Karnataka High Court
The Commissioner Directorate Of ... vs Smt T H Ashalatha on 4 September, 2019
Bench: Chief Justice, Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
WRIT APPEAL NO.1826 OF 2019 (S-RES)
BETWEEN:
1. THE COMMISSIONER DIRECTORATE OF
MUNICIPAL ADMINISTRATION,
9TH FLOOR, VISVSHWARAIAH TOWER,
DR. AMBEDKAR VEEDHI,
BENGALURU-1.
2. THE DEPUTY COMMISSIONER,
TUMKUR DISTRICT-571 201.
TUMKUR. ... APPELLANTS
(BY SRIP.B. ACHAPPA, AGA)
AND:
1. SMT. T.H. ASHALATHA,
W/O. LATE THIPPESWAMY,
AGED ABOUT 40 YEARS,
R/AT NAGARA NAVILE,
BAGUR HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573 116.
2. THE COMMISSINER,
CITY MUNICIPAL COUNCIL,
TIPTUR, TUMKUR DISTRICT-572 201.
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3. SMT. S.G.LEELAVATHI,
D/O. GANGAMMA,
(CLAMINING TO BE WIFE OF LATE THIPPESWAMY )
R/A. UDDINALU POTHINALU HOBLI,
MANVI TALUK,
RAICHUR DISTRICT-584 123.
... RESPONDENTS
(BY SRI. K.R. RAMESH, ADVOCATE FOR C/R1)
---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
a)TAKE NOTE OF THE ABOVE SAID FACTS AND SET
ASIDE THE JUDGEMENT AND ORDER DATED 05.09.2017
PASSED BY THIS HON'BLE COURT IN WP NO.57779/2014
(S-RES) ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
On an earlier date, the parties were put to notice that the appeal will be taken up for final disposal.
One Thippeswamy was an employee on the establishment of the second respondent-City Municipal Council, Tiptur. The said employee passed away on 22nd April 2010 while he was in the employment. The claim of the first respondent is that her marriage with the deceased -3- employee was solemnized on 8th October 2000 which was registered on 24th April 2004. It appears that the third respondent and the first respondent were claiming to be the wives of the deceased employee. Therefore, the first respondent herein filed a civil suit claiming a declaration that she was entitled to all the death benefits on account of the death of her husband. In the said suit, it was claimed by the first respondent that the third respondent herein is not the lawfully wedded wife of the deceased employee. It appears that in the said suit, there was a compromise petition filed between the first respondent and the third respondent. A consent decree was passed on the basis of the consent petition. In the consent decree, it was recorded that the first respondent was entitled to compassionate appointment. Accordingly, the first respondent applied for appointment on compassionate ground. By a communication dated 4th January 2012, the Commissioner of the Directorate of Municipal Administration (the first appellant) has informed the first -4- respondent that as per Sub-rule 9 of the Karnataka Civil Service (Appointment of Compassionate Grounds) Rules, 1996 (for short 'the Compassionate Appointment Rules'), there is no provision for grant of compassionate appointment to the second wife of the deceased employee. This decision was challenged by the first respondent before the learned Single Judge. Another prayer made in the writ petition apart from challenging the said communication is for release of all the death benefits to the first respondent in terms of the compromise.
2. The learned Single Judge by setting aside the aforesaid communication dated 4th January 2012 directed the first appellant to reconsider the prayer made by the petitioner for grant of compassionate appointment in the light of observations made in the judgment. The learned Single Judge in paragraph 11, held thus :
" In light of the above, it is observed that the expression "widow" in Rule 3 must be understood in its natural, ordinary or popular sense and not by -5- qualification of the said expression to the effect that the widow must have been a legally wedded wife of the deceased male Government servant which would in fact be detrimental to the object and purpose of the Rules under consideration. By using the expression "widow", the rule making authority has deliberately not qualified the same because the intention is that if a deceased male Government servant has left behind two widows, either of them could claim for appointment on compassionate ground and not necessarily restricted to a widow who was the legally married wife of the deceased male servant. Further, while interpreting the expression "the widow" under the Rules, her status vis-à-vis the deceased male Government servant as to whether she was the legally wedded wife or not is extraneous and totally foreign, having regard to the object and purpose of the Rules under consideration. The Rules are meant for giving immediate succor to the dependents of the deceased male Government servant and hence, an enquiry as to whether the widow who has made a claim for appointment on compassionate ground was the legally wedded wife of the deceased male Government servant would be extraneous and irrelevant."
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3. The learned AGA in support of the appeal, submitted that a member of the family of the deceased employee is entitled to compassionate appointment provided he/she is duly qualified at the time of appointment as provided in the Compassionate Appointment Rules. He invites our attention to the definition of the dependants and family in Rule 2. He submitted that the word 'widow' used in the definition of dependants is obviously applicable to a legally wedded wife of the deceased employee. He also invited our attention to Rule 28 of the Karnataka Civil Service (Conduct) Rules, 1966 which puts on embargo on a government servant contracting another marriage without obtaining prior permission of the government notwithstanding the fact that such subsequent marriage is permissible under the personal law for the time being applicable to him. He submits that when a widow makes an application for grant of compassionate appointment, an enquiry into the question whether she is a lawfully wedded wife of the deceased employee has to be made. He also -7- invited our attention to Rule 4 of the Compassionate Appointment Rules containing conditions for compassionate appointment. He submitted that the main condition is that the family of the deceased Government servant should be in a financial crisis or destitution. He pointed out that the definition of 'family' in Rule 2 includes a spouse. He submitted that the decision which is referred in paragraph 13 of the impugned order does not decide the issue at all. On instructions, he makes a statement that all the dues payable on account of the death of the employee has been released to the third respondent.
4. The learned counsel appearing for the first respondent invited our attention to the compromise entered into between the first and the third respondents. He submitted that even assuming that the view of the learned Single Judge in paragraph 12 is incorrect, in view of the compromise decree, the case of the first respondent for grant of compassionate appointment ought to have -8- been considered. He invited our attention to the order dated 10th February 2014 passed by the learned Single Judge in W.P. No.27370/2011 as well as the judgment and order dated 25th September 2001 in MFA No.1260/1994 delivered by a Division Bench of this Court. He submitted that to both the orders which record the compromise between two women, the State Government has given effect to the compromise by taking necessary action. He submitted that the order dated 25th September 2001 in MFA No.1260/1994 has been affirmed by the Apex Court.
5. We have carefully considered the submissions of the learned counsel for both the parties.
6. It is well settled law that the grant of appointment on compassionate ground to the family members of a deceased government employee is an exception to the general rule and a member of the family of the deceased employee can claim appointment on compassionate ground only in accordance with the -9- relevant Rules or policy. There is no right to get such an appointment in absence of Rules or a policy.
7. In the present case, the compassionate appointment is governed by the Compassionate Appointment Rules which are framed in exercise of the rule making power under the Karnataka State Civil Services Act, 1978. Rule 2 of the Compassionate Appointment Rules defines two terms namely, (a) Dependant of the deceased government servant and (b) Family. Family as defined provides that in relation to a deceased Government servant, it means his or her spouse and their son, unmarried daughter and widowed daughter, unmarried brother unmarried or widowed sister who were living with him. Rule 3 lays down the eligibility for the compassionate appointment. Rule 3 reiterates a well settled principle that appointment on compassionate grounds shall not be claimed as a matter of right and shall
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not be given as a matter of course. Sub-rule (2) of Rule 3 reads thus:
"2. Appointment under these rules shall be restricted to the dependent of a deceased Government servant in the following order of preference, namely:-
(i) in the case of the deceased male
Government servant:-
a. the widow;
b. a son, if widow is not eligible or for any valid reason she is not willing to accept the appointment;
c. an unmarried daughter, if the widow and son are not eligible or for any valid reason they are not willing to accept the appointment;
d. a widowed daughter, if the widow, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment.
(i-a) in the case of the deceased male unmarried Government Servant:-
a. unmarried brother;
b. unmarried or widowed sister,
who were dependent upon him and were living with him.
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(ii) in the case of the deceased female government servant;
a. a son;
b. an unmarried daughter, if the son is not eligible or for any valid reason he is not willing to accept the appointment;
c. the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment.
[(ii-a) in the case of the deceased female unmarried Government Servant:-
a. unmarried brother;
b. unmarried or widowed sister,
who were dependent on her and were living with her.] Clause (1) of sub-rule 1(a) of Rule 2 is relevant for consideration which reads thus :
"(a) Dependent of the deceased Government servant means:-
(i) in the case of deceased male Government servant, his widow, son, unmarried daughter and widowed daughter who were dependent upon him and were living with him;"
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8. Rule 4 is relevant and in particular, clause (1) thereof which reads thus :
"4. Conditions of appointment:- Appointment on compassionate grounds under these rules shall be subject to the following conditions, namely:-
1. The family of the deceased Government servant should be in a financial crisis or destitution.
2. Person seeking appointment shall be within the age limit specified for the post in the relevant rules of recruitment specially made in respect of any service or post read with sub-rule (3) of Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977 and where it is not so specified such person shall be within the age limits specified in the Karnataka Civil Services (General Recruitment) Rules, 1977.
3. Person seeking appointment should possess the minimum qualification specified for the post in the relevant rules of recruitment specially made in respect of any service or post:
[Provided that nothing in this sub-rule and sub rule (5) of Rule 5 of the Karnataka Civil Services (General Recruitment) Rules, 1977, insofar as it relates to educational qualification shall apply to appointment under these rules to any Group 'D' Post.]
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4. Appointment shall be confined to any post in Group 'C' or Group 'D' depending upon the qualification specified for the post but excluding the posts carrying the pay scales higher than the scale of pay of the post of Assistant in the Karnataka Government Secretariat as may be revised from time to time and any other post in either of the groups as may be specified by the Government from time to time.
5. Appointment shall be made only against a direct recruitment vacancy.
6. Appointment shall be made in the department in which the deceased Government servant was working:
Provided that if no vacancy is available in the department subject to any general order that may be issued by the Government, appointment may be made in any other department of the Government where the vacancy is available."
9. In case of a deceased male Government servant, his widow is entitled to seek compassionate appointment. In fact in case of deceased male government servant, a widow gets priority in view of clause (i) (a) of Sub-Rule (2) of Rule 3. When the Rules refer to the widow of a deceased government servant, the person claiming to
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be a widow must have been lawfully married to the government servant. When the Rule uses the word 'the widow' of the deceased government servant, the marriage between the government servant and the person claiming to be the widow must be lawful.
10. We have gone though paragraph 11 of the impugned order passed by the learned Single Judge. The view taken by the learned Single Judge is that when a woman claiming to be the widow of the deceased government servant applies for appointment on compassionate ground, the enquiry whether she is a legally wedded wife of the deceased government servant, is completely extraneous and erroneous. We are unable to concur with the view taken in paragraph 11 of the order that when a woman claims to be widow of the deceased government servant, she need not establish that she was a legally wedded wife of the deceased government servant. Unless she establishes that she is a legally
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wedded life, she is not entitled to seek compassionate appointment. In what manner a widow can establish that she is a legally wedded wife depends on the facts of each case. If the service record and other authenticate and official records show that the widow was a legally wedded wife of the deceased government servant, no further enquiry may necessary. It is not that in every case, the person claiming to be a widow must produce a declaratory decree of a civil court. All that is required is that when a woman claims to be the widow of the government servant and claims compassionate appointment, an enquiry has to be made by the appointing authority whether there is any material on record to show that the woman is really the widow of the deceased government servant. If the view taken in paragraph 11 is held as correct, a woman in a living in relationship with the deceased government servant, can become entitled to a compassionate appointment by claiming to be the widow.
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11. As pointed out earlier, we emphasize that the compassionate appointment is meant for a family of the deceased government servant which is in a financial crisis or destitution. As stated earlier, in the definition of family, spouse is included. This supports the view that there has to be a valid marriage between the spouse and the deceased government servant. When a person claims to be a spouse of another person, it is obvious that there is a valid marriage between them.
12. Now, we turn to the order of the Division Bench dated 25th September 2001 in MFA No.1260/1994. The said order refers to the compromise on the basis of compromise petition between the appellant therein and the first respondent. The appellant and the first respondent claimed to be the widows of the deceased government servant. After accepting the compromise and passing a decree in terms of the compromise, in paragraph 5, two directions have been issued. The first direction was to the
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Authorities to disburse the benefit in terms of the compromise petition entered into between the parties. The second direction to the Authorities was to sympathetically consider the case of the parties for appointment on compassionate ground. Thus, there is not even a direction that either the first appellant or the first respondent should be granted compassionate appointment. There is no direction that the compassionate appointment should be made as provided in the compromise. Therefore, the said order and affirmation thereof by the Apex Court does not help the first respondent at all.
13. The second order relied upon by the respondents is dated 10th February 2014. This order passed by the learned Single Judge directs the first and second respondents - the Karnataka State Cooperative Apex Bank Limited to regulate the service benefits on account of death of the employee of the bank, in terms of the joint compromise petition and to grant appointment to
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the appellant on compassionate ground. Firstly, this order does not bind a Division Bench. Secondly, this order does not lay down any law and cannot be said to be a binding precedent.
14. The finding recorded by the learned Single Judge on the issue of entitlement of the first respondent and especially the finding recorded in paragraph 11 shows that the learned Single Judge has held that the expression "widow" in Rule 3 must be understood in its natural, ordinary or popular sense and not by qualification of the said expression to the effect that the widow must have been a legally wedded wife of the deceased male Government servant. We are of the view that this approach of the learned Single Judge is not correct.
15. In fact, we have given natural meaning to the words 'widow' and 'spouse' used in the Compassionate Appointment Rules.
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16. Though we are not in agreement with the final direction issued in paragraph 14 of the impugned order to consider the case of the first respondent for grant of compassionate appointment, an enquiry has to be made whether the first respondent can be said to be the widow of the deceased government employee. As observed earlier, normally such an enquiry has to be made on the basis of the service record and other material. In every case, a direction cannot be issued to a person claiming to be the widow to produce a declaratory decree.
17. Hence, we dispose of the appeal by passing the following order:
(i) We disapprove the view taken by the learned Single Judge in paragraphs 9 and 11 of the impugned judgment;
(ii) However, the direction issued in paragraph 14 of the impugned judgment would remain. But the case of the first respondent shall be
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considered in the light of the law laid down by this Court by this judgment;
(iii) We clarify that what we have held above about the consent decree between the first and third respondents, applies only to the issue of compassionate appointment and the observations made in this order shall not be construed as if this Court has held that the remaining part of the consent decree is not lawful;
(iv) We direct the appellant to give all the particulars about the amounts paid to the third respondent on account of the services rendered by the deceased Government employee. The information with all the details shall be provided by the appellant within a period of one month from the date on which a copy of this judgment is available;
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(v) This order will not prevent the first respondent from initiating proceedings for recovery of the amount from the third respondent in accordance with the consent decree;
(vi) The appeal is partly allowed.
No orders as to costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Snc