Karnataka High Court
Smt Sayeda Farheen Banao vs The State Of Karnataka on 14 August, 2013
Bench: D.V.Shylendra Kumar, B.S.Indrakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF AUGUST, 2013
PRESENT
THE HON'BLE MR. JUSTICE D. V. SHYLENDRA KUMAR
AND
THE HON'BLE MRS. JUSTICE B.S. INDRAKALA
WRIT PETITION NO.17004/2010 (S-KAT)
BETWEEN:
Smt. Sayeda Farheen Banao,
D/o. Syed Nasim Udden,
Aged about 25 years,
Occ: Second Division Assistant,
Government High School,
Stone Building,
Mandya,
Residing at LIG, CD-TB House,
Kesare II Stage,
Mysore. ...Petitioner
(By Sri. M.R. Shailendra, Advocate)
AND:
1. The State of Karnataka,
Rep. by its Principal,
Secretary to Government,
Education Department,
(Secondary Education),
M.S. Building,
Dr. Ambedkar Veedhi,
Bangalore-560 001.
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2. The Commissioner of Public Instructions,
Nrupathunga Road,
Bangalore-560 001.
3. The Divisional Secretary,
& Ex-Officio Joint Director,
Of Public Instructions,
Mysore Division,
Mysore.
4. The Deputy Director of
Public Instructions,
Mandya District
Mandya.
5. The Principal,
Government Girls Pre-University
College, Stone Building,
Mandya. ...Respondents
(By Smt. S. Susheela, AGA for R-1 to 4, R-5
served)
This Writ Petition is filed Under Articles 226 and 227
of the Constitution of India praying to call for records
pertaining to the orders passed by the Karnataka
Administrative Tribunal dated 03.12.2009 vide Annexure-E
in review application No.70/2009 and the order of the
Karnataka Administrative Tribunal dated 21.04.2009 in
application no.4901/2007 vide Annexure-C and peruse the
same.
This Writ Petition coming on for Pronouncement of
Orders this day, Indrakala J., made the following:
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ORDER
The writ petitioner has sought to quash the order dated 3.12.2009 passed on Review Application No.70/2009 as well as the order dated 21.4.2009 passed in Application No.4901/2007 on the file of the Karnataka Administrative Tribunal (KAT) and to issue directions to the respondent to reinstate her.
2. Thus, the above writ petition is directed against the order of termination issued on the basis of the enquiry report submitted on the enquiry held, in pursuance of the order passed in Application No.4901/2007 on the file of the KAT vide order dated 21.4.2009.
3. It is the case of the petitioner that on 24.05.1994 her mother Smt.Shakila Jabeena Ara Begum died while in service and on her death, a request was made by the husband of Shakila Jabeena Ara Begum i.e., the father of the petitioner, to provide him an appointment on 4 compassionate ground which was rejected on 12.6.1997 on the ground that he was not entitled for the same and only the children of the deceased could seek such appointment on compassionate ground.
4. Further, it is contended that the petitioner was born on 12.5.1982 and as such, as on the date of death of her mother i.e., on 24.5.1994, she was still a minor and she attained the age of majority on 12.5.2000.
5. It is further the case of the petitioner that on attaining the age of majority within one year from thereon i.e., on 25.9.2000, she filed an application seeking appointment on compassionate grounds on account of the death of her mother while in service. The said application was forwarded to the Divisional Commissioner on 6.2.2001; subsequently, a communication was also sent to the 3rd respondent by the Divisional Commissioner, Mysore to appoint her and accordingly, 3rd respondent - The 5 Divisional Secretary and Ex-Officio Joint Director of Public Instructions, Mysore Division, Mysore issued an order of appointment on 20.9.2001 appointing the petitioner as Second Division Assistant in the said Department.
6. Further, it is also contended by the petitioner that she completed the period of probation successfully on 27.9.2004. She also passed all the required departmental examinations and continued to work as such.
7. Further it is contended that as the matter stood thus, on 2.6.2005 a showcause notice was issued to her asking her to showcause as to why her services should not be terminated as her appointment was not in conformity with the Government Order dated 31.3.1999, which was suitably replied by her vide her reply dated 10.6.2003. Further, without considering the reply furnished by her in proper perspective, an order of termination came to be passed on 15.6.2005 which was challenged in Application 6 No.4923/2005 on the file of the Karnataka Administrative Tribunal. The tribunal by its order dated 20.10.2005 set- aside the order of termination with a liberty to the respondents to follow Rule 11 of Karnataka State Civil (CCA)Rules, 1959 (Hereinafter referred to as the Rules for short) for issuing an order of termination. It is further contended that subsequently, she was reinstated to service on 4.1.2006; however, within one month another notice was issued to her on 14.2.2006 initiating enquiry as contemplated under Rule 11 of the Rules; statement of imputation and the charges were issued alleging that the petitioner had not made the application for appointment on compassionate ground within one year from the commencement of the Rules on 1.4.1999 and as on 31.3.2000, she was still a minor and was not eligible for appointment; further, that the petitioner's application was contrary to Rule 3 of the Conduct Rules; while seeking certain documents she replied to the charge on 8.3.2006 denying the same etc. Further, it is contended that 7 ultimately, after holding enquiry, the enquiring officer submitted a report holding that petitioner was only 17 years 10 months as on 31.3.2000 and as such she was not entitled for appointment and the petitioner has given wrong information but the disciplinary authority without properly considering the facts, evidence and documents on record and on verifying the undisputed facts and the effect of the Rules, passed an order of removal on 28.12.2006 and she was relieved from her services on 2.1.2007.
8. Thus, it is seen that in pursuance of the observations made by the KAT while disposing off O.A. No.4923/2005 the respondents were at liberty to invoke the provisions of Rule 11 of the Rules, they acted upon the same and deemed it fit to terminate the petitioner. The charges leveled against the petitioner for initiating enquiry reads as hereunder:
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"You, Kum. Syeeda Farheena Banu, Second Division Assistant, Government Pre- University College, Stone Building, Mandya was born on 12.05.1982 and has attained the age of 18 years on 11.05.2000. Your mother had expired on 24.05.1994 while under Government service. As per Rule 5 of Karnataka Civil Service (Appointment on the basis of compassionate grounds) Rules, 1996 published in the Government Notification No.DPAR 100 NCA. 95 dated 12.09.1996 and as per the Karnataka Civil Services (Appointment on the basis of compassionate grounds) (Amendment) Rules, 1998 published in Government Notification No. DPAR 11 NCA 97 dated 31.03.1999, the dependants of the deceased Government official shall submit application for appointment on compassionate grounds within a period of one year of the death of the said Government official. In case of minors, application shall be submitted within a period of one year from the date of death of the Government official and shall have attained the age of 18 years at the time of submitting the application.
As per Government Circular No. DPAR 14 NeAaNe 99, if the dependants of the Government official who died after 20.10.1989 had not submitted application for appointment on compassionate grounds before 20.10.1990 or before the date of commencement Karnataka Civil Services (appointment on compassionate grounds) (amendment) Rules, 1998 i.e. 01.04.1999, such dependants of the deceased 9 Government official may submit application within one year from the date of commencement of such amendment rules i.e. before 31.03.2000 and such application shall be construed to have been submitted within stipulated time under Rule 5 and the same shall be examined subject to other provisions of the said Rules of 1996. As per all these rules, only if you have attained the age of 18 years before 31.03.2000 and had submitted application before 31.03.2000, you shall be eligible for appointment on compassionate grounds. But, you have attained the age of 18 years on 11.05.2000 and are not eligible for appointment on compassionate grounds, inspite of the same, in contrary to the rules, inspite of not be eligible for appointment of compassionate grounds, you have submitted application unlawfully and have secured appointment on compassionate grounds.
In the undertaking dated 21.06.2000 submitted together with the application for such appointment on compassionate grounds, you have submitted an undertaking that, action may be initiated in accordance with law for termination of employment, if the same is secured by furnishing false information. Your such ineligible appointment was terminated as per office order No.D3(C5) (A6) 4629 AAaNe 03/01-02 dated 15.06.2005. This order is set aside by the Karnataka Administrative Tribunal in Application No.4623/2005 and provided to initiate disciplinary action as per 10 Karnataka Government Civil Service (CCA) Rules.
Your act of securing appointment on compassionate grounds inspite of not being eligible for the same amounts to misconduct on the part of the Government official and also contrary to Rule 3 of Karnataka Civil Services (Conduct) Rules, 1966 and is punishable as per Karnataka Civil Service (CCA) Rules, 1957".
9. For the sake of convenience, proviso to Rule 5 of the Rules is excerpted hereunder:
Provided that in the case of a minor he must have attained the age of eighteen years within one year from the date of the death of the Government servant and he must make an application within one year thereafter:
Provided further that nothing in the first proviso shall apply to an application made by the dependent of a deceased Government servant, after attaining majority and which was pending for consideration on the date of commencement of the Karnataka Civil Services (Appointment on Compassionate Grounds) (Amendment) Rules, 1998.11
10. Admittedly, the mother of the appellant died on 24.5.1994; appellant attained the age of majority on 11.5.2000; she applied for the post on 25.9.2000. Thus, it is seen that as on the date of coming into force of the amended Rules i.e.,1.4.1999, the appellant had not attained the age of majority and no application for consideration was pending disposal.
11. Learned counsel appearing for the appellant contended that Rule 9 of the said Rules is applicable to the facts of the case as the appellant attained the age of majority during the transitional period of effecting amendment to the proviso. In this regard, it is seen that as no application for appointment was filed by the appellant prior to 20.10.1994 nor before the commencement of the Rules, the said Rule 9 is not applicable to the facts and circumstances of the case. 12
12. Thus, the impugned orders passed by the Karnataka Administrative Tribunal, Bangalore dated 3.12.2009 on Review Petition No.70/2009 and in Application No.4901/2007 dated 21.4.2009 are sustainable and the above writ petition is dismissed.
SD/-
JUDGE SD/-
JUDGE Brn/-