IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 W.A.No. 1626 of 2009 -------- --------------------- AGAINST THE JUDGEMENT IN WPC.11502/2008 Dated 19/03/2009 .................... APPELLANT(S):/RESPONDENTS 1 TO 4. ------------------------ 1. THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA, LOCAL HEAD OFFICE, THAMPANOOR THIRUVANANTHAPURAM. 2. THE ASSISTANT GENEREAL MANAGER, STATE BANK OF INDIA, REGION - I, ZONAL OFFICE, THIRUVANANTHAPURAM. 3. THE BRANCH MANAGER, STATE BANK OF INDIA, PERUVANTHANAM BRANCH, MUNDAKKAYAM, KOTTAYAM. 4. THE CHIEF MANAGER ( P & HRD), STATE BANK OF INDIA, LOCAL HEAD OFFICE, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): PETITIONER. -------------------------- REV.P.V.JACOB, PEZHAMATTATHIL ROSE VILLA, KARIKKATTOOR CENTER P.O., MANIMALA, KOTTAYAM. BY ADV. SRI. SIBY MATHEW. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No.1626 of 2009 ------------------------------ 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 W.A. No.1626 of 2009: - 2 - 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. W.A. No.1626 of 2009: - 3 - 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 W.A. No.1626 of 2009: - 4 - 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: - 5 - In the result, the Writ Appeal is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)