Karnataka High Court
Tukaram S/O Ismail vs Sri. Gopal & Ors on 23 November, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF NOVEMBER 2018
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE P.G.M.PATIL
CCC No.200157/2018 (CIVIL)
BETWEEN:
Tukaram S/o Ismail
Aged about 32 years
Occ: Assistant Cook
Post Matric Hostel for Boys
Aurad, Talukha Aurad
Dist. Bidar - 585 101
...Complainant
(By Sri Sheshadri Jaishankar M., &
Sri Mohd. Vikharuddin, Advocates - Absent)
AND:
1. Gopal IPS
Secretary Social Welfare Dept.,
M.S. Building Bengaluru - 560 001
2. Vikas Kumar
Commissioner of Social Welfare
5th Floor, M.S. Building
Bengaluru - 560 001
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3. H.R. Mahadev
Deputy Commissioner &
Ex Officio Chairman of
Bidar Zilla Karmik
Service Multipurpose
Co-Operative Society
Bidar - 584 101
4. Prem Sagar D
Dist. Social Welfare Officer
Bidar - 585 401
5. M. Chandrashaker
Tahildar Aurad (B)
Tq. Aurad, Dist. Bidar - 585 401
... Respondents/Accused
(By Smt. Archana P. Tiwari, AGA for A1 to A3)
This CCC is filed under Sections 11 & 12 of the
Contempt of Courts Act, 1971 r/w Article 215 of the
Constitution of India, praying to initiate proceedings for
contempt against the accused for their willful, deliberate,
wanton disobedience of order of this Court dated 14.09.2017
passed in Writ Petition No.200725/2016.
This CCC coming on for Orders this day, Aravind
Kumar J., made the following:
ORDER
Learned Additional Government Advocate accepts notice for respondent Nos.1 to 3/accused Nos.1 to 3.
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2. Complainant/petitioner has initiated this contempt proceeding alleging that there is willful disobedience of order dated 14.09.2017 passed in W.P.No.200725/2016 by respondents.
3. Learned Additional Government Advocate has filed reply statement. Same is placed on record.
4. Complainant/petitioner had filed writ petition in W.P.No.200725/2016 contending that his family is a victim of atrocity committed by certain miscreants and he is a qualified person having passed B.A., degree and his claim for regular appointment by third respondent/third accused came to be considered after lapse of thirteen years by providing him employment as an Assistant Cook and the job provided to him is not commensurate to his educational qualification. Hence, seeking appointment to a post commensurate with his educational qualification, representation 4 dated 22.01.2015 came to be submitted by him and on account of non-consideration of said representation, petitioner was before this Court. Learned Single Judge after considering rival contentions directed respondents to consider the representation of the complainant/petitioner dated 22.01.2015 and pass orders keeping in mind the trauma caused to the petitioner's family and further direction came to be issued to the effect that a suitable post commensurate with qualification of the petitioner shall be considered to be provided.
5. Appointment on compassionate grounds is not a matter of right. It is in deviation to the regular appointment. Such appointments are governed by rules framed in that regard and any deviation to such rules appointment cannot be made. Hence, appointing authority cannot be issued with a writ to consider claim contrary to rules governing 5 compassionate appointment. For this proposition, judgment of the Hon'ble Apex Court in the matter of UNION OF INDIA AND OTHERS vs. M.T.LATHEESH reported in (2006) 7 SCC 350 can be looked into. Hon'ble Apex Court in the case of STATE OF RAJASTHAN vs. UMRAO SINGH reported in 1995 (1) LLJ 908 has held that right to appointment on compassionate grounds gets exhausted once appointment is given and there would be no further right to consider for a higher post. In the said case, Hon'ble Apex Court noticed that applicant therein was appointed as Lower Division Clerk on 14.12.1989 on compassionate ground as per Rajasthan Recruitment of Dependents of Government Servants (dying while in service) Rules, 1975 i.e., Rule 5 and the said appointment had been accepted by the applicant and his claim for being appointed as Sub-Inspector was denied. Aggrieved by denial, he had approached the 6 High Court and learned Single Judge had directed consideration of his candidature for appointment to the post of Sub-Inspector, which was under challenge before the Hon'ble Apex Court and after noticing these admitted facts Hon'ble Apex Court has held that once right to seek for appointment on compassionate ground has consummated, any further or second consideration for a higher post on the ground of compassion would not arise.
6. Keeping in mind the above principles laid down by the Hon'ble Apex Court, when facts on hand are examined, it would clearly indicate that deceased- Shivaraj S/o Ismail, brother of the complainant was murdered in the year 2002 and after lapse of 13 years, an application came to be submitted by the complainant i.e., on 22.01.2015 for appointment on compassionate ground. Though State had taken a stand that deceased would not fall within the 7 definition of family as per Rule 2(b) of extant rules, it is stated that on humanitarian grounds job was given to the petitioner by appointing him as Assistant cook and in fact, subsequent to the order passed by the learned Single Judge on 14.09.2017, an endorsement dated 12.01.2018 has been issued by the Deputy Director of Social Welfare Officer Department, Bidar to the complainant/ petitioner. This fact is also sworn to by the third accused/third respondent in the counter affidavit filed which is said to have been served on the complainant, yet contending that there is no substantial compliance, complainant is before this Court. This is not only a frivolous but a mischievous contempt proceeding initiated by the complainant but also filed to have unjust claim settled through these proceedings. Having obtained benefit of appointment on compassionate ground to which he was not entitled for such appointment under extant rules, yet 8 complainant is attempting to pursue his grievance contending that he would be entitled for appointment to higher posts since he is possessing B.A., Degree.
7. In the light of the dicta laid down by the Hon'ble Apex Court in Umrao Singh's case referred to above and the extant rules for compassionate appointments clearly indicating that compassionate appointment would be permissible under Karnataka Civil Services (Appointment on compassionate grounds) Rules, 1996 (as amended from time to time) to such persons as defined thereunder, yet is prosecuting this contempt proceedings. Hence, complainant requires to be mulcted with costs.
8. For the reasons aforestated, we drop the contempt proceeding by imposing costs of Rs.5,000/- payable by the complainant to the respondent-State 9 within a period of eight weeks from the date of receipt of certified copy of this order.
9. Third accused/third respondent-Deputy Commissioner shall issue notice calling upon the complainant/petitioner to pay costs failing which third respondent would be at liberty to recover the same from the complainant in the manner known to law.
Sd/-
JUDGE Sd/-
JUDGE NB* Ct: RRJ