Karnataka High Court
S. Balakrishna Reddy vs The Hon"Ble Secretary For Food & Civil on 11 November, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.43909/2011(GM-EC)
BETWEEN:
S. Balakrishna Reddy,
Aged about 33 years,
S/o. Narayana Reddy,
Residing at Boyanahalli Village,
Kamasamudra Hobli,
Bangarpet Taluk,
Kolar District.
...PETITIONER
(By Sri H.C. Shivaramu, Adv.)
AND:
1. The Hon'ble Secretary for
Food & Civil Supplies,
Vikas Soudha,
Government of Karnataka,
Bangalore - 560 001.
2. The Commissioner & Director of
Food & Civil Supplies,
Cunningham Road,
Bangalore - 560 052.
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3. The Deputy Commissioner (Food),
Kolar District,
Kolar.
4. S. Srinivasaiah,
Major, S/o. Munivenkatappa,
Residing at Boyanahalli Village,
Kamasamudra Hobli, Bangarpet Taluk,
Kolar District.
5. Tahasildar,
Bangarpet Taluk,
Bangarpet.
R5 impleaded vide Court Order
dated 10.01.2012.
...RESPONDENTS
(By Smt. B.P. Rupa, HCGP for R1 to R3 & R5;
Sri R.P.Somashekaraiah, Adv. for C/R4)
This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the order dated
10.10.2011 passed by the 1st respondent produced at
Annexure-H1.
This petition coming on for preliminary hearing in 'B'
group this day, the Court made the following:
ORDER
One B.V. Varada Reddy was running a Fair Price Shop (for short 'FPS') at Boyanahalli Village, Kamasamudra Hobli, Bangarpet Taluk. He died on 29.01.1998. Petitioner filed an application on 12.06.1998 before the Deputy Commissioner, Kolar District to transfer 3 the said authorisation, to run the 'FPS' in his name, on the ground that he was adopted by B.V.Varada Reddy. Deputy Commissioner issued a notification dated 31.08.1998 inviting applications for grant of authorisation to run the said 'FPS'. 4th respondent was an applicant in response to the said notification. Questioning the said notification the petitioner filed an appeal before the Commissioner for Food, Civil Supplies and Consumer Affairs, Government of Karnataka, Bangalore (for short 'the Commissioner'). The Commissioner by an order dated 20.03.1998 allowed the appeal and set aside the said notification. Petitioner filed W.P.No.34856/2000 to direct the Deputy Commissioner to dispose of his application dated 12.6.1998 for grant of authorisation. By an order dated 22.11.2000, the Deputy Commissioner was directed to pass appropriate order on the application made by the petitioner in accordance with the directions issued by the Appellate Authority. W.P.No.4605/2003 filed by the 4th respondent to direct the Deputy Commissioner to dispose of a representation and to consider his application for grant of authorisation for 4 running of 'FPS', by taking note of the fact that the notification issued inviting the application for grant of authorisation to run the 'FPS' was cancelled and the notification being not in existence, the claim made pursuant to the said notification was held as not surviving and the writ petition was rejected, with an observation that it is open to the writ petitioner to make an application as and when the notification is issued. By an order dated 07.02.2005, the Deputy Commissioner granted authorisation in favour of the petitioner to run 'FPS' on compassionate ground. An appeal filed against the said order by one Ramachandrappa before the Commissioner was dismissed on 21.08.2006. A Revision Petition was filed by the 4th respondent, under Clause 20 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 (for short 'the Control Order') questioning the said two orders. The Revision Petition having been allowed and the impugned orders therein having been set aside, with a direction to the Deputy Commissioner to consider the applications received in 5 response to his notification dated 31.08.1998 and grant authorisation in accordance with law, this writ petition has been filed.
2. The case of the petitioner is, that he was adopted by B.V. Varada Reddy and he assisted him in conducting of the business of distribution of commodities to the card holders and he having passed SSLC in the year 1990 and also having acquired NTC certificate course in the year 1991, in view of the death of his adopted father on 29.01.1998, a representation having been made and an order dated 07.02.2005 having been passed by the Deputy Commissioner granting authorisation in his favour to run 'FPS' on compassionate ground and the appeal filed thereagainst having been dismissed on 21.08.2006 by the Commissioner, the Revision Petition filed by the 4th respondent being not maintainable and also devoid of merit, the 1st respondent has committed illegality in passing the impugned order, on the analogy of sub-Rule (3) of Rule 3 of the Karnataka Civil Services (Appointment 6 on Compassionate Grounds) Rules, 1996 (for short 'the Rules').
3. Sri H.C. Shivaramu, learned advocate for the petitioner urged that the Deputy Commissioner having granted authorisation in favour of the petitioner to run 'FPS' on compassionate ground, the 1st respondent has acted arbitrarily and illegally in allowing the Revision Petition. He submitted that the case of the petitioner has not been appreciated by the 1st respondent and the impugned order having been in excess of the jurisdiction, is unsustainable.
4. Smt. B.P. Rupa, learned HCGP appearing for the respondent Nos.1 to 3 and 5, contended that the petitioner having failed to prove that he was legally adopted by B.V. Varada Reddy, the 1st respondent having examined the record of the proceedings of the case for the purpose of satisfying itself as to the legality or the propriety of the order passed by the Deputy Commissioner on 07.02.2005, is justified in passing the impugned order. 7 She submitted that the provisions in the Control Order does not provide for an adopted son to seek transfer of the authorisation to run the 'FPS' and the Deputy Commissioner's order dated 07.02.2005 being contrary to the record of the case and the law, the Revision Authority, which has wide jurisdiction, is justified in allowing the Revision Petition. She submitted that the order passed by the Revision Authority is absolutely impregnable and defensible and does not warrant any interference by this Court.
5. Sri R.P. Somashekaraiah, learned advocate for the 4th respondent by referring to the statement of objections filed on 14.12.2011 and also to a Judgment dated 10.10.2013 passed in O.S.No.26/2005 by the Civil Judge (Jr.Dn.), Bangarpet, contended that the 1st respondent is justified in allowing the Revision Petition.
6. The Clauses 13 and 20 of the Control Order, being relevant, the same read thus:
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"13. Prohibition of transfer of authorisation.- No authorised dealer shall assign or transfer his authorisation to any other person by and no person shall carry on business as a transferee or otherwise on behalf of any such authorised dealer:
*** *** ***
20. Power to call for and examine records.- The
Government may suo motu or on an application made to it by an aggrieved person, at any time call for and examine the record of any enquiry or proceedings of any officer exercising or failing to exercise the powers under this order, to suspend or cancel any authorisation issued for the purpose of satisfying itself as to the legality or the propriety of any decision or order passed by such officer and as to the regularity of the proceedings of such officer may pass such order thereon as it thinks fit, provided that the State Government shall not pass any order under this clause which adversely affects any person unless such person has been given a reasonable opportunity of being heard."
7. The 1st respondent by considering the Revision Petition has held in the impugned order as follows:
"4. Transfer of authorisation on compassionate grounds to run FPS was allowed under the rules, considering the fact that the family would have been deprived of the source of income or livelihood. This is similar to the provision made in case of death of government servants while in service. In case of death of a government servant while in harness, either his or her spouse or a son or 9 daughter is provided with a government job on compassionate grounds. Since misuse of the rule, would deprive another deserving citizen of employment opportunity, in order to prevent such attempts, adopted children are not considered for compassionate appointment. In this regard, it is worthwhile to reproduce sub- rule (3) of rule 3 of The Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, which states as follows:
"(3) An adopted son or daughter of a deceased Government Servant shall not be eligible for appointment under these rules."
5. Since the provisions to transfer or appoint in both the rules are made to ensure that the family of the deceased person is not deprived of the source of income, analogy can be had from the restrictive clause of the above-mentioned rules. The Deputy Commissioner was, therefore, right in issuing notification calling for applications."
(Italicised is for emphasis)
8. Government of Karnataka issued a notification No.FCS 152 DRA 94 dated 3rd December 1994 amending the Control Order, 1992. Clause 13 was amended by way of insertion of a proviso, which being material for deciding of this petition, is reproduced hereunder: 10
"provided that the authorised authority may order for such transfer in the event of the death of the authorised dealer to the spouse or son or unmarried daughter with the prior approval of the Government".
(underlining is by me)
9. Petitioner filed an application on 12.06.1998 to the Deputy Commissioner requesting for transfer of authorisation to run 'FPS' in his name on the ground that he was adopted by B.V. Varada Reddy, who was running the 'FPS' at Boyanahalli, died on 29.01.1998, without natural legal heirs. To prove the adoption, the petitioner relies upon a unregistered deed dated 20th September 1992. The 4th respondent had filed O.S.No.26/2005 against the petitioner and others, in the Court of Civil Judge (Jr.Dn.) at Bangarpet, with regard to the alleged adoption of the petitioner and the said Court has held that the alleged adoption is void in law and that the petitioner is not the adopted son of B.V. Varada Reddy.
10. Clause 13 of the Control Order prohibits the transfer of authorisation. The said clause was amended by 11 inserting a proviso, reproduced in para 8 supra. In the event of death of the authorized dealer, the authorised authority was empowered to order for transfer of the authorisation to the spouse or son or unmarried daughter with the prior approval of the Government. The Deputy Commissioner while passing the order dated 07.02.2005 has acted in contravention of the amended provision of Clause 13.
11. Keeping in view the rival contentions and the record of the case, the point for consideration is, 'whether the claim of the petitioner as the 'adopted son', for transfer of the authorisation to run the 'FPS' on compassionate ground is tenable?'
12. In the case of H.K. Chandrashekara Vs. Deputy Commissioner and others, ILR 2005 Kar 2602, the authorisation holder of a 'FPS', who was unmarried, having died, an application to transfer the authorisation, on compassionate ground made by his sister-in-law having been permitted, when questioned in a writ petition on that 12 ground that the transfer is in violation of Clause 13, it has been held as follows:
"6. Proviso to Cl.(13) of the Karnataka Essential Commodities (PDS) Control order, 1992 reads as hereunder:
"provided that the authorised authority may order for such transfer in the event of the death of the authorised dealer to the spouse or son or unmarried daughter with the prior approval of the Government".
From the above proviso it is clear that on the death of the authorised dealer, dealership may be transferred only to the spouse of the deceased dealer or son or in favour of unmarried daughter. Even if the deceased had no son and had only married daughter, dealership cannot be transferred to the name of the married daughter also. Therefore, it is clear that the authroisation can be transferred only either in favour of the spouse or son or unmarried daughter. But R-3 in this case is neither a spouse nor an unmarried daughter but she is the sister-in-law of the deceased dealer. Therefore, this Court is of the opinion that the order passed by the Deputy Commissioner as per Annexure-F dated 10.12.2004 transferring dealership on compassionate grounds in the name of R-3 is held to be bad in law. No doubt, the Deputy Commissioner has passed the order granting authorisation considering the fact that the husband of the petitioner is a dumb person and that the deceased was elder brother of her husband. But the law does not permit the Deputy Commissioner to grant such authorisation in favour of R-3. Therefore, Annexure-F dated 10.12.2004 is required to be quashed."
(emphasis supplied) 13
13. The petitioner is not the natural born son of the authorisation holder - B.V. Varada Reddy. His claim of adoption is not based on any credible evidence and has not been accepted in O.S.No.26/2005. Thus, the order passed by the Deputy Commissioner in transferring the authorisation in favour of the petitioner on 7.2.2005 is wholly arbitrary and illegal.
14. The amended provision, reproduced in para 8 supra, specifically refers to spouse or son or unmarried daughter of the deceased authorised dealer. The claim made for transfer of authorisation, on the death of authorised dealer, has to be considered by the Deputy Commissioner, in accordance with proviso inserted to Clause 13 of the Control Order and not otherwise, since the main provision contains prohibition of transfer of authorisation. The Control Order, is statutory in nature. While construing the proviso inserted to Clause 13, the same cannot be extended to those not shown therein. There is no scope for the application of any equitable consideration in view of 14 the plain language used therein. Keeping the said principles in view and there being no statutory provision or a scheme, the 1st respondent is justified in applying the analogy and the restrictive clause in sub-rule (3) of Rule 3.
15. In the matters relating to appointment on compassionate grounds, Apex Court has repeatedly held that such appointment is an exception to the constitutional scheme adumbrated under Articles 14 and 16 of the Constitution and the appointment cannot be claimed as a matter of right and must be provided for in the rules.
16. In the case of Bandeppa Narayani Vs. The Deputy Commissioner, Bagalkot District and others, ILR 2013 Kar 725, while considering the case of an adopted son for appointment on compassionate ground, upon the death of a civil servant while in service vis-a-vis Rule 3, it was held by this Court as follows:
"16. Rule 3 of the Rules being relevant, the same reads as follows:
"3. Eligibility for appointment:-(1) Appointment on compassionate grounds under the rules shall 15 not be claimed as a matter of right and shall not be given as a matter of course.
(2) x x x x x (3) An adopted son or daughter of a deceased Government servant shall not be eligible for appointment under these rules.
In view of the said provision specifically making 'an adopted son or daughter' of deceased servant not eligible for appointment on compassionate grounds and also the enunciation of law by the Apex Court and this Court, in the decisions noticed supra, and as an expansive meaning cannot be given and the Rule should be strictly interpreted, the decision taken by the 1st respondent, vide Annexure-E and conveyed by the 3rd respondent, vide Annexure-F, is neither arbitrary nor illegal. An adopted son having not been included in the definition of Rule 2(1) (a) and (b) of the Rules and in view of the ineligibility as per sub-rule (3) of Rule 3, noticed supra, the rejection of the claim of the petitioner for appointment on compassionate ground is justified."
(emphasis supplied) In the circumstances, the view taken by the Revision Authority is not perverse and the conclusion arrived in the impugned order does not suffer from any legal infirmity.
For the foregoing discussion, the writ petition being devoid of merit is dismissed, with no orders as to cost.
Sd/-
JUDGE Ksj/-