Karnataka High Court
The Director vs Smt R Ambika on 23 February, 2022
Bench: S.Sujatha, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
W.A.No.1030 /2021 (S-RES)
BETWEEN:
1. THE DIRECTOR
(ADMINISTRATION & HUMAN RESOURCES)
KARNATAKA POWER TRANSMISSION
COMPANY LIMITED, CAUVERY BHAVAN
K.G.ROAD, BENGALURU-560 009.
2. THE CHIEF ENGINEER (ELEC.)
STATE POWER TRANSMISSION CENTRE
KARNATAKA POWER TRANSMISSION
COMPANY LIMITED, RACE COURSE ROAD
BENGALURU-560 001.
3. SUPERINTENDING ENGINEER (ELEC.)
SCADA, KARNATAKA POWER
TRANSMISSION COMPANY LIMITED
ANANDA RAO CIRCLE
BENGALURU-560 009.
...APPELLANTS
[BY SRI. SHIRISH KRISHNA, ADVOCATE (VC)]
AND:
1. SMT. R.AMBIKA
D/O LATE RAMESH K
W/O ARJUN HEBSUR
AGED ABOUT 30 YEARS
R/O NO.596, T-1
NANJUNDESHWARA RESIDENCY
2
38TH MAIN ROAD, 25TH CROSS
IDEAL HOMES, RAJARAJESHWARI NAGAR
BENGALURU-560 098.
...RESPONDENT
[BY SRI. N.B.PATIL, ADVOCATE FOR C/R1 (VC)]
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 06.07.2021 RENDERED BY THIS HON'BLE
COURT IN W.P.NO.27594/2019.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.01.2022, THIS DAY, RAVI V. HOSMANI J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging judgment dated 06.07.2021 passed by learned Single Judge in WP No. 27594/2019, this appeal is filed.
2. Appellants herein were respondents no.1 to 3 in Writ Petition; while respondent herein was petitioner. For the sake of convenience, they shall be referred to as per their ranks in the Writ Petition.
3. Brief facts as stated are that Sri K. Ramesh, died while in service on 27.11.2015. He was working as Executive Engineer in the office of respondent no.3. Due to untimely death, his family was put to financial distress. With a view to provide for families of employees of Corporation suffering from financial distress due to untimely death of it's employees, respondent 3 Karnataka Power Transmission Corporation Limited ('KPTCL' for short) has framed Regulations for appointment of dependants of such employees on compassionate grounds. These Regulations are titled as Karnataka Electricity Board Employees Recruitment (Appointment on Compassionate Grounds) Regulations, 1997 (for short 'Regulations'). Regulations current on date of death of petitioner's father were as amended by notification dated 08.10.2012.
4. Claiming benefit under Regulations, petitioner's mother submitted application on 21.05.2016 seeking for appointment of petitioner on compassionate grounds. Thereafter, petitioner herself filed application for compassionate appointment on 30.05.2016, as she was only daughter of deceased and her mother had consented for her appointment. Application was accompanied with necessary documents such as, survivorship certificate, residence certificate, caste and income certificate and testimonials. Though, she had a brother namely, Arjun Chinnali, had predeceased her father. Further, petitioner was married to one Arjun Hebsur, but after death of her father, she was residing with her mother. Therefore, application was filed mentioning the same.
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5. However, respondent no.2 issued an endorsement dated 28.02.2016 rejecting petitioner's claim on the ground that she was married daughter of deceased employee and not entitled for appointment on compassionate grounds. Challenging the endorsement, petitioner filed W.P.No.27594/2019. Petitioner had also questioned constitutional validity of Regulations on the ground of discrimination between 'married daughters' and 'married sons' as falling foul of right to equality guaranteed under Article 14 of the Constitution of India.
6. Upon entering appearance, respondents filed statement of objections contending that 'married daughter' was specifically excluded from definition of 'family' of deceased employee and therefore, petitioner was not entitled for consideration. It was also contended that Regulations did not provide right for appointment on compassionate grounds. It was also contended that as petitioner was married, she could not be expected to be living with her mother. Referring to caste and income certificate produced as Annexure-F, it was contended that income of petitioner was mentioned as Rs.60,000/-, therefore, petitioner was not in financial distress, especially, on vague submission 5 that she was residing with her mother and without disclosing her husband's financial and employment status. In view of decision in W.A.No.1856/1992 and W.A.No.2185/1992, reversing decision in R. Jayamma Vs. KEB reported in (1992) 3 KLJ 570, interference by learned Single Judge was not called for.
7. It was further submitted that under similar circumstances, this Court in the case of Smt. Vijayalakshmi Sangayya Chouckimath in W.P.No.104067/2016 dismissed writ petition. In the case of Smt. Manjula Vs. State of Karnataka reported in ILR 2004 Kar. 1016, denial of compassionate appointment to 'married daughter', even where she was unemployed was upheld. It was also contended that lapse of several years after death of petitioner's father before petitioner filed Writ Petition would indicate that family did not suffer financial distress.
8. Defending amended Regulations, it was contended that normally after marriage, daughters migrate to residence of their husband, unlike in case of sons. This consideration formed basis for classification, which was reasonable and in furtherance of 6 object mainly to prevent bereaved family of deceased employee from suffering financial distress.
9. Learned Single Judge proceeded to allow Writ Petition, relying upon decision of this Court passed in Smt. Bhuvaneshwari V Puranik Vs. State of Karnataka and Others, in W.P.No.17788/2018 disposed of on 15.12.2020. In the said case, discrimination between 'married sons' and 'married daughters' under Compassionate Appointment Rules (for short 'Rules') applicable to government servants was struck down. It was further observed that though, W.A.No.4917/2021 filed against identical case in Writ Petition no.44318/2015 disposed of on 10.02.2021 and there was no stay of judgment, therefore, ratio would be applicable.
10. On said finding, learned Single Judge allowed Writ Petition, quashed endorsement dated 28.10.2016 and directed KPTCL to reconsider petitioner's case for appointment on compassionate grounds, if she were found eligible in all other respects bearing in mind the law laid down in the order passed in W.P.No.17788/2018 dated 15.12.2020. Respondents were directed to pass appropriate orders in accordance with law within 7 three months. Petitioner was enjoined to give an undertaking that she would take care of her mother during remainder of her lifetime.
11. Sri. Shirish Krishna, learned counsel for appellant, at the outset, submitted that in the case of State of Madhya Pradesh & Ors. Vs. Amith Shrivas reported in 2020 (10) SCC 496, Apex Court held that there was no inherent right to compassionate appointment and it could be claimed only in conformity of eligibility criteria stipulated in the scheme. Learned counsel further submitted that though, it was not in dispute that K. Ramesh died while in service of KPTCL on 27.11.2015 and application for appointment on compassionate grounds was filed on 30.05.2016 claiming benefit under Regulations, application was rejected on 28.10.2016 taking note of status of petitioner as 'married' mentioned in her application. Rejection was in conformity with Regulations providing exclusion of 'married daughters' from definition of 'family of deceased employee', as it stood on date of death. It was submitted that reliance was placed upon decision in the case of Smt. Bhuvaneshwari V Puranik (supra) would not be appropriate, as said decision was rendered after considering challenge to Rules applicable to 8 government servants and not the Regulations applicable to KPTCL. It was also submitted that challenge to validity of Regulations was not pressed and not decided by learned Single Judge. Therefore, direction issued would be unsustainable in law.
12. It was further submitted that a three Judges Bench of Hon'ble Supreme Court in the case of N.C. Santhosh Vs. State of Karnataka & Ors. reported in 2020 (7) SCC 61, held that basis for consideration of application for compassionate appointment would be the norms prevailing at the time of consideration. But, in the case of Seema Kausar Vs. State of Maharastra & Others, in Spl. Leave to Appeal (C) no.19252 of 2018 disposed of on 06.09.2021, Hon'ble Supreme Court held that policy prevailing at the time of death of government employee would apply for consideration of application for compassionate appointment. Even in the case of Director of Treasuries in Karnataka and Another Vs. V. Somyashree reported in 2021 SCC OnLine SC 704, interpreting definition of 'dependent of a deceased government servant', Hon'ble Supreme Court clarified that daughter, who was married at the time of death of government employee and subsequently divorced would not be a dependant and would be ineligible to claim 9 compassionate appointment. Hon'ble Supreme Court took note of fact that as on date of death of government employee, applicant therein was not divorced and shown her status as 'married' in application. It was held that subsequent event of divorce would not entitle her to claim compassionate appointment. It was submitted that this would also be indicative of legal position that Regulations prevalent on date of death would be the consideration.
13. Again in the case of Secretary to Government Department of Education (Primary) & Others Vs. Bheemesh @ Bheemappa reported in 2021 SCC OnLine SC 1264, Hon'ble Supreme Court while specifically examining proposition for retrospective application of amendment to definition of 'members of family', after referring to decision in N.C. Santhosh & Others, (supra) held that basis for consideration of application for compassionate appointment would be Rules prevailing on date of death of government employee and not date of consideration of application.
14. It was submitted that KPTCL had amended Regulations by notification dated 08.11.2021 expanding 10 definition of 'family of deceased employee' by including 'married daughters' also. The amendment was brought into force with effect from 09.04.2021. As petitioner's case has to be considered with reference to Regulations prevalent on date of death of petitioner's father, grant of relief amounted to giving retrospective effect to amended Regulations, which were expressly stated to be effective from 09.04.2021.
15. It was also submitted that in the case of Ramkanali Colliery of BCCL Vs. Workmen reported in (2001) 4 SCC 236, Hon'ble Supreme Court explained effect of expression 'substituted' used in context of deletion of provisions of law, stating that where an existing provision is deleted and a new provision is substituted, such deletion has effect of repealing existing provision and introduction of new provision. If vested rights under repealed provision were taken away by substituted provision, it could no longer be contended that right under repealed provision should be enforced. In view of above law, it was submitted that as Regulations prevalent on date of death had since been amended, but with prospective effect, rights under un-amended Regulations stood eclipsed and could not be 11 enforced. On said ground also, order passed by learned Single Judge calls for interference.
16. Learned counsel elaborated stating that learned Single Judge in Smt. Bhuvaneshwari's case (supra) after interpreting phrase 'dependent of a deceased government servant' had struck down exclusion of 'married daughters' from ambit of expression 'family' in Rule 2 (1) (a) (i), Rule 2(1)(b) and Rule 3 (2) (i) (c) of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 as illegal and unconstitutional. Said decision was given after considering decisions in Ranjana M. Anerao; C.B. Muthamma and Sou. Swara Sachin Kulkarni (supra) etc., none of which were decided considering Regulations applicable to KPTCL. It was submitted that decision in Ranjana M. Anerao's case (supra) referred to Aparna Zambre's case (supra), which in turn referred to decisions of this Court in Manjula and R. Jayamma (supra).
17. In Manjula's case (supra), while considering Rules applicable to government employees, it was held that for consideration of application for appointment on compassionate grounds, 'dependency' should be the yardstick and not 12 'marriage', after distinguishing decision in W.A.No.1856/1992 and connected matters. Discrimination in refusing appointment only on ground that applicant was married woman would be violative of Constitution, but said decision would not apply to KPTCL.
18. It was submitted that decision in R. Jayamma (supra) having been set-aside in Writ Appeal No.1856/1992 and connected matters, without distinguishing this case from R Jayamma (supra), allowing of writ petition by learned Single Judge would not be justified.
Decision of Division Bench of this Court in the case of Managing Director KPTCL & Others Vs. Smt. K.M. Meghashree in W.A.No.497/2021 disposed of on 30.07.2021, with a direction to consider case of 'married daughter' for compassionate appointment by referring to earlier Division Bench decision in Smt. Bhagyashree (supra). It was submitted that said decision was rendered following earlier decision in the case of State of Karnataka & Others Vs. Smt. C.N. Apporva Shree & Another, in W.P.No.5409/2021 disposed of on 22.03.2021 and Spl. Leave to Appeal (c) No.20166/2021 filed before Hon'ble Supreme Court challenging decision in 13 C.N. Apporva Shree (supra) was dismissed on 17.12.2021, by referring to decision in Smt. Bhuvaneshwari (supra). In none of these cases Regulations were challenged nor held unconstitutional. In fact, in Asha Vs. M.D. KPTCL & Others in W.A.No.200027/2021 disposed of on 26.11.2021, challenge to clause (3) of Regulations insofar as exclusion of 'married daughters' for appointment on compassionate grounds was dismissed by Division Bench. On above submission, learned counsel sought for allowing the appeal.
19. On the other hand, Sri N.B. Patil, learned counsel for respondent, at the outset, submitted that in paragraphs no.16 to 18 of Writ Petition, constitutional validity of Regulations was questioned. The nature of discrimination against 'married daughters' under Rules applicable to government employees and Regulations being pari materia, proceeded to follow the law laid down in Smt.Bhuvaneshwari's case (supra) to allow writ petition by issuing appropriate consequential directions. As discrimination against 'married daughters' insofar as right to claim appointment on compassionate grounds, having been spelt upon consistently by Courts of law, no interference with order passed by learned Single Judge was called for.
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20. He relied upon following decisions:
In the case of C.B. Muthamma Vs. Union of India and Others reported in AIR 1979 SC 1868, Hon'ble Supreme Court held that provision requiring permission before marriage and denial of employment to 'married women' as discriminatory and violative of Articles 14 & 16 of the Constitution.
21. In the case of State of West Bengal Vs. Purnima Das, reported in 2017 SCC Online Cal 1321, Division Bench of High Court of Calcutta, considering similar issue of denial of appointment on compassionate grounds to 'married daughters', struck down such restriction as unconstitutional. Further relying upon decision in Manjula (supra), High Court of Bombay, in the case of Aparna Narendra Zambre Vs. Assistant Superintendent Engineer, reported in 2011 SCC OnLine Bom 994 held that government resolution being manifestly discriminatory and arbitrary was violative of Articles 14, 15 & 16 of the Constitution of India. Similar view was expressed by Division Bench of High Court of Bombay in the case of Sou. Swara Sachin Kulkarni Vs. Superintendent Engineer, Pune, reported in 2013 SCC OnLine Bom 1549. Thereafter 15 referring to its decision in Aparna N Zambre (supra), High Court of Bombay in the case of Ranjana Murlidhar Anerao Vs. State of Maharastra, reported in 2014 SCC OnLine Bom 910 struck down similar discriminatory provision excluding 'married daughter' from the expression 'family' from being entitled to consideration for grant of retail kerosene licence as violative of Articles 14, 15 and 19(1)(g) of the Constitution of India.
22. Learned counsel also relied upon decision of Division Bench of High Court of Allahabad in the case of Smt. Vimla Srivastva Vs. State of Uttar Pradesh & Another in W.P. No.60881/2015, disposed of on 04.12.2015, wherein exclusion of 'married daughters' and 'married adopted daughters' from definition of 'family' in the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974, was held as violative of Articles 14 and 15 of Constitution of India, referring to decisions in C.B. Muthamma and Manjula and Smt. Ranjana Anerao etc.,(supra).
23. In the case of Meenakshi Dubey Vs. M.P. Poorva Kshetra Vidyuth Vitran Co., Ltd., and others reported in (2020) 1 MPLJ 657, Full Bench of High Court of Madhya 16 Pradesh, while considering clause 2.2 and 2.4 of policy of compassionate appointment of State Government dated 29.09.2014, which excluded 'married daughter' from zone of consideration for appointment on compassionate basis, as violative of Articles 14, 15, 16 and 39(a) of the Constitution of India.
24. Learned counsel also relied upon decision in the case of Secretary, Ministry of Defence Vs. Babita Puniya and others, reported in AIR 2020 SC 1000, Hon'ble Supreme Court held denial of permanent commission for women officers in Armed Forces as violative of guarantee of equality under Article 14 of Constitution of India. It was held that an absolute prohibition of women SSC Officers from obtaining permanent commission would fall foul of constitutional guarantee of equality.
25. Reliance was also placed on decisions in Smt. Bhuvaneshwari and Smt. Bhagyashree (supra). On the above submissions, learned counsel sought for dismissal of writ appeal.
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26. From the above, it is not in dispute that petitioner's father - K.Ramesh, died while in service of KPTCL on 27.11.2015. An application seeking appointment on compassionate grounds was filed on 30.5.2016. It was rejected by issuing endorsement on 28.10.2016. The only reason stated therein was that Regulations did not provide for consideration of application of 'married daughter'. Regulations prevalent on date of death, were as amended by notification dated 08.10.2012 (Annexure-L). Regulation 2(a)(i) relevant for the instant case reads as follows:
"2(a) : In the said Regulations, unless the context otherwise requires:-
(i) Dependent of a deceased male Board employee means, his widow, son, unmarried daughter and widowed daughter who were wholly dependent on him and were jointly living with him."
27. Rules considered in Smt. Bhuvaneshwari's case (supra) viz., Rule 2 (1) (a) (i), Rule 2(1)(b) and Rule 3 (2) (i) (c) of Rules, 1996 read as follows:
"Rule 2.Definitions:- In these rules unless the context otherwise requires -
(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; and xxxx 18
(b) "Family" in relation to a deceased Government servant 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. Eligibility for appointment:-
(1) xxxx (2) Appointment under these rules shall be restricted to dependant of a deceased government servant in the following order of preference, namely-
(i) In the case of the deceased male government servant-
(a) xxxx
(b) xxxx
(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;"
28. A bare comparison of Regulations with Rules would reveal that they are pari materia. The basis for classification and nature of discrimination are same and for same purpose.
29. Dismissal of Writ petition in Smt. Asha's case (supra) and its confirmation by Division Bench would not apply to this case, as it was on ground of suppression of material fact. Therefore, validity of Regulations cannot be understood as upheld. As narrated above, such discrimination has been held to be unconstitutional in a long lineage of judgments (supra) 19 though rendered considering different Rules, we have no hesitation to declare discrimination under Regulations likewise, especially, as provisions of Rules and Regulations are pari materia and when petitioner had in fact challenged constitutional validity of Regulations in the Writ Petition. In our opinion, it would be too hyper-technical on the part of appellants to question order passed by learned Single Judge on the ground that there was no decision on validity/invalidity of Regulations. The fact that KPTCL has amended its Regulations to bring them in tune with decision in Smt. Bhuvaneshwari (supra) is apparently an acknowledgement of the above legal position.
30. Therefore, we do not find sufficient justification to interfere with order passed by learned Single Judge directing appellants to consider case of petitioner in the light of law declared.
31. The other contention urged by learned counsel for appellants that in view of prospective amendment to Regulations w.e.f. 09.04.2021, Regulations prevalent on date of death of petitioner's father was no longer in existence and therefore, discriminatory Regulations were not available for this Court to 20 spell upon, referring to judgment of Hon'ble Supreme Court in Ramkanali Colliery of BCCL (supra) would also be misconceived. Firstly, nature of amendment brought in vide notification dated 08.11.2021 w.e.f., 09.04.2021 is not by substitution, but by way of addition. Therefore, Regulations (Annexure-L) would be available for scrutiny by this Court. As noted above, provisions of Regulations and Rules are same.
32. From perusal of impugned order, it is noted that learned Single Judge was appraised of amendment made to Regulations by KPTCL deleting word 'unmarried'. The only submission made by learned counsel for appellants as recorded was that some clarification was sought from government. Learned counsel for appellants has not explained either about clarification sought or how same would prevent learned Single Judge from passing orders after coming to conclusion that there was no justification for denying consideration of petitioner's case for compassionate appointment.
33. It appears that there was no attempt made to justify Regulations except a feeble submission that order dated 10.02.2021 passed in W.P.No.44318/2015, (perhaps relied upon by petitioner) was pending in W.A.No.497/2021, therefore, 21 impugned endorsement was rightly opined as being unjustifiable. It was specifically noted that Division Bench had not granted stay of order dated 10.02.2021. The position as it now stands is that W.A.No.497/2021 was disposed of on 30.07.2021, following decision in Smt. Bhagyashree (supra), which in turn followed earlier decision in Smt. C.N. Apporva Shree (supra), and which is confirmed by Hon'ble Supreme Court in Spl. Leave to Appeal (C) No.20166/2021 on 17.12.2021. Therefore, ratio of Smt. Bhuvaneshwari's case (supra) has received affirmation at the hands of Apex Court also apart from being reiterated in the long lineage of decisions referred to by learned counsel herein.
34. Even contention regarding retrospective application of amendment to Regulations dated 08.11.2021 would be misconceived as amendment is prospective and not by way of substitution, i.e., prior to amendment, KPTCL sought to justify discrimination against 'married daughters' on the basis of reasonable classification as upheld in W.A.No.1856/1992 and connected matters. But, basis for classification was distinguished in Manjula's case (supra), which as narrated above received affirmation in W.A.No.497/2021 relied upon by appellant before learned Single Judge. Said decision as stated above has been 22 affirmed by Apex Court. Therefore, quashing of endorsement dated 28.10.2016 and issuance of direction to reconsider petitioner's application for appointment on compassionate grounds, if she is otherwise eligible does not call for interference.
In the result, we pass following:
ORDER Writ Appeal is dismissed.
However, appellants are directed to consider case of petitioner as ordered by learned Single Judge, within three months from today.
Sd/-
JUDGE Sd/-
JUDGE Bvk/Psg*