Karnataka High Court
Smt. Sundaramma W/O Late R. Munikrishna ... vs The Registrar General, High Court Of ... on 30 June, 2006
Equivalent citations: ILR2006KAR3657, 2007(4)KARLJ110, 2006 (5) AIR KAR R 127
Bench: B. Padmaraj, S. Abdul Nazeer
ORDER
6 RULE 17-AMENDMENT OF PLEADINGS UNDER-Leave to amend-Refusal of-HELD, The amendment of pleadings will be refused where the amendment sought for is a futile amendment and is not necessary for the purpose of determining the real questions in controversy between the parties.
Writ Petition is dismissed.
ORDER
1. Petitioner No. 1 is the 1st wife of a certain R. Munikrishna and petitioner No. 2 is their daughter. The said R. Munikrishna while in service as SDA in the office of the High Court of Karnataka, has died on 13.4.1999. He had taken a 2nd wife by name Smt. Ashwathamma and through her, he has two children. After taking the 2ndwife, the said R. Munikrishna had deserted the petitioners and hence the petitioner No. 1 had filed a petition seeking maintenance from him in C.Misc. No. 240/90, both for herself and for her daughter, the 2ndpetitioner. In that petition, they were awarded maintenance at the rate of Rs. 300/- and Rs. 150/- respectively. After the death of the said R. Munikrishna, certain dispute arose between the petitioners and the above said Smt. Ashwathamma regarding the properties left behind the deceased, which was stated to have been decided or adjudicated in P & SC No. 27/03. Aggrieved thereby, the above said Smt. Ashwathamma and her two children had preferred an appeal in MFA No. 3982/2003 which was referred to the Lok Adalat. The same has ended in a compromise between the parties as per the award dated 6.1.2005. As per the award of the Lok Adalath, it is stated that the 2ndpetitioner was entitled to secure the appointment on compassionate grounds. While this was so, it is stated that the petitioner No. 1 had made an application for being appointed on compassionate grounds on 5.5.1999 and since there was no response to the said application from the office of the High Court, the 2ndpetitioner after she has attained majority on 16.8.2000 made another application seeking appointment to her on compassionate grounds on 4.11.2000. Since there was also no response to this application by the office of the High Court, the 1st petitioner claims to have sent another application on 21.8.2001 seeking appointment on compassionate grounds for her daughter, the petitioner No. 2. Thereafter, it is stated that the petitioners have received the communication dated 9.12.2005 as per Annexure-D indicating therein that the 2nd petitioner is not eligible for appointment on compassionate grounds in terms of Rule-5 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. The 2nd petitioner claims to have been aggrieved by the said endorsement-Annexure-D. That is to say, it is the 2nd petitioner who is aggrieved by such endorsement and not the petitioner No. 1. But however they have both filed this writ petition under Articles 226 and 227 of the Constitution seeking for issue of a writ of certiorari to quash that part of the impugned endorsement at Annexure-D which declines appointment on compassionate grounds to the 2nd petitioner and consequently to direct the office of the High Court to appoint the 2nd petitioner on compassionate grounds.
2. When the matter came up for preliminary hearing on 23.6.2006, it was heard for some time and the learned Counsel for the petitioners sought for adjournment to seek further instructions from the petitioners and accordingly, the matter was adjourned and it was directed to be listed on 26.6.2006. Then when the matter came up for preliminary hearing on 26.6.2006, the petitioners have come out with an interim application under Order-6 Rule-17 of CPC seeking leave to amend the writ petition so as to challenge the constitutional validity of the amended proviso to Rule-5 of the Rules as violative of Article 14 of the Constitution of India and consequently to strike down the same.
3. We have heard the arguments of the learned Counsel for the petitioners both on the writ petition as well as on the interim application filed by the petitioners at a considerable length and carefully perused the relevant case papers in the light of the relevant Rules and the judgments of the single Bench of this Court relied upon by the learned Counsel for the petitioners. He has relied upon the following decisions:
1. Unreported Judgment rendered by the single Bench of this Court in the case of Ravikumar v. State of Karnataka and Anr. In W.P. No. 32699/2002 on 3.4.2003.
2. ILR 1999 KAR.2648 (Uday Krishna Naik v. State of Karnataka)
4. It is now well settled that appointment on compassionate ground cannot be claimed as a matter of right. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Die-in-harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. The Hon'ble Supreme Court in the case of Life Insurance Corporation of India v. Asha Ramchandra Ambekar reported in 1994 AIR SCW 1947 has pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in the case of Umesh Kumar Nagpal v. State of Haryana and Ors. in 1994 SCW 2305 that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment, but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his or her father is no ground, unless the scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major, he/she can be appointed without any time consciousness or limit. This is the view taken by the Hon'ble Supreme Court in the case of Smt. Sushma Gosain and Ors. v. Union of India and Ors. in and reiterated in Phoolwati (Smt.) v. Union of India and Ors. in 1991 AIR SCW 73 and Union of India and Ors. v. Bhagwan Singh in (1995)6 SCC 476. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provisions enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of an exception to the general provisions, it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. To alleviate the distress of the family, such appointments are permissible on compassionate grounds strictly in accordance with the Rules provided for such appointments. None of these considerations can operate when the application is made after undue delay and not in conformity with the Rules. There is no scope for introducing a concept of condonation of delay in the matter of compassionate appointments.
5. Rule-5 of the Rules as it stands today reads as follows:
5. Application for appointment: Every dependent of a deceased Government servant, seeking appointment under these rules shall make an application within one year from the date of death of the Government servant, in such form, as may be notified by the Government, from time to time, to the Head of the Department under whom the deceased Government was working:
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.
6. The Hon'ble Supreme Court while dealing with the very same rule in the case of Commissioner of Public Instruction v. K.R. Vishwanath reported in 2005 AIR SCW 4102 has held as under.
The respondent was hardly two months old at the time when his father expired. He attained majority on 20.10.1995. He submitted an application on 2.12.1996 seeking appointment on compassionate grounds. The said application on 11/13.11.1997 was rejected on the ground that the application had not been filed within time i.e. within one year of attaining majority. Another application was filed on 22.4.1998 which was not entertained. Respondent filed another application on 29.11.1999 i.e. after 1999 amendment came into force. The same was rejected on 9.6.2000 by stating that no application was pending on the date when Amendment Rules came into force and, therefore, the Rules as amended had no application to his case. The High Court, however, directed the Government to consider respondent for appointment on compassionate ground.
Held, the High Court's view is indefensible. A bare reading of the second proviso shows that unless the application is pending at the time of commencement of the Amendment Rules, the same can have no application. If the second proviso has no application, then the question of any subsequent application being considered does not arise. The provision is clear and unambiguous. That being so, there was no scope for introducing a concept of condonation of delay as done by the Tribunal and the High Court. If such view is accepted it would mean that a belated application will be deemed to have been done within time. That would be in effect introducing a deeming provision by interpretative process which is not permissible. {W.P. No. 19625 of 2002, D/- 3-6-2002 (Kant), Reversed}
7. It needs to be noted here that it is only the petitioner No. 2 who is aggrieved and not the 1st petitioner. The 2nd petitioner who claims to be the daughter of the deceased employee and stated to have attained the age of majority on 16.8.2000 had made an application on 4.11.2000. It has to be pointed out that the deceased employee had died on 13.4.1999. Admittedly, the application made by the 2nd petitioner was beyond one year and hence she was not eligible to seek appointment on compassionate grounds in accordance with Rule-5 of the Rules. That apart, there was already an application filed by the 1st petitioner who is the widow of the deceased employee seeking such appointment as a dependant of the deceased in terms of Rule-3 on 5.5.1999. Therefore in the face of such application filed earlier by the 1st petitioner-widow, the second application filed independently by the 2nd petitioner after the expiry of the period prescribed under Rule-5 was clearly not maintainable in law. Subsequently there appears to be another application made on 21.8.2001 by the 1st petitioner seeking appointment not to her, but to the 2nd petitioner. Admittedly, such application filed by the 1st petitioner to provide appointment to the 2nd petitioner was not maintainable on two grounds. Firstly because the appointment on compassionate grounds cannot be claimed as a matter of right as is clear from Rule-3 of the Rules which prescribes that appointment on compassionate grounds under these Rules shall not be claimed as a matter of right and shall not be given as a matter of course and hence the 1st petitioner could not have sought for appointment to her daughter either as of right or as a matter of course. That is to say, the 1st petitioner cannot direct this office to provide appointment to the 2nd petitioner on compassionate grounds. In terms of Rule-3 of the Rules, the son and an unmarried daughter of the deceased employee would not be eligible to seek appointment on compassionate grounds in the presence of the widow unless of course the widow is either not eligible or not willing to accept the appointment for any valid reasons. The very fact that the 1st petitioner herein had made an application on 5.5.1999 seeking appointment on compassionate ground would manifest that she was neither not eligible nor unwilling to accept the appointment for any valid reasons. Secondly, the said application filed by the 1st petitioner seeking to appoint the 2nd petitioner on compassionate grounds on 21.8.2001 was beyond the period prescribed under Rule-5 of the Rules.
8. Learned Counsel for the petitioners submitted that the Rules are mere directory and even if it is conceded that there was some delay, no technical view should be taken as the object is to provide sustenance to distressed member of a deceased employee. He also submitted that the amended proviso to Rule-5 is violative of Article 14 of the Constitution and hence it is liable to be struck down.
9. The Hon'ble Supreme Court in the decision referred to above (2005 AIR SCW 4102) has observed in paragraph-8 as under:
8. A bare reading of the second proviso makes the position that unless the application is pending at the time of commencement of the Amendment Rules, the same can have no application. If the second proviso has no application, then the question of any subsequent application being considered does not arise. The provision is clear and unambiguous. That being so, there was no scope for introducing a concept of condonation of delay as has been done by the Tribunal and the High Court. If the view is accepted, it would mean that a belated application will be deemed to have been done within time. That would be in effect introducing a deeming provision by interpretative process which is not permissible.
10. According to the petitioners, the amended proviso providing that in the case of a minor, he must make the application within one year from the date of death of the Government servant and that he must have attained the age of 18 years on the date of making of the application, is arbitrary, unreasonable and violative of Article 14 of the Constitution and hence the restriction imposed as per the amended Rules is liable to be struck down as violative of the rights guaranteed to the petitioners under Article 14 of the constitution. While considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind certain well established principles which have been evolved by the Courts as rules of guidance in discharge of its constitutional function of judicial review. The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be arbitrary, artificial or evasive, but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature. Moreover the petitioners must have a legal right to claim appointment on compassionate grounds. Now it is well settled that appointment on compassionate grounds under these Rules shall not be claimed as a matter of right. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. When the petitioners do not have any legal right to claim the appointment on compassionate grounds, Article 14 of the Constitution has no application at all. In other words, when the appointment on compassionate grounds cannot be claimed as a matter of right, the same cannot be tested on the touchstone of Articles 14 or 16 of the Constitution. Further as we have already indicated there is a presumption of the constitutional validity of a statutory provision. In case any party assails the validity of any provision on the ground that it is violative of Article 14 of the Constitution, it is for that party to make the necessary averments and adduce material to show discrimination violative of Article 14. We find that no material on this factual aspect is produced by the petitioners and it is only on the basis of certain assumptions, the constitutional validity of the relevant Rule has been challenged as being violative of Article 14. That being so, it is in our opinion extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of certain facts by raising a presumption. A pronouncement about the constitutional validity of a statutory provision affects not only the parties before the Court, but all other parties who may be affected by the impugned provision. There would, therefore, be inherent risk in striking down an impugned provision without having the complete factual data and full material before the Court. We find that except the averment that the impugned provision is violative of the rights guaranteed to the petitioners under Article 14, no factual foundation as such has been made as to how the impugned provisions are violative of Article 14 of the Constitution. We would therefore hold that there is no material on record as might justify the inference that a differential hostile treatment has been meted out to the petitioners. Apart from this, when the petitioners do not have any legitimate right to claim appointment on compassionate grounds, there could be no violation of Article 14 of the Constitution. The very basis of striking down the impugned provisions on the ground of being violative of Article 14 would thus disappear. Apart from this, we are of the opinion that classification by treating the fresh cases as belonging to one category and pending cases as belonging to another category is reasonable and not per se offensive to Article 14 of the Constitution. It is well established that Article 14 forbids class legislation but does not forbid classification. Permissible classification founded on an intelligible differentia have a rational relation to the object sought to be achieved by the statute in question. In permissible classification mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstances arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment. Article 14 of the Constitution permits reasonable classification for the purpose of legislation and prohibits class legislation. A legislation intended to apply or benefit a "well defined class" is not open to challenge by reference to Article 14 of the Constitution on the ground that the same does not extend a similar benefit or protection to other persons. Permissible classification must satisfy the twin tests, namely, the classification must be founded on an intelligible differentia, which distinguishes persons or things grouped together from others left out of the class, and such differentia must have a rational relation with the object sought to be achieved by the legislation. It is difficult to expect the Legislature carving out a classification which may be scientifically perfect or logically complete or which may satisfy the expectations of all concerned, still the Court would respect the classification dictated by the wisdom of Legislature and shall interfere only on being convinced that the classification would result in pronounced inequality or palpable arbitrariness on the touchstone of Article 14 of the Constitution. As we have already stated, the purpose of providing appointment on compassionate ground is to mitigate the hardship due to the death of the bread-earner in the family and such appointments should, therefore, be provided immediately to redeem the family in distress and the same cannot be made without any time consciousness or limit. Hence the challenge to the impugned proviso based on Article 14 of the Constitution is without any merit as the same is keeping in view the object of compassionate appointment. The impugned proviso to Rule-5 is having rational nexus to the object sought to be achieved by the Rules. In this context, a reference may also be made to a decision of the Hon'ble Supreme Court in the case of Mylapore Club v. State of Tamil Nadu reported in 2005 AIR SCW 6170 wherein it is observed in paragraphs-8 and 8A as under:
8. The Full Bench of the High Court has referred to the various decisions of this Court wherein exemptions granted in respect of institutions from the purview of an Act were upheld by repelling challenges based on Articles 14 and 19 of the Constitution. Moreover, it is seen that this aspect of the case is also to a great extent covered by the decision of this Court in S.M. Transports (P) Ltd. v. Sankaraswamigal Mutt concerning the very Act. Whereas that was a case of an amendment, exempting lands belonging to the Corporation of Madras, municipalities and other local authorities from the operation of the Act, now it is a case of exempting lands of religious and charitable institutions from within the purview of Act. We see no difference in principle while considering the validity of such an exemption provision whether it be relating to the tenancies created by local authorities or tenancies created by religious institutions or religious charities. The only available argument in that situation that was urged was that there was discrimination in the matter of exempting religious institutions. But the Court held that there was a reasonable classification and there was no discrimination by preferring one religious institution to another or one religion to another and in that context, there was no merit in the challenge based on Article 14 of the Constitution. In the light of the reasoning adopted by this Court in various decisions referred to in the decision of the Full Bench of the Madras High Court, we find that there is no reason to differ from the views so taken by the High Court. The power to exempt buildings belonging to religious institutions or religious charities is available to the legislature, based on the fact situation arising out of the extension of the Act. Earlier views on such tenancies and the extension of the legislation, cannot be held to be a ground for holding the present withdrawal arbitrary or unconstitutional. Nor can a tenant raise a contention that he had a vested right to the protection of a statute the benefit of which had been extended to him in between and in the absence of any such vested right, it is also not open to him to raise a contention that the Act should not be made inapplicable to tenancies created by certain religious institutions or religious charities.
8A. In S. Kandaswamy Chettiar v. State of Tamil Nadu and Anr. (1985) 1 SCC 296, this Court upheld the power given to the Government by the concerned statute to exempt buildings belonging to public trusts from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act. Here, the legislature itself has exempted the tenancies created by religious or charitable institutions. The grant of exemption to such tenancies has to be held to be having rational nexus to the objects sought to be achieved by the Act. The ratio of the decision in S.M. Transports (P) Ltd. v. Sankaraswamigal Mutt covers that position also.
11. Keeping the above principles in view and having regard to the fact that the petitioners have no legitimate right to claim appointment on compassionate grounds, we find no violation of Article 14 as sought to be alleged by the petitioners. In this connection, a reference may also be made to a decision of the Hon'ble Supreme Court in the case of Rao Shiv Bahadur Singh v. State of Vindhya Pradesh . We would, therefore, hold that the amended proviso to Rule-5 of the Rules is constitutionally valid and not violative of Article 14. It has stood the test of time all these years. Moreover when the petitioners have no right to claim appointment on compassionate grounds, the question of the same being violative of Article 14 of the Constitution will not arise. It may be stated even at the cost of repetition that to appoint one of the dependants of the deceased employee who died in service is to mitigate the hardship due to the death of the bread-earner of the family and sudden misery faced by the members of the family of such employee who had served the State Government. Such benefit which is being extended to the dependants is an exception to the right guaranteed to a citizen under Articles 14 and 16 of the Constitution and as such there should be a proper check and balance. Of late, it appears that the benefit which is so extended is being claimed as a right of inheritance, as has what happened in this case, irrespective of the services rendered and the claim made. It needs no mention that in view of Rule-3, the claim of the person concerned for appointment on compassionate ground is based on the ground that he was a dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution. But the Hon'ble Supreme Court has upheld this claim as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. It has to be pointed out that leave to amend under Order-6 Rule-17 will be refused where the amendment sought for is a futile amendment and is not necessary for the purpose of determining the real questions in controversy between the parties. As the object of the provisions contained under Order-6 Rule-17 of CPC is to enable the real questions in dispute to be raised on the pleadings, leave to amend should be refused to the petitioners where the proposed amendment would not help them in substantiating their claim. In other words, leave to amend should be refused where the amendment is not necessary for the purpose of determining the real questions in controversy between the parties, as where it is merely technical, or useless and of no substance. Thus the amendment sought for by the petitioners to the writ petition being futile and of no substance, it is not capable of being granted.
12. When the case of the petitioner No. 2 is considered in the light of the above legal principles, the inevitable conclusion is that she is not entitled or not eligible for appointment on compassionate ground. Even after the 2nd petitioner attained majority, the application was not made within the time stipulated under Rule-5 and the impugned proviso to Rule-5 fixing a reasonable time within which an application is to be made is in consonance with or is having nexus with the object sought to be achieved by the Rules and is not violative of Article 14 of the Constitution, moreso when the 2nd petitioner has absolutely no legitimate right to claim appointment on compassionate grounds. The respondent was therefore justified in issuing the impugned communication as per Annexure-D. We find no good ground to quash the impugned communication of the respondent as per Annexure-D.
13. Therefore having given our anxious consideration to the entire matter in issue, we are of the clear view that there is no merit in the writ petition filed by the petitioners as well as in the application filed under Order-6 Rule-17 of CPC seeking leave to amend the writ petition. Also there is no merit in the challenge to the amended proviso to Rule-5 based on Article 14 of the Constitution. We find no force in any of the contentions urged on behalf of the petitioners. The decisions relied upon by the learned Counsel for the petitioners have absolutely no application to the facts and circumstances of this case.
14. In the result, the writ petition filed by the petitioners as well as the application seeking leave to amend the writ petition under Order-6 Rule-17 of CPC are hereby dismissed. But in the circumstances of the case, there is however no order as to costs. Our judgment, however, will not stand in the way of the case of the petitioners being considered sympathetically either on the basis of the applicable existing or future rules or by any administrative decision in accordance with law.