ORS.versusSHIV KARAMPAL SAHU
- Citation
- 2009 INSC 522
- Decided
- 15 April 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
A compassionate appointment scheme is limited to dependents of government servants; circulars cannot be given retrospective effect or extended to non‑government servant dependents, and must be strictly construed in accordance with Articles 14, 16 and 309 of the Constitution.
Summary
The appellant State of Jharkhand challenged a High Court order that had granted a compassionate appointment to Shiv Karpal Sahu, whose father, a non‑government employee, was killed in a terrorist attack on 19 May 2000. The High Court had applied circulars issued by the Bihar Government (9 Aug 2000) and the Jharkhand Government (7 May 2003) and held that the five‑year limitation in the circulars covered the appellant’s case. The Supreme Court examined whether such circulars could be given retrospective effect and whether they could be extended to dependents of a deceased who was not a government servant. It held that the compassionate‑appointment scheme is confined to dependents of government servants, that the circulars must be strictly construed, cannot be applied retrospectively, and must comply with Articles 14, 16 and 309 of the Constitution. Consequently, the Court set aside the High Court judgment and allowed the appeal.
Issues considered
- Whether a circular granting compassionate appointment to dependents of a deceased government servant can be applied retrospectively to a dependent of a non‑government servant who died before the circular's effective date.
- Whether the circulars can be construed to extend benefits beyond their explicit scope, in violation of Articles 14 and 16 of the Constitution.
- Whether the rule of incorporation by reference applies to the circulars and whether subordinate legislation is presumed to be prospective.
- Whether the scheme of compassionate appointment is compatible with the constitutional provisions on equality and recruitment.
Legislation cited
- Bihar Reorganisation Act, 2000
- Constitution of Indias. Article 14, s. Article 16, s. Article 309
Subjects
compassionate appointmentcircularsretrospective effectsubordinate legislationArticles 14, 16, 309government serviceex‑gratiaterrorist attackconstitutional lawservice law
Judgment
'f-
[2009] 6 S.C.R. 63
STATE OF JHARKHAND & ORS. A
v.
SHIV KARAMPAL SAHU
(Civil Appeal No. 2539 of 2009)
APRIL 15, 2009
B
" [S.B. SINHA ANCI CYRIAC JOSEPH, JJ.]
Administrative Law:
Polley decision for appointment on compassionate c
ground - Circular letter providing for appointment on
compassionate ground in case of death of a government
servant - Held: The benefit cannot be extended to the
dependents of deceased who was not government servant -
Circular dated 21.9.1987 and 9.8.2000 issued by Government D
of Bihar, Circular dated 7.5.2003 issued by Government of
Jharkhand. ..
Subordinate legislation - Construction of - Held:
Ordinarily should not be construed to be retrospective in
operation - Rule of incorporation by reference should not be E
applied unless a clear case is made out.
Service law:
Appointment - Compassionate appointment - Held:
F
Must be made keeping in view the provisions contained in
Articles 14 and 16 of the Constitution of India - Such schemes
cannot be given an expansive meaning as the constitutional
scheme envisages that all persons who are entitled to be
considere9 for appointment would be eligible for being
considered therefor - Constitution of India, 1950 - Articles 14 G
and 16.
The State of Bihar issued a circular dated 9.8.2000
introducing a scheme for grant of compassionate
i-
63 H
64 SUPREME COURT REPORTS [2009] 6 S.C.R
A appointment to the dependants of those killed in terrorist
attacks. Father of the respondent was not a government
servant. He was allegedly killed by extremists on
19.5.2000. Respondent filed a representation for his
appointment on compassionate ground on 5.11.2000
8 which was rejected. However, on 7.5.2003, the
Government of Jharkhand, which came into being in
terms of the provisions of the Bihar Reorganisation Act,
2000 took a policy decision that the matter relating to the
appointment of the dependent of the deceased in the
C terrorist violence should be given effect to in respect of
those persons killed in violence after the date of
formation of the State of Jharkhand, i.e., dated 15.10.2000.
The respondent filed representation which was rejected
on the ground that murder took place on 19.5.2000, i.e.,
before 9.8.2000, therefore, case did not fall within ambit
0
of the circular of Government of Bihar. Respondent filed
writ petition. High Court held that although the
respondent was paid a sum of Rs. 20,000/- as
compensation, but having regard to the circulars issued
by the State of Jharkhand in the matter of appointment
E on compassionate ground in general cases within a
period of five years from the date of death, the same
would also cover the instant case. Hence the appeal.
Allowing the appeal, the Court
F
HELD: 1. The scheme for grant of monetary
compensation to the dependents of the deceased or
injured who were affected in any kind of terrorist/virulent/
communal attack must be considered in terms of the
G stipulations made in the circular letters containing policy
decisions. Appointment on compassionate ground, must
be made keeping in view the provisions contained in
Articles 14 and 16 of the Constitution of India. Such
schemes cannot be given an expansive meaning as the
constitutional scheme envisages that all persons who are
H
.. STATE OF JHARKHAND & ORS. v. SHIV KARAMPAL 65
SAHU
-· entitled to be considered fC'r appointment would be
eligible for being considered therefor. Any policy decision
for appointment on compassionate ground must,
therefore, receive a strict construction. [Para 9] [72-B-E]
A
State of J & K and Ors. v. Sajad Ahmed Mir (2006) 5
8
SCC 766 and Mumtaz Yunus Mulani v. State of Maharashtra
& ors. 2008 (4) SCALE 637, relied on
2. A circular letter providing for appointment on
compassionate ground in case of death of a government
servant cannot be extended in case of the dependents C
of the deceased who was not a government servant. A
public employment must be offered to a person who is
entitled therefor. All recruitments subject to just
exceptions must be made in terms of the rules framed
under the proviso appended to Article 309 of the D
Constitution of India. A circular letter issued by the State
cannot be issued de hors the constitutional scheme of
making offer of public appointment. Moreover, a
benevolent circular cannot be extended to a case which
was not contemplated by the circular itself. [Paras 11 and E
12] [73-C-F]
---- Official Liquidator v. Dayanand & Ors. (2008) 10 SCC 1;
State of Bihar v. Upendra Narayan Singh & Ors. (2009) 4
SCALE 282; Man Singh v. Commissioner, Garhwal Manda/,
F
Pauri & Ors. 2009 (4) SCC 645; Regional Director,
Employees' State Insurance Corporation, Trichur v.
Ramanuja Match Industries AIR 1985 SC 278; Deepal
Girishbhai Soni & ors. v. United India Insurance Co. Ltd.,
Baroda (2004) 5 sec 385, relied on.
G
3.1. In the matter of construction or application of
subordinate legislation, the rule of incorporation by
reference should not be applied unless a clear case is
made out therefor. The circular letter dated 21.9.1987 is
H
66 SUPREME COURT REPORTS (2009) 6 S.C.R.
A an independent one. It operates in its own field. There is
no scope of reading both the circulars together. Even if
they could be read, the general circulars in regard to the
-
appointment on compassionate ground which were again
applicable to the cases of dependents of the deceased
B employees either for consideration of the period during
which such appointments were to be made or otherwise,
could not have been taken Into consideration for grant of
benefit to which he was not otherwise entitled to. [Para
13] [7 4·D·F]
c Management of Indian Bank & Anr. v. Rsmschsndran &
ors. JT 2007 (13) SC 436, relied on
3.2. Ordlnarlly, a subordinate legislation should not be
construed to be retrospective in operation. The circular
D letter dated 7.5.2003 was given a prospective effect. The
father of the respondent died on 19.5.2000. There is
nothing to show that even circular dated 9.8.2000 had
been given retrospective effect. In any view of the matter,
as the State of Jharkhand in the circular letter dated
E 7.5.2003 adopted the earlier circular letters issued by the
State of Bihar only in respect of cases where death had
occurred after 15.10.2000, i.e., the date from which the
State of Jharkhand came into being, the High Court
committed a serious error in giving retrospective effect
F thereto indirectly which it could not do directly. [Para 14]
[75-A-C]
Case Law Reference:
(2006) 5 sec 766 relied on Para 10
.·~
G 2008 (4) SCALE 637 relied on Para 10 ""
(2008) 10 sec 1 relied on Para 11
(2009) 4 SCALE 282 relied on Para 11
H 2009 (4) sec 645 relied on Para 11
STATE OF JHARKHAND & ORS. v. SHIV KARAMPAL 67
1 SAHU ·
AIR 1985 SC 278 relied on Para 12 A
(2004) 5 sec 385 relied on Para 12
JT 2007 (13) SC 436 relied on Para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal No. B
2539 of 2009.
From the Judgment &Order dated 28.10.2005 of the High
Court of Jharkhand at Ranchi in W.P. (S) No. 6713 of 2004.
B.B. Singh for the Appellant. c
Mushtaq Ahmad (NP) for the Respondent.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted. D
2. Interpretation and/or application of two circulars; one
dated 21.9.1987, and the other dated 9.8.2000 relating to grant
of monetory compensation and/or appointment on
compassionate ground falls for consideration in this appeal E
which arises out of a judgment and order dated 28.10.2005
passed by a Division Bench of the High Court of Jharkhand at
Ranchi allowing a writ petition filed by the respondent herein
seeking for appropriate direction to the appellant to provide
appointment on compassionate ground as per the Scheme
framed by the Government. F
3. The State of Bihar keeping in view a large number of
casualties which have been taking place at the hands of
naxalties and/or extremists took a policy decision to grant
monetary compensation to the victims of the incidents of G
terrorist/virulent/communal confrontations/violence relating to the
Election/Joint murders by way of ex-gratia payment. The said
decision was taken keeping in view a judgment of the High
Court of Patna relating to grant of ex-gratia payment to the
dependents of the persons/injured in the terrorist incidents H
68 SUPREME COURT REPORTS [2009] 6 S.C.R.
)I
A which had taken place at Arbal Police Station in the District of
Gaya and further in view of the fact that similar incidents had
taken place within Madanpur Police Station Baghoura and
Dalelchuk villages of District Aurangabad in terms whereof in
case of death, a sum of Rs.20,000/- was to be paid to the
B dependents of each deceased and in case of permanent
disability a sum of Rs.5,000/-, and in case of serious injury
Rs.500/- to Rs.1000/- was to be paid. .,,
4. No ex-gratia payment was to be made in favour of the
persons who were terrorist/virulent or listed criminal. Monetary
c compensation was also proposed in the case of destruction or
damage to the properties subject to the conditions mentioned
in the said circulars. Various other types of grants like the one
for the help of the students of the families and free medical
treatment to the injured persons were also stipulated
D thereunder. Other measures by way of contingent expenses ;(
were also contemplated thereby.
5. Indisputably, father of the respondent was not a
government servant. He was allegedly killed by extremists on
E 19.5.2000.
The State of Bihar adopted another $Cherne for grant of
appointment on compassionate ground to the dependents of
those who have been killed in the terrorist attacks, as would .
appear from a circular dated 9.8.2000, stating:
F
"I am directed to say that the incidents of terrorist/ virulent/
communal confrontations/violence relating to the Election/
joint murders have been occurred in the State and usually
the affected of such attacks are found innocent persons
G and their dependents. Sometimes the whole family is
become like dead. In such circumstances, being the
Government of the welfare State, providing of ex-gratia
and other facilities to the persons and their dependants
who have affected in the terrorist/virulent/communal
H confrontation/violence relating to the Election/joint murders
STATE OF JHARKHAND & ORS. v. SHIV KARAMPAL 69
SAHU [S.B. SINHA, J.]
becomes the duty of the State Government. The State A
Government has always been putting efforts in this
direction. Here, recently only, the Hon'ble High Court has
also given an order for determining a transparent policy in
this regard in a case relating to Dharamshila Kunwar v.
Government of the State and others (CWJC No. 5808/97) B
1. Till date the sufferers of the violence incident happened
due to terrorists/virulent/communal confrontation in the
State and their dependents have been sanctioned ex-
gratia according to the provisions made in the Circular from C
the Department of Home (Special) Affairs bearing No.N
N.Pol. 1701dated21.09.1987 (Annexure-1). According to
the said Circular the dependents of the persons died in the
above said kinds of incidents Rs.20,000/- (Rupees Twenty
thousand only), suffered permanent disability Rs.5,000/-
(Rupees Five thousand only) and to the seriously injured D
persons Rs.500/- to Rs.1,000/- (From Rs. Five hundred to
Rs. One thousand) has been sanctioned as ex-gratia, but
this ex-gratia is not admissible to any of such person who
is a virulent/terrorist or is any kind of listed criminals. In the
said circular, there exists no provision for providing E
appointment to the dependants of the deceased persons
in the government service on the compassionate grounds."
Paragraph 7 of the said policy decision reads as under:
F
"The amount as required for the payment in the aforesaid
heads would be made available by the State Government
c from time to time. The allocation of the funds would be
done under the Budget Head 2235 as previously. For
making available the relief with regard to the terrorist/
virulent/communal confrontation/violence relating to the G
~· elections/massacre and violence incident of any other kind
Nodal Department of Home (Special) would be available,
from where all the guiding principles on the policy matter
would be issued and the proceedings for providing relief
work and government service would be monitored." H
70 SUPREME COURT REPORTS [2009) 6 S.C.R.
A 6. Respondent herein being son of late Duli Sahu filed a
representation for his appointment on compassionate ground
on or about 5.11.2000. The same was rejected by the Deputy .-
Commissioner, Gumla by an order dated 25.1.2003 opining
that there was no provision for employment on compassionate
8 ground for a son of the deceased in the light of prevailing
directives of the Government at that time.
Howe~ver, on or about 7.5.2003, the Government of
Jharkhand, which came into being in terms of the provisions
of the Bihar Reorganisation Act, 2000 took a policy decision
C that the matter relating to the appointment of the dependent of
tho deceased in the terrorist violence should be given effect to
in respect of those persons who had been killed in violence
after the date of formation of the State of Jharkh;o>nd, i.e., dated
15.10.2000.
D
In the light of the aforementioned resolution·, the
representation of the respondent was rejected in the meeting
of the District Compassion Committee held on 5.4.2005,
stating:
E "The murder of father of the applicant late Duli Sahu had
taken place on dated 19.5.2000 i.e. before dated
09.08.2000. It has been mentioned in Para 7 of the Circular
No. 1972 dated 09.08.2000 from the then Chief Secretary,
Government of Bihar, Home (Special) Department, dated
F 09.08.2000 that 'this order would be effective from
immediate effect'
Thus, this case does not fall within the ambit of the circular
of the Government of Bihar and Resolution of the Govt. of
G Jharkhand.
Therefore, Committee took the decision to reject the said
case."
7. Questioning the validity of the said order, the respondent
H filed a writ petition before the High Court. _The said writ petition ·
STATE OF JHARKHAND & ORS. v. SHIV 71
KARAMPAL SAHU [S.B. SINHA, J.]
was taken up with two similar matters pending before the High A
Court. The Division Bench of the High Court by reason of the
impugned judgment opined that although the respondents have
been paid a sum of Rs. 20;000/- as compensation; but having
regard to the circulars issued by the State of Jharkhand in the
matter of appointment on compassionate ground in general B
eases within a period of five years from the date of deattl, the
same would also cover the instant case, stating:
"Such limitation of five years prescribed from the date of
death and thereby Circular No. 6817 dated 25th May,
1989 also covered the dependents of those employees, C
who ~ied prior to 25th May, 1989 but within the limitation
of five years, enabling the dependent to apply. l=ot
example, if a Government employee died in harness in the
year, 1986, the dependent of such deceased employee
having applied within five years of the death, was also 0
covered by Circular dated 25th May, 1989. The said
Circular has been further clarified by the Personnel and
Administrative Reforms Department's Memo No.3/C-2-
2067/90 Ka. 13293 dated 5th October, 1991.
E
In the matter of compassionate appointment, on the death
of a person, killed by terrorist/extremist or during
communal violence or during election violence etc., the
definition of "dependent" and other things of general
compassionate appointment are to be followed; the period F
of limitation will be the same i.e. five years from the date
of death and their cases are also to be considered through
the Compassionate Appointment Committeee."
8. Mr. B.B. Singh, learned counsel appearing on behalf of
the appellants would submit: G
i. The High Court committed a serious error of law
insofar as it failed to take into consideration that the
circular letters issued by State of Jharkhand could
not have been given a retrospective application in H
72 SUPREME COURT REPORTS [2009] 6 S.C.R.
A the matter of grant of appointment on
compassionate ground.
ii. The scheme for appointment on compassionate
ground having been made only for the government
servants, the same could not have been applied in
B
cases of dependents of the deceased who were not
government servants.
9. The scheme for grant of monetary compensation to the
dependents of the deceased or injured who are affected in any
C kind of terrorisUvirulenUcommunal attack must be considered
in terms of the stipulations made in the circular letters containing
policy decisions. Appointment on compassionate ground, it is
trite, must be made keeping in view the provisions contained
in Articles 14 and 16 of the Constitution of India. Such schemes
D cannot be given an expansive meaning as the constitutional
scheme envisages that all persons who are entitled to be
considered for appointment would be eligible for being
considered therefor. Any policy decision for appointment on
compassionate ground must, therefore, receive a strict
E construction.
10. In State of J & Kand Ors. v. Sajad Ahmed Mir[(2006)
5 sec 766], the law was laid down in the following terms:
"11. We may also observe that when the Division Bench
F of the High Court was considering the case of the
applicant holding that he had sought "compassion", the
Bench ought to have considered the larger issue as well
and it is that such an appointment is an exception to the
general rule. Normally, an employment in the Government
G or other public sectors should be open to all eligible
candidates who can come forward to apply and compete
with each other. It is in consonance with Article 14 of the
Constitution. On the basis of competitive merits, an
appointment should be made to public office. This general
H rule should not be departed from except where compelling
I STATE OF JHARKHAND & ORS. v. SHIV KARAMPAl:. 73
SAHU [S.B. SINHA, J.]
circumstances demand, such as, death of the sole A
breadwinner and likelihood of the family suffering because
of the setback. Once it is proved that in spite of the death
of the breadwinner, the family survived and substantial
period is over, there is no necessity to say "goodbye" to
the normal rule of appointment and to show favour to one B
at the cost of the interests of several others ignoring the
mandate of Article 14 of the Constitution.
[See also Mumtaz Yunus Mulani v. State of Maharashtra &
ors. [2008 (4) SCALE 637] .
c
11. A circular letter providing for appointment on
compassionate ground in case of death of a government
servant cannot be extended in case of the dependents of the
deceased who was not a government servant. A public
employment must be offered to a person who is entitled D
therefor. All recruitments subject to just exceptions must be
made in terms of the rules framed under the proviso appended
to Article 309 of the Constitution of India. A circular letter issued
by the State cannot be issued de hors the constitutional
scheme of making offer of public appointment. [See Official E
Liquidator v. Dayanand & ors. [(2008) 10 SCC 1 para 52];
, State of Bihar v. Upendra Narayan Singh & Ors. [(2009) 4
SCALE 282 para 19]; and Man Singh v. Commissioner,
Garhwal Manda/, Pauri & Ors. [2009 (4) SCC 645].
12. Moreover, a benevolent circular, it is well known, cannot F
be extended to a case which was not contemplated by the
.
circular itself.
In Regional Director, Employees' State Insurance
Corporation, Trichur v. Ramanuja Match Industries [AIR 1985 G
SC 278], this Court held:
"... We do not doubt that beneficial legislations should have
liberal construction with a view to implementing the
legislative intent but where such beneficial legislation has H
\
74 SUPREME COURT REPORTS (2009] 6 S.C.R'.
A a scheme of its own there is no warrant for the Court to
· travel beyond the scheme and extend the scope of the
statute on the pretext of extending the statutory benefit to
those who are not covered by the scheme."
B In Deepal Girishbhai Soni & ors. v. United India
Insurance Co. Ltd., Baroda [(2004) 5 SCC 385], it was opined:
y
"53. Although the Act is a beneficial one and, thus,
deserves liberal construction with a view to implementing
the legislative intent but it is trite that where such beneficial
c legislation has a scheme of its own and there is no
vagueness or doubt therein, the court would not travel
beyond the same and extend the scope of the statute on
the pretext of extending the statutory benefit to those who
are not covered thereby."
D
13. Furthermore, in the matter of construction or application
.of subordinate legislation the rule of incorpor'.ltion by reference
should not be applied unless a clear case is made out therefor.
The circular letter dated 21.9.1987 is an independent one. It
E operates in its own field. There is no scope of reading both the
circulars together. Even if they could be read, the general
circulars in regard to the appointment on compassionate
ground which were again applicable to the cases of
dependents of the deceased employees either for the purpose
of consideration of the period during which such appointments
F
were to be made or otherwise could not have been taken into
consideration for the purpose of grant of benefit to which he
was not otherwise entitled to.
In Management of Indian Bank & Anr. v. Ramachandran
G & ors. [JT 2007 (13) SC 436], it has been held:
~
"It is now a trite law that for the purpose of construing a
statute, reference to another statute is not permissible and,
thus, Regulation 21 of the Civil Services Pension Rules
H
contemplates a different situation, the same will have no
STATE OF JHARKHAND & ORS. v. SHIV KARAMPAL 75
SAHU [S.B. SINHA, J.]
application in the instant case. The High Court, therefore, A
committed an error in relying on the said provision."
14. Ordinarily, a subordinate legislation should not be
construed to be retrospective in operation. The circular letter
dated 7.5.2003 was given a prospective effect. The father of 8
the respondent died on 19.5.2000. There is nothing to show
that even circular dated 9.8.2000 had been given retrospective
effect. In any view of the matter, as the State of Jharkhand in
the circular letter dated 7.5.2003 adopted the earlier circular
letters issued by the State of Bihar only in respect of cases C
where death had occurred after 15.10.2000, i.e., the date from
which the State of Jharkhand came into being, the High Court,
in our opinion, committed a serious error in giving retrospective
effect thereto indirectly which it could not do directly.
Reasons assigned by the High Court, for the reasons D
aforementioned, are unacceptable.
15. For the aforementioned reasons, the impugned
judgment cannot be sustained, which is set aside accordingly.
The appeal is allowed. However, in the facts and circumstances E
. _ of the case, there shall be no order as to costs.
D.G. Appeal allowed .
.'
~
1
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