Karnataka High Court
Pooja D/O. Umesh Kulkarni Alias Krutika vs The Principal on 9 August, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 103645 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF AUGUST 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 103645 OF 2021 (S-RES)
BETWEEN:
POOJA D/O. UMESH KULKARNI @ KRUTIKA
W/O. ANAND KANAKANNAVAR,
AGE. 27 YEARS, OCC. HOUSEHOLD WORK,
C/O. UMESH S. KULKARNI,
R/O. JAWAHAR NAVODAYA VIDYALAYA,
KYARKOPPA ROAD, DHARWAD-580007.
... PETITIONER
(BY SRI. R.H. ANGADI, ADVOCATE)
AND:
THE PRINCIPAL,
JAWAHAR NAVODAY VIDYALAYA,
KYARKOPPA ROAD, DHARWAD-580007.
... RESPONDENT
VISHAL (BY SRI. M.B. KANAVI, CGSC)
NINGAPPA
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
PATTIHAL OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE
Digitally signed by
NATURE OF MANDAMUS DIRECTING THE RESPONDENT TO
VISHAL NINGAPPA CONSIDER THE REPRESENTATION VIDE ANNEXURE-D, D1 AND D2,
PATTIHAL DATED 15/11/2014, 24/11/2014, 6/12/2014, REPRESENTATION
Date: 2023.08.18 SUBMITTED BY PETITIONER AND CONSEQUENTLY DIRECT THE
13:35:42 +0530
RESPONDENT TO PROVIDE COMPENSATORY JOB TO PETITIONER.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 103645 of 2021
ORDER
The petitioner is before this Court seeking the following prayer:
i) Kindly allow the petition;
ii) Kindly direct or issue writ in the nature of mandamus directing the respondent to consider the representation vide Annexure-D, D1 and D2, dated 15/11/2014, 24/11/2014, 6/12/2014, representation submitted by petitioner and consequently direct the respondent to provide compensatory job to petitioner.
iii) Issue any other appropriate Writ, Order or Direction as deemed fit to grant any relief in the facts and circumstances of this case, in the ends of justice.
2. Heard the learned counsel appearing for the petitioner.
3. The learned counsel Sri. R.H. Angadi appearing for the petitioner would submit that the issue in the lis stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Writ Petition No.101460/2021 disposed on 25.06.2021. The Co-ordinate bench has held as follows:
-3-NC: 2023:KHC-D:8624 WP No. 103645 of 2021 "3. This court in the case of The Principal Secretary V/s. Smt. Bhagyashree in W.P. No.3340/2020 c/w.
W.P.1002/2021 decided on 28.05.2021 has already decided the issue in question.
"8. The undisputed facts makes it very clear that the respondent is the daughter of late Sri Hanumantha Rao Kulkarni who expired while in service on 19.3.2010. She is a divorced daughter and her application was rejected for grant of compassionate appointment as the CCA Rules of 1996 does not include a married daughter for grant of compassionate appointment.
9. A Co-ordinate Bench of this Court in the case of The State of Karnataka and others vs. Smt.C.N.Apporva Shree and another, in WP No.5409/2021 (S-KSAT), decided on 22.3.2021, while deciding a similar issue in respect of grant of compassionate appointment to a married daughter, has dismissed a similar petition filed by the State of Karnataka. Paragraphs 5 to 7 of the aforesaid judgment readas under;
"5. Having heard learned High Court Government Pleader appearing for petitioners, we are of the considered view that this petition is liable to be dismissed at the threshold even without notice being issued for the reasons indicated hereinbelow:
At the outset, it requires to be noticed that Apex Court in the matter of C.B.Muthamma v. Union of India reported in AIR 1979 SC 1868 has held that if the Executive as the surrogate of Parliament, makes rules in the teeth of part III of the Constitution and -4- NC: 2023:KHC-D:8624 WP No. 103645 of 2021 diametrically opposite to mandate of Articles 14 and 16, it would definitely be allergy to gender parity. It has been further held:
"6. At the first blush this rule is in defiance of Art. 16. If a married man has a right, a married woman, other thing being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman's thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Arts. 14 and 16 should have been tragically ignored vis-à-vis half of India's humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filed by women, the inference of die-hard allergy to gender parity isinevitable."
6. In fact, the learned Single Judge of this Court in the case of R.Jayamma vs Karnataka Electricity Board reported in ILR 1992 KAR 3416 has held refusing compassionate appointment only on the ground that an applicant is married would be violative of Constitutional Guarantees. It is further held:
"8. Article 14 of our Constitution assures to all citizens equality before the law and legal protection of the law. Article 15 expressly prohibits discrimination on the ground of sex. Article 16 guarantees equality of opportunity in matters of public employment.
9. Though women have equal rights in law, tradition and social customs hinder Indian women in enjoying equal rights with men. With the change in family structure and life styles and the social norms, nothing is so detrimental to society as a blind adherence to outworn forms and obsolete socialcustoms which survive because of -5- NC: 2023:KHC-D:8624 WP No. 103645 of 2021 inertia.
10. This discrimination, in refusingcompassionate appointment on the only ground that the woman is married is voilative of Constitutional Guarantees. It is out of keeping with the trend of times when men and women complete on equal terms in all areas. The Electricity Board would do well to revise its guidelines and remove such anachronisms."
7. Following these two decisions, tribunal in Application No.9763/2015 disposed of on 27.10.2017 (Annexure-A8) had extended similar relief to applicant therein and has directed the State to consider the claim of applicant for appointment on compassionate ground, if she is otherwise eligible. It is these judgments which have been followed by the tribunal while passing the impugned order. Though Sri Kiran Kumar would vehemently contend that Rules having not been challenged by the applicant or same having not been quashed, petitioners are left with no other option except to examine the claim of an applicant for being appointed on compassionate ground within the frame work of Rules, is an argument which requires to be brushed aside for the simple reason that learned Single Judge in the case of BHUVANESHWARI V. PURANI v. STATE OF KARNATAKA reported in 2021(1) AKR 444 [AIROnline 2020 Kar 2303] has quashed the said Rule 3 of the Rules which has been pressed into service by learned High Court Government Pleader in the present petition. In other words, said Rule is no more available in the statute book. In fact, the Government seems to have also been alive to this factual situation and to set right the anomaly ordiscrimination that was meted out to a married daughter has taken proactive step by brining in amendment to Rule 3 which is said to be in pipeline for being implemented. In this factual scenario, the contention of learned High Court Government Pleader would not stand the test of law. Hence, we reject this petition by affirming the order of the tribunal."
10. There appears to be no justification in taking a different view than the view already taken by the Co-ordinate Bench of this Court in similar circumstances.
11. The issue of grant of compassionate appointment in respect of married daughters was considered by various High Courts all over the Country and in the case of Bhawna -6- NC: 2023:KHC-D:8624 WP No. 103645 of 2021 Chourasia vs. State of M.P, reported in 2019 (2) MPLJ 707, the High Court of Madhya Pradesh has held a married daughter to be entitled for grant of compassionate appointment even though the Rules for grant of compassionate appointment was not providing a provision for appointment to married daughters.
12. The Chattisgarh High Court in the case of Sarojini Bhoi vs. State of Chattisgarh and others, in WP(S) No.296/2014, has again held that the policy of the Government prohibiting consideration of married daughters from grant of compassionate appointment as violative of Article 14 of the Constitution.
13. The Calcutta High Court in the case of State of W.B. and others vs. Purnima Das and others, reported in 2018 Lab 1C 1522, has again held a married daughter to be eligible for grant of compassionate appointment.
14. Thus, various High Courts have held the policy of grant of compassionate appointment to the exclusion of married daughters as unconstitutional (see: Smt Usha Singh vs. State of W.B., 2003(2) WBLR (Cal) 94; Udham Singh Nagar District Cooperative Bank Ltd., and Another vs. Anjula Singh and others, AIR 2019 Utr 69; R.Jayamma vs. Karnataka Electricity Board, ILR 1992 Kar 3416; R.Govindammal vs. The Principal Secretary, Social Welfare and Nutritious Meal Programme Department and others, 2015 (3) LW 756; Krishnaveni vs. Kadamparai Electricity Generation Block, Coimbator District, 2013(8) MLJ 684; Sou.Swara Sachin Kulkarni vs. Superintending Engineer, Pune Irrigation Project Circle, 2013 SCC OnLine Bom 1549; Debashri Chakraborty vs. State of Tripura and others, 2020 (1) GLT 198; Vimla Shrivastava and others vs. State of UP and others, MANU/UP/2275/2015; Manjula vs. State of Karnataka, 2005 (104) FLR 271; Budhan Choudhry vs. State of Bihar, (1995) 1SCR 1045 and Dr (Mrs.) Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai, (1987) 2 SCC 278).
15. The Full Bench of High Court of Madhya Pradesh in the case of Meenakshi Dubey vs. M.P.Poorva Kshetra Vidyut Vitran Co.Ltd., and others, in W.A.No.756/2019, decided on 2.3.2020, in paragraphs 18 to 23 has held as under;
-7-NC: 2023:KHC-D:8624 WP No. 103645 of 2021 "18. The matter may be viewed from another angle.
Human rights and fundamental freedom have been reiterated by the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Vienna Convention on the Elimination of all forms of Discrimination Against Women (for short 'CEDAW') was ratified by the UNO on 18-12-1979. The Government of India who was an active participant to CEDAW ratified it on 19-6-1993 and acceded to CEDAW on 8-8-1993 with reservation on Articles 5(e), 16(1), 16(2) and 29 thereof. The Preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes it more difficult for the full development of potentialities of women in the service of their countries and of humanity. Article 1 defines discrimination against women to mean - "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose on impairing or nullifying the recognized enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field". Article 2(b) makes it obligatory for the State parties while condemning discrimination against women in all its forms, to pursue, by appropriate means, without delay, elimination of discrimination against women by adopting "appropriate legislative and other measures including sanctions where appropriate, prohibiting all discriminations against women" to take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Clause (C) enjoins to ensure legal protection of the rights of women on -8- NC: 2023:KHC-D:8624 WP No. 103645 of 2021 equal basis with men through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women. Article 3 enjoins State parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 13 states that - "the State parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women". Parliament has enacted the Protection of Human Rights Act, 1993. Section 2(d) defines human rights to mean "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India". Thereby the principles embodied in CEDAW and the concomitant Right to Development became integral parts of the Indian Constitution and the Human Rights Act and became enforceable. Section 12 of Protection of Human Rights Act charges the Commission with duty for proper implementation as well as prevention of violation of the human rights and fundamental freedoms. Article 5(a) of CEDAW on which the Government of India expressed reservationdoes not stand in its way and in fact Article 2(f) denudes its effect and enjoins to implement Article 2(f) read with its obligation undertaken under Articles 3, 14 and 15 of the Convention vis-à-vis Articles 1, 3, 6 and 8 of the Declaration of Right to Development. Though the directive principles and fundamental rights provide the matrix for development of human personality and elimination of discrimination, these conventions add urgency and need for immediate implementation. It is, therefore, imperative for the State to eliminate obstacles, prohibit all gender- based discriminations as mandated by Articles 14 and 15 of the Constitution of India. By operation of Article 2(f) and other related articles of CEDAW, the State should by appropriate measures modify -9- NC: 2023:KHC-D:8624 WP No. 103645 of 2021 law/policy and abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.
19. In a recent judgment reported in 2020 SCC OnLine SC 200 (Secretary, Ministry of Defence vs. Babita Puniya and others), the Apex Court opined that -
"67. The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of nondiscrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1)."
This recent judgment in Babita Puniya(Supra) is a very important step to ensure "Gender Justice". In view of catena of judgments referred hereinabove, it can be safely concluded that Clause 2.2 to the extent it deprives married woman from right of consideration for compassionate appointment violates equality clause and cannot be countenanced. By introducing Clause 2.4, the Government partially recognised the right of consideration of married daughter but such consideration was confined to such daughters who have no brothers. Clause 2.2, as noticed, gives option to the living spouse of deceased government servant to nominate son or unmarried daughter. There is no condition imposed while considering a son relating to marital status. Adjective/condition of "unmarried" is affixed for the daughter. This condition is without there being any justification and; therefore, arbitrary and discriminatory in nature.
21. Looking from any angle, it is crystal clear that clause 2.2 which deprives the married daughter from right of consideration cannot sustain judicial scrutiny. Thus, for different reasons, we are inclined to hold that Indore Bench has rightly interfered with Clause
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NC: 2023:KHC-D:8624 WP No. 103645 of 2021 2.2 of the said policy in the case of Smt. Meenakshi(Supra).
22. In nutshell, broadly, we are in agreement with the conclusion drawn by Indore Bench in Smt. Meenakshi(Supra) and deem it proper to answer the reference as under:
"Clause 2.2 of the policy dated 29.09.2014 is violative of Articles 14, 15, 16 and 39(a) of the Constitution of India to the extent it deprivesthe married daughter from right of consideration for compassionate appointment. We find no reason to declare Clause 2.4 of the policy as ultra vires. To this extent, we overrule the judgment of Indore Bench in the case of Meenakshi(Supra)"
23. The issue is answered accordingly."
Meaning thereby, the Full Bench in the aforesaid case has also held that the married daughters are also entitled for grant of compassionate appointment and the clause debarring them from being considered is ultra vires.
16. The most important aspect of the case is that Rule 3(2)(1) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, has been amended vide a notification published in the official gazette to that effect on 2.2.2021.
17. Rule 3 has been amended and now Rule 3 includes a married daughter also. The amendment of Rule 3 is reproduced as under;
"3. Amendment of Rule 3 - In Rule 3 of the said Rules,-
(i) in sub-rule (2), -
(1) for clause (i), the following shall be substituted, namely:-
"(i) in the case of the deceased
male marriedGovernment Servant, -
(a) the widow, and
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(b) son or daughter who is chosen by the widow of the deceased Government Servant, if the widow is not eligible or for any valid reason she is not willing to accept the appointment".
who were dependent on him and were living with him."
18. The amendment has now included "daughter" and there is no such classification which was earlier in existence ie.., married/unmarried daughter.
19. The learned counsel for the respondent has argued before this Court that in the light of the amendment as daughter has been substituted in respect of unmarried daughter, the statute is having a retrospective effect and otherwise also, the statute was declared as ultra vires by the Division Bench of this Court in the case of Bhuvaneshwari V. Purani vs. State of Karnataka, reported in 2021(1) AKR 444 (AIR Online 2020 Kar 2303). He has placed reliance upon a judgment delivered in the case of Shamrao V. Parulekar and others vs. District Magistrate, Thana, Bombay and others, reported in AIR 1952 SC 324 in respect of interpretation of the amendment. Paragraph 7 of the aforesaid judgment reads as under;
"7. The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England: see Craies on Statute Law, 5th edition, page 207; it is the law in Amenca: see Crawford on Statutory Construction, page 110; and it is the law which the Privy Council applied to India in KESHORAM PODDAR V. NUNDO LAL MALLICK, 54 Ind App 152 (PC) atp.155. Bearing this in mind it will be
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NC: 2023:KHC-D:8624 WP No. 103645 of 2021 seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments. Therefore, the moment the Act of 1952 was passed and section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by section 2, that is to say, the Act of 1950 now due to expire on the 1st of October, 1952."
20. This Court has carefully gone through theaforesaid judgment and the word 'unmarried daughter' has been substituted by the word "daughter". Otherwise also, the Rule which was in existence prior to amendment has been quashed in the case of Bhuvaneshwari (supra) and therefore, in the considered opinion of this Court the respondent is certainly entitled to be considered for grant of compassionate appointment and this Court does not find any reason to interfere with the order passed by the Tribunal.
21. Resultantly, the writ petition is dismissed. The State Government is directed to consider the case of the respondent on merits and to pass necessary orders within a period of 60 days from the date of receipt of certified copy of this order and the claim of the respondent shall not be rejected on the ground of delay and laches.
22. In the other connected matter ie., WP No.1002/2021, the Tribunal has dismissed the application filed by the petitioner by taking shelter of Rule 3 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996.
23. In the considered opinion of this Court, in the light of the order passed in WP.No.3340/2020 as this Court has held the married daughter to be entitled to be considered for grant of compassionate appointment, the present petition is allowed. The order dated 3.1.2018 passed in Application No.14/2018 by the Karnataka State Administrative Tribunal, Bangalore, is set aside. The State Government is directed to consider the case of the petitioner on merits and to pass necessary orders within a period of 60 days from the date of receipt of certified copy of
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NC: 2023:KHC-D:8624 WP No. 103645 of 2021 this order and the claim of the petitioner shall not be rejected on the ground of delay and laches."
4. In light of aforesaid judgment, the issue is no longer res- intigra. Judgment delivered in the case above shall be applicable mutatis and mutandis in the present case also.
5. In view of above, reason for rejecting the petitioner's application cannot be sustained. Hence, Annexure-C is quashed. Writ Petition is allowed.
6. Respondent Nos. 2 and 3 are directed to consider the petitioner's case for appointment on compassionate ground within a period of three months in accordance with law from the date of receipt of certified copy of this order."
4. Sri. M. B. Kanavi, Central Government Standing Counsel would not dispute the position in law. Therefore, the petition deserves to succeed.
5. For the aforesaid reasons, the following ORDER i. The writ petition is allowed.
ii. Mandamus issues to the respondent to consider the case of the petitioner in the light of the order passed by the Co-ordinate Bench bearing in mind the observation made therein within a
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Sd/-
JUDGE kmv Ct:Bck