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2009 (4) TMI 1010 - SUPREME COURTInterpretation 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.
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