Karnataka High Court
The State Of Karnataka vs Sri. Mainoddin Mulla S/O Late ... on 22 October, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-D:15267-DB
WP No. 100804 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
WRIT PETITION NO. 100804 OF 2021 (S-KAT)
BETWEEN:
1. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE,
BY ITS SECRETARY,
M.S. BUILDING, VIDHANA VEEDHI,
BENGALURU-560001.
2. THE DEPUTY COMMISSIONER,
BELAGAVI DISTRICT,
BELAGAVI-590002.
3. THE ADDITIONAL DEPUTY COMMISSIONER,
BELAGAVI DISTRICT, BELAGAVI-590002.
...PETITIONERS
Digitally signed
by VINAYAKA B
(BY SRI. PRAVEEN K.UPPAR, ADDL. GOVT. ADVOCATE)
V
Location: HIGH
COURT OF
KARNATAKA AND:
DHARWAD
BENCH
Date: 2024.11.05
11:28:45 +0530 1. SRI. MAINODDIN MULLA
S/O. LATE MUKTARAHAMAD
AGE ABOUT 32 YEARS, OCC: NIL,
R/O. NO.184, ATHANI GALLI,
MARIHAL-591103,
BELAGAVI TALUK AND DISTRICT.
2. THE CHEIF EXECUTIVE OFFICER,
ZILLA PANCHAYAT,
BELAGAVI CITY, BELAGAVI-590002.
...RESPONDENTS
(BY SRI. G.M.CHANDRASHEKAR, ADVOCATE FOR R1;
SRI. SHIVARAJ HIREMATH, ADVOCATE FOR R2)
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NC: 2024:KHC-D:15267-DB
WP No. 100804 of 2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT,
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI TO QUASH
THE ORDER DATED 26.02.2020 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BELAGAVI IN APPLICATION
NO.7795/2016 (ANNEXURE-A TO THE WRIT PETITION).
THIS WRIT PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD)
1. This petition is filed by the State under Articles 226 and 227 of the Constitution of India challenging the order dated 26.02.2020 passed by the Karnataka Administrative Tribunal, Belagavi, in Application No.7795/2016 whereby the application filed by the applicant/respondent No.1 herein is allowed and the endorsement issued by the 2nd respondent therein is set aside and directed the 2nd respondent to consider the application of the applicant/respondent No.1 for compassionate appointment within four months from the date of receipt of copy of that order.
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NC: 2024:KHC-D:15267-DB WP No. 100804 of 2021
2. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.
3. The case of the applicant is that his father was working in the Revenue Department as a FDA. While he was in service, he suffered from paralysis and he was not in a position to move and discharge his duty as a FDA. Under the circumstances, he applied for leave on medical grounds from March 2009. Leave has been sanctioned by respondent No.4 by communication dated 03.06.2009. Subsequently, 3rd respondent has issued an order on 03.09.2010 sanctioning leave on medical grounds on different dates for a period of 43 days. On 19.08.2011, as per Annexure -A7, he applied for voluntary retirement under Rule 285 of the Karnataka Civil Services Rules (hereinafter referred to as 'the KCS Rules', for short). Pursuant to Annexure-A7, his request has been accepted by order dated 28.10.2011 vide Annexure-A10 and permission has been granted to retire from service from 31.10.2011. On 17.01.2012, the applicant has submitted a representation vide Annexure-A3 requesting for compassionate appointment. The applicant's father died -4- NC: 2024:KHC-D:15267-DB WP No. 100804 of 2021 on 11.04.2014. Thereafter, one more representation has been submitted on 30.10.2015. The Deputy Commissioner, Belagavi, by order dated 22.12.2015 has rejected the request of the applicant. Being aggrieved by the same, the applicant has filed an application before the Karnataka Administrative Tribunal in Application No.7795/2016. The Tribunal by order dated 26.02.2020 has allowed the application and set aside the endorsement dated 22.12.2015 directing the 2nd respondent to reconsider the case of the applicant within a period of four months from the date of receipt of copy of that order. Being aggrieved by the same, the State is before this Court.
4. Learned Additional Government Advocate appearing for the State has contended that the applicant's father submitted an application for voluntary retirement under Section 285 of KCS Rules as per Annexure-A7 and since he had satisfied all the conditions under Rules 285 of KCS Rules, he was permitted to retire from service. It is not the case of the applicant's father that he wants voluntary retirement on -5- NC: 2024:KHC-D:15267-DB WP No. 100804 of 2021 health grounds. It is very clear from Annexure-A7 to A9 that he has been permitted under Rule 285 of KCS Rules. If an employee is allowed to retire from service under Rule 285 of KCS Rules, his legal representatives are not entitled for compassionate appointment. On that basis, the Deputy Commissioner has rightly issued an endorsement and rejected the application of the applicant. Secondly, he contended that if the Government servant applied for voluntary retirement on health grounds, he will be permitted to retire under Rule 273 of KCS Rules. Since the father of the applicant has been permitted to retire under Rule 285 of KCS Rules, his legal representatives are not entitled for compassionate appointment. In support of his contentions, he has relied on the Division Bench judgment of this Court in Writ Petition No.103316/2023 disposed of on 14.06.2023. He further contended that at the time of retirement, the applicant's father was at the verge of retirement and he had left with service of only three months. Under the circumstances, his legal representatives cannot take the benefit seeking for appointment on compassionate ground. -6-
NC: 2024:KHC-D:15267-DB WP No. 100804 of 2021 In support of his contention he has relied on the judgment of the Hon'ble Apex Court in the case of V. Sivamurthy v. State of Andhra Pradesh and others1.
5. Sri. G.M. Chandrashekar appearing for the applicant/respondent No.1 supported the order of the KAT and further submitted that the applicant's father was suffering from paralysis, he was not in a position to move and discharge his duty as a FDA. Under that circumstance, the applicant's father has applied for voluntary retirement on medical grounds. Considering the same, the Authority has permitted him to retire from services. Therefore, the applicant, being the legal representative, is entitled for appointment on compassionate ground. Considering the same, the Tribunal has rightly allowed the application. Hence, he sought for dismissal of the writ petition.
6. Heard the learned AGA.
7. The applicant's father was working in the Revenue Department. While he was working as a FDA, he suffered 1 (2008) 13 Supreme Court Cases 730 -7- NC: 2024:KHC-D:15267-DB WP No. 100804 of 2021 paralysis stroke. He was not in a position to move. Hence, he applied leave for voluntary retirement scheme on family problem and medical grounds. At his requests, he has been permitted to take voluntary retirement under Rule 285 (1) of KCS Rules. By order dated 28.10.2011 vide Annexure-A9, he is relieved from service on 31.10.2011 vide Annexure- A10. As per the service records, his date of birth is 01.06.1953. He has filed an application seeking voluntary retirement on health grounds on 19.08.2011. As on that date, he was at the verge of retirement. It is very clear from his application vide Annexure-A7 that he is seeking voluntary retirement under Rule 285(2) of KCS Rules. He was also permitted to retire under the said Rule. Thereafter, the applicant has filed an application as per Annexure-A13 dated 17.01.2012 seeking appointment on compassionate ground on the ground that his father had retired from service on medical grounds. As on the date of voluntary retirement of the petitioner's father, the compassionate appointment rules, which prevailed as on that date, Rule 3A Explanation states as follows:
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NC: 2024:KHC-D:15267-DB WP No. 100804 of 2021 "3A. Appointment of dependents of Government servant retired on medical grounds.- xxxxx xxxx Explanation.- For the purpose of these rules, (1) "Government servant retired on medical grounds" means a Government servant whon the ground of bodily or mental infirmity is permanently incapacitated while on duty for public service and retired on medical grounds as per the provisions of the Karnataka Civil Services Rules on or after the 1st day of January, 2010, as certified by the Medical Board constituted by the Department of Health and Family Welfare and district and taluk level."
8. It is very clear from the above Rule that, a Government servant who is retired from service on medical grounds, after certified by the Medical Board constituted by the Department of Health and Family Welfare at District and Taluk level, his dependents are eligible for appointment on compassionate grounds.
9. In the case on hand, the applicant's father was not permitted to retire on medical grounds. On his request, he has been permitted to retire from the service by the Government Order dated 28.10.2011 vide Annexure-A9 under Section 285(1) and (2) of KCS Rules. Therefore, the applicant is not entitled for appointment on compassionate -9- NC: 2024:KHC-D:15267-DB WP No. 100804 of 2021 grounds under Rule 1996 and also the applicant's father was at the verge of retirement. The Apex Court in the case of V. Sivamurthy (supra) held that, compassionate appointment is not permissible where an employee seek voluntary retirement scheme on medical grounds on verge of superannuation'. For better understanding para 30 of the aforesaid judgment reads as follows:
30. There are of course safeguards to be taken to ensure the scheme is not misused. One is to ensure that mere medical unfitness to continue in a post is not treated as medical invalidation for the purposes of compassionate appointment. A government servant should totally cease to be employable and become a burden on his family, to warrant compassionate appointment to a member of his family. Another is barring compassionate appointments to dependants of an employee who seeks voluntary retirement on medical grounds on the verge of superannuation. This Court observed in Ram Kesh Yadav as follows: (SCC p.
535, para 9) "9. ...But for such a condition, there will be a tendency on the part of employees nearing the age of superannuation to take advantage of the scheme and seek voluntary retirement at the fag end of their service on medical grounds and thereby virtually creating employment by 'succession'. It is not permissible for the court to relax the said condition relating to age of the employee. Whenever a cut-off date or age is prescribed, it is bound to cause hardship in marginal cases, but that is no ground to hold the provision as directory and not mandatory."
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NC: 2024:KHC-D:15267-DB WP No. 100804 of 2021 Therefore, petitioner No.2 has rightly rejected the request of the applicant/respondent No.1 by order dated 22.12.2015 vide Annexure-A-28.
10. The Tribunal without considering this aspect of the matter and without considering the rule applicable to the applicant, has erred in allowing the application filed by the applicant before the Tribunal.
11. Accordingly, the writ petition is allowed. The impugned order dated 26.02.2020 passed by the Karnataka Administrative Tribunal, Belagavi, in Application No.7795/2016 is set aide. The application filed by the applicant in application No.7795/2016 is rejected.
Sd/-
(H.T.NARENDRA PRASAD) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE kmv Ct:vh