2009 (4) TMI 1010 - SC - Indian Laws

Interpretation and/or application of two circulars; one dated 21.9.1987 and the other dated 9.8.2000 - Scheme to Grant monetary compensation and/or Grant of appointment on compassionate ground to the dependents of those who have been killed in the terrorist attacks - Application seeking for appropriate directions - Prospective or Retrospective effect - father of the respondent was not a government servant. He was allegedly killed by extremists - No ex-gratia payment made in favour of the persons who were terrorist/virulent or listed criminal - 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 that the matter relating to the appointment of the dependent of the 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 Jharkhand i.e. dated 15.10.2000. 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 - HELD THAT - 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 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 Liquidator vs. Dayanand ors. 2008 (11) TMI 679 - SUPREME COURT and State of Bihar vs. Upendra Narayan Singh Ors. 2009 (3) TMI 1064 - SUPREME COURT . Moreover a benevolent circular it is well known cannot be extended to a case which was not contemplated by the circular itself. Furthermore 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 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 employees either for the purpose of consideration of the period during which such appointments 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. 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 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 where death had occurred after 15.10.2000 i.e. the date from which the State of Jharkhad 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 aforementioned are unacceptable. Therefore the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. However in the facts and circumstances of the case there shall be no order as to costs.

Issues Involved:
1. Interpretation and/or application of two circulars dated 21.9.1987 and 9.8.2000.
2. Grant of monetary compensation and/or appointment on compassionate grounds.
3. Retrospective application of circulars.
4. Eligibility criteria for compassionate appointments.
5. Adherence to constitutional provisions in public employment.

Issue-wise Detailed Analysis:

1. Interpretation and/or Application of Two Circulars:
The case revolves around the interpretation and application of two circulars dated 21.9.1987 and 9.8.2000. The first circular pertains to monetary compensation for victims of terrorist/virulent/communal confrontations, while the second circular addresses the appointment on compassionate grounds for dependents of those killed in such incidents.

2. Grant of Monetary Compensation and/or Appointment on Compassionate Grounds:
The State of Bihar had a policy to grant monetary compensation to victims of terrorist/virulent/communal confrontations, providing ex-gratia payments to the dependents of deceased persons and those with permanent disabilities or serious injuries. The circular dated 9.8.2000 extended this policy to include appointments on compassionate grounds for dependents of those killed in such incidents. However, the respondent's father, who was not a government servant, was killed by extremists on 19.5.2000, and the respondent sought compassionate appointment based on these circulars.

3. Retrospective Application of Circulars:
The respondent's request for compassionate appointment was rejected by the Deputy Commissioner, Gumla, and later by the District Compassion Committee, on the grounds that the circular dated 9.8.2000 did not have retrospective effect. The High Court opined that the circulars issued by the State of Jharkhand should cover cases within five years from the date of death, including the respondent's case. However, the Supreme Court held that the circulars could not be applied retrospectively, emphasizing that the circular dated 7.5.2003 was prospective and applicable only to deaths occurring after the formation of the State of Jharkhand on 15.10.2000.

4. Eligibility Criteria for Compassionate Appointments:
The Supreme Court highlighted that the scheme for compassionate appointments was primarily for government servants. The Court reiterated that public employment must adhere to Articles 14 and 16 of the Constitution of India, ensuring equal opportunity for all eligible candidates. The Court emphasized that compassionate appointments are exceptions to the general rule and must be strictly construed, only applicable in compelling circumstances such as the death of the sole breadwinner.

5. Adherence to Constitutional Provisions in Public Employment:
The Supreme Court underscored that any policy decision for compassionate appointments must comply with the constitutional scheme and rules framed under Article 309 of the Constitution. The Court cited precedents to emphasize that a benevolent circular cannot be extended beyond its intended scope. The Court concluded that the High Court erred in applying the circulars retrospectively and extending benefits to cases not covered by the original circulars.

Conclusion:
The Supreme Court set aside the High Court's judgment, ruling that the circulars could not be applied retrospectively and that the scheme for compassionate appointments was intended only for government servants. The appeal was allowed, and the respondent's request for compassionate appointment was denied. There was no order as to costs.

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