IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1626 of 2009()
1. THE CHIEF GENERAL MANAGER,
... Petitioner
2. THE ASSISTANT GENEREAL MANGER,
3. THE BRANCH MANGER, STATE BANK OF INDIA,
4. THE CHIEF MANAGER ( P & HRD),
Vs
1. REV.P.V.JACOB,
... Respondent
For Petitioner :SRI.GEORGE THOMAS (MEVADA)
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :03/08/2009
O R D E R
K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ.
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W.A. No.1626 of 2009
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Dated this, the 3rd day of August, 2009
JUDGMENT
Balakrishnan Nair, J.
The respondents in W.P.(C) No.11502 of 2008 are
the appellants. The respondent herein was the writ petitioner.
He is the father of Ms.Racheal, who was an Assistant working
under the appellants. She died at the age of 35 years after
rendering 15 years service on 19.4.2005. She was unmarried
and the respondent’s family was dependant on her income for
their livelihood. The brother of the deceased, the respondent’s
son, applied for appointment under the dying-in-harness
scheme, which was then in existence on 21.5.2005. But, the
said application was rejected by Ext.P2 communication dated
24.6.2005, on the ground that, the service of Ms.Racheal was
not blemishless. Later, the appellants introduced Ext.P4
scheme to help the dependants of employees, who died in
harness. As per the new scheme, instead of granting
compassionate appointment to the dependants, an ex-gratia
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lumpsum payment was introduced. The disqualification of the
dependants of employees who suffered punishment was
removed and therefore, dependants of those, whose service
not treated as blemishless, were also included under the new
Scheme as beneficiaries. Therefore, the respondent
submitted an application to get the benefits payable to the
dependants of deceased employee on 23.1.2006 under the
new Scheme. The said application was rejected by Ext.P8
order dated 28.1.2008, on the ground that, since the
application for appointment under the dying in harness
scheme has already been rejected, a fresh application is not
maintainable as per the new Scheme. Challenging Ext.P8
order, the writ petition was filed. The learned Single Judge
after hearing both sides, gave a liberal interpretation to the
provisions of Ext.P4 and directed the consideration of the
respondent for ex-gratia payment on account of the
pre-mature death of his daughter, while in service. The
respondents in the writ petition, feeling aggrieved, have
preferred this writ appeal.
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2. The learned counsel for the appellants,
Mr.George Thomas Mevada, submitted that as per the new
Scheme, a dependant whose application has already been
rejected under the old scheme is ineligible to apply under the
new Scheme. Therefore, the direction issued by the learned
Single Judge is unjustified.
3 Under the old Scheme, the sin of the deceased
employee will visit his dependants. But, that provision has
been done away with under the new Scheme. Further, the
new Scheme provided that if an application filed under the old
Scheme is not disposed of, then the concerned applicant will
be eligible to get the benefit of the new Scheme. So, the
removal of disqualification of the dependants of deceased
employee with a blemished service has been removed with
retrospective effect in relation to persons whose applications
were pending. If, in their case, retrospectivity can be given,
we find no reason why the provision cannot be given
retrospective effect in relation to the applicants like the
respondent herein. If it is held that the provisions of the new
scheme will not apply to the case of the applicant in case the
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application under the old scheme has already been disposed
of, the provisions under Ext.P4 scheme will be suffering from
the vice of under-inclusiveness. Normally, a provision should
be interpreted to make it constitutionally valid. If that be so,
the only way to save Ext.P4 provision from the vice of
under-inclusiveness in the classification of dependants, is to
interpret to have retrospective operation and therefore, the
applications of persons like the respondent are also liable to
be considered under the new Scheme, Ext.P4. So, we are of
the view that regarding the interpretation of Ext.P4, the
learned Single Judge has taken a plausible view. So, we
sustain the direction issued by the learned Single Judge.
Further, as per the old scheme, the dependants in
this case were ineligible to apply. So, the respondent’s son’s
application itself was not maintainable. So, its submission or
rejection is of no consequence. So, the respondent’s
application can be treated as the first application. For this
reason also, the direction of the learned Judge can be
sustained.
W.A. No.1626 of 2009:
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In the result, the Writ Appeal is dismissed.
Sd/-
K. Balakrishnan Nair,
Judge.
Sd/-
C.T. Ravikumar,
Judge.
DK.
(True copy)