Karnataka High Court
Radharani Mahadev Kolambe vs The State Of Karnataka on 16 January, 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 16th DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.32858/2009 (S-RES)
BETWEEN:
Smt. Radharani Mahadev Kolambe,
Aged 33 years,
D/o. Mahadev Kolambe,
R/o. Door No.53/11B, 6th Cross,
Shahunagar,
Belgaum - 590 010.
... PETITIONER
(By Sri H. Subramanya Jois, Sr. counsel for
Sri K.C. Shantkumar, Adv. )
AND:
1. The State of Karnataka,
Represented by its Secretary,
Law, Justice and Human Rights
Department, Vidhana Soudha,
Bangalore - 560 001.
2. The High Court of Karnataka,
Bangalore - 560 001,
Represented by its Registrar General.
3. The Civil Judges (Junior Division),
Selection Committee,
High Court of Karnataka,
High Court Buildings,
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Bangalore - 560 001,
Represented by the Registrar General.
... RESPONDENTS
(By Sri Raghavendra G. Gayatri, HCGP)
This writ petition is filed under Article 226 of the
Constitution of India, praying to call for the records and
direct the respondents to issue to the petitioner an order
of appointment as a Civil Judge (Jr.Dn.) in implementing of
the select list of candidates bearing Notification dated 6th
June 2009 vide Annexure-A expeditiously and without loss
of further time.
This petition coming on for hearing this day, the
Court made the following:
ORDER
In response to a Notification No.CJRC-1/2006 dated 1st April 2006, inviting applications for recruitment to the posts of Civil Judges (Junior Division), in accordance with the Karnataka Judicial Services (Recruitment) Rules, 2004, the petitioner, an advocate, submitted application. The petitioner was successful in the written examination and was subjected to Viva-voce test. The select list of 232 candidates vide Annexure-A having been published, the petitioner's name appears at Sl.No.41. The Government received information regarding the marriage of the 3 petitioner with a married man already having another wife and thereby attracting Sub Rule (2) of Rule 5 of the Karnataka Civil Services (General Recruitment) Rules, 1977 (for short 'the Rules'), which disqualifies such a candidate for being appointed to the State Civil Service. Consequently, petitioner's case for appointment was rejected and her name was not included in the Notification bearing No.LAW 134 LAC 2008 dated 30th September 2008, as at Annexure-B, issued in exercise of the powers conferred by Article 234 of the Constitution of India, by His Excellency, the Governor of Karnataka, appointing 223 persons selected under the Karnataka Judicial Service (Recruitment) Rules, 2004 as Civil Judges (Junior Division) in the Karnataka Judicial Service, in the pay scale of `9,000-14,550. Petitioner having submitted a representation dated 13.5.2009, as at Annexure-D, an endorsement dated 15.9.2009, as at Annexure-E having been issued, rejecting her candidature on the ground that there is violation of Rule 5(2) of the Rules, this writ petition has been filed to grant the following reliefs. 4
(1) To declare and strike down to Rule 5(2) of the K.C.S.(General Recruitment) Rules, 1977 as ultravires the provisions of Articles 14, 15, 16(1) and 21 of the Constitution of India and also as inconsistent with the provisions of the Karnataka Government Servants (Conduct) Rules 1966;
(2) Quash an endorsement bearing No.LAW 134 LAC 2009 dated 15.9.2009 vide Annexure-E, issued by the 1st respondent;
(3) Direct the respondents to issue to the petitioner an order of appointment as a Civil Judge (Jr. Divn) in implementing of the Select List of candidates bearing Notification No.CJRC-1/2006, dated 6th June 2009 vide Annexure-A .
2. Petitioner has challenged the constitutional validity of Sub-Rule(2) of Rule 5 of the Rules, which provides for disqualification for appointment. The main grounds of challenge are;
(i) It is inconsistent with the provisions of the Karnataka Government Servants (Conduct) Rules, 1966;
(ii) It brings about a hostile discrimination between a citizen and a citizen and a civil servant, without any rational basis and inhibits a Hindu ineligible to be appointed to the State civil services, if he has more than one wife living and that, if such a person being woman, she cannot marry a person, who already has wife living;
(iii) Keeping in view the provision Rule 5(2) of the Rules and the Karnataka Government Servants (Conduct) Rules, 1966 permitting bigamous marriages subject to Governmental sanction, the impugned Rule is opposed to Article 15 of the Constitution of India, for, the same seeks to bring about a hostile discrimination between a man and a 5 woman. Thus, discrimination on the basis of sex, similarly as discrimination on the basis of religion is forbidden.
(iv) It is unguided and does not contain or lay down any yardstick for granting an exemption envisaged therein.
3. The State has justified the impugned provision, by filing statement of objections. It has been stated that;
(i) Granting exemption to a person from the operation of Rule 5(2) is always at the pleasure of the Government and only in cases where special grounds are available to do so, that the State can exempt the person from the operation of the Rule.
(ii) Granting of exemption from operation of the Rule to a person who has incurred disability being the sole prerogative of the State and the petitioner having been found to be undeserving for grant of such exemption and there being no special ground in the case of the petitioner, entailing her for such special treatment, the respondents declined to extend the benefit of the proviso, to the petitioner.
(iii) The Rule has been made for 'just cause' with the sole objective of ensuring that the people of high morality are appointed to State Civil Services and the classification made under the Rule is to serve an objective purpose and is therefore valid.
(iv) The Rule was framed with the sole aim of achieving an 'objective purpose', class of persons to be governed by the Rule is 'very well defined', the yardstick employed in classifying the well defined group of people is just and reasonable and the Rule has general application to all the persons who suffer the peculiar disqualification. 6
4. Sri H.Subramanya Jois, learned senior counsel, in support of the prayers made in the writ petition contended as follows:
(i) Sub Rule (2) of Rule 5 of the Rules is ultravires the provisions of Articles 14, 16 and 21 of the Constitution of India, apart from being inconsistent with the provisions of the Karnataka Government Servants (Conduct) Rules, 1966.
(ii) That the impugned Rule, keeping in view the proviso under Rule 5 (2) of the Rules and the Karnataka Government Service (Conduct) Rules, 1966 permitting bigamous marriages subject to Governmental sanction, is unconstitutional, the same being opposed to Article 15 of the Constitution of India, for, the same seeks to bring about a hostile discrimination between a man and a woman and that such discrimination is forbidden in law;
(iii) Alternatively, in view of the facts and circumstances which the petitioner has narrated in detail in her representation dated 13.5.2009 (Annexure-D), it was, but, necessary that the proviso to Rule 5(2) of the Rules ought to have been applied and failure to do so has infected the endorsement, as at Annexure-E.
5. Sri Raghavendra G. Gayatri, learned HCGP, on the other hand contended that;
(i) There is always a presumption of constitutionality arising in favour of a statute and the onus to prove its invalidity lies on the person who assails the same.
(ii) The Government is the best Judge of the needs of the particular classes and estimates the degree of evil so as to adjust its legislation accordingly.
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(iii) The disqualification for appointment prescribed in the Rules is permissible and the same is neither arbitrary nor discriminatory.
(iv) There being no challenge with regard to the competence to frame the Rule, the impugned Rule having been made for a 'just cause', with the sole objective of ensuring that the people of high morality are appointed to the State Civil Services, the impugned Rule is constitutionally valid.
(v) Denial of appointment to the petitioner is in the light of Rule 5(2) of the Rules, as the petitioner has acquired disability for appointment to State Civil Service - Karnataka Judicial Service, by virtue of marrying a man who is already married and has a wife living.
6. The grounds of challenge can be categories into;
(i) The provision is arbitrary and violates Article 14 of the Constitution;
(ii) The disqualification does not serve the purpose sought to be achieved by the Rules;
(iii) The provision is discriminatory and violates Articles 15 and 16 of the Constitution;
(iv) The provision adversely affects the liberty of leading personal life and violates Article 21 of the Constitution.
7. Keeping in view the record of writ petition and the rival contentions, the points for determination are:
(1) Whether Rule 5(2) of the Karnataka Civil Services (General Recruitment) Rules, 1977 is arbitrary, irrational and violative of Articles 14, 15, 16 and 21 of the Constitution?8
(2) Whether the rejection of the candidature of the petitioner for the post of Civil Judge (Junior Division) is justified?
Re-Point No.1:
8. Article 309 of the Constitution empowers the appropriate legislature to regulate the conditions of service of persons serving the Union or a State, as the case may be, by an enactment subject to the provisions of the Constitution. The competence of the State Legislature in enacting the Rule is not under challenge. The relevant portion of the Rule is reproduced below for ready reference;
"5.Disqualification for appointment -
(1) No person shall be eligible for appointment to a State Civil Service unless he is.-
(a) to (e) xxxxxx (2) No man who has more than one wife living and no woman who has married a man already having another wife, shall be eligible for appointment to a State Civil Service:
Provided that the Government may, if satisfied that there are special grounds for doing so, exempt any person from the operation of this sub-rule".9
The impugned provision, placed in plain words, disqualifies a man who is married and has a wife living and a woman who married a man already having another wife living, for appointment to State Civil Services.
9. Rule 28 of the Karnataka Civil Services (Conduct) Rules, 1966 having relevance, the same reads as follows:
"28. Bigamous marriage-
(1) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him.
(2) No female Government servant shall marry any person who has a wife living without first obtaining the permission of the Government".
10. It is trite that, Article 14 of the Constitution forbids classification. However, it does not forbid reasonable classification for the purpose of legislation. To satisfy the constitutional test of permissibility, two conditions must be satisfied, namely;
(i) That the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and; 10
(ii) That such differentia has a rational relation to the object sought to be achieved by the statute in question.
11. The classification in the instant case is well defined. A married man who has more than one wife living and a woman who has married a man already having another wife, are clearly distinguishable from a man having married but not having a wife living, and, a woman who having married a man having no wife living. The two constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing one from the other. Main object sought to be achieved by the legislation is giving effect to the provisions under Ss.494 and 495 of IPC. The disqualification enacted by the provision seeks to achieve the object by bringing in people of high morality not having committed any crime amounting to bigamy or polygamy into State Civil service. The provision has also sought to achieve the objects sought to be achieved in the family laws applicable to the citizens. The classification does not suffer from any 11 arbitrariness. The provision would serve the purpose of the Rule as mandated by the Constitution and the other laws.
12. There is always a presumption in favour of the Constitutionality of an enactment. Where a party seeks to impeach the validity of a Rule on the ground such Rule offends Article 14 of the Constitution, the burden is on such person who attacks the statutory provision. The legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution. It is relevant to notice the ratio of law laid down by the Apex Court in the case of Mohd. Hanif Quareshi and others vs. State of Bihar, AIR 1958 SC 731:
" 15. .... The classification, it has been held, may be founded on different bases, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The 12 Courts, it is accepted, must presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds."
13. Article 15(1) of the Constitution says, the State shall not discriminate against the citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Thus, while religion, race, caste, sex, place of birth may furnish a legitimate basis for classification for the purposes of Article 14, so far as citizens are concerned, Article 15(1) forbids a classification on the ground only of religion, race, caste, sex, place of birth or any of them. The distinction between Articles 14 and 15 has been noticed and made clear by the Apex Court, in the case of Kathi Raning Rawat Vs. State of Saurashtra, AIR 1952 SC 123. It has been held as follows:
"All legislative differentiation is not necessarily discriminatory. In fact, the work 'discrimination' does not occur in Article 14. The expression 'discriminate against' is used in Article 15(1) and Article 16(2) and it means, according to the Oxford Dictionary, "to make an adverse distinction with regard to; to distinguish unfavourably from 13 others". Discrimination thus involved an element of unfavourable bias and it is in that sense the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those Articles. But the position under Article 14 is different. Equal protection claims under that Article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the Legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies."
14. From the word only appearing in Article 15, it is clear that discrimination forbidden by Article is discrimination based solely on the basis of religion etc., and no other grounds. If discrimination is based on other grounds as well, then Article 15(1) does not violate the statute, as is clear from the enunciation of law in the case of Anjali Roy Vs. State of West Bengal, AIR 1952 Calcutta 825, wherein, it has been held as follows:
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" Of paramount importance in clause (1) are the words "discrimination" and "only". What the article forbids is discrimination and discrimination based solely on all or any of the grounds mentioned in the Article. All differentiation is not discrimination, but only such differentiation as is invidious and as is made, not because any real difference in the conditions or natural difference between the persons dealt with makes different treatment necessary, but because of the presence of some characteristic or affiliation which is either disliked or not regarded with equal favour but which has no rational connection with the differentiation made as a justifying reason. Next, the discrimination which is forbidden is only such discrimination as is based solely on the ground that a person belongs to a particular race or caste or professes a particular religion or was born at a particular place or is of a particular sex and on no other ground. A discrimination based on one or more of these grounds and also on other grounds is not hit by the Article."
15. S.494 IPC has introduced monogamy, which is essentially voluntary union of life of one man with one woman and vice versa, to the exclusion of all others. The provision indicates that, neither party must have a spouse living at the time of marriage. Polygamy brings with it misery, plight and ignominy to a woman. S.4 of Hindu 15 Marriage Act nullifies and supersedes the practices of polygamy, hypergamy, all over the country among the Hindus. S.494 IPC is intended to achieve the laudable object of monogamy. The Rule in question also is intended to achieve the laudable object of monogamy.
16. The offence under S.495 IPC is an aggravated form of bigamy provided in S.494 IPC. It provides that, if a person who committed the offence defined under S.494 IPC, conceals to the person with whom the second marriage is contracted the fact of former marriage, such person is liable to be punished, as provided therein.
17. In Sarla Mudgal Vs. Union of India - (1995) 3 SCC 635, Apex Court has judicially noticed it being acclaimed in the United States of America that the practice of polygamy is injurious to "public morals", even though some religions may make it obligatory or desirable for its followers, the Apex Court has held that, polygamy can be superseded by the State just as it can prohibit human 16 sacrifice or the practice of sati in the interest of public order.
18. In Mohd. Ahmed Khan Vs. Shah Bano Begum - (1985) 2 SCC 556, the Apex Court was confronted with a canvassed conflict between the provisions of S.125 Cr.P.C., and Muslim personal law. The question was; when the personal law makes a provision for maintenance to a divorced wife, the provision for maintenance under S.125 Cr.P.C., would run in conflict with the personal law. The Constitution Bench has laid down two principles; firstly, the two provisions operate in different fields and, therefore, there is no conflict, and secondly, even if there is a conflict it should be set at rest by holding that the statutory law will prevail over the personal law of the parties, in cases where they are in conflict.
19. In State of Bombay Vs. Narasu Appa Mali - AIR 1952 Bom 84, constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act (25 of 1946) was challenged on the ground of violation of Articles 14, 17 15 and 25 of the Constitution. Considering the contentions urged, it has been held that, "sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole".
20. Rule 21 of the Central Civil Services (Conduct) Rules, 1964 restrains any government servant having a living spouse from entering into or contracting a marriage with any person. Similar provisions can be found in several service rules framed by the States, governing the conduct of their civil servants. Rule 28 of Karnataka Civil Services (Conduct) Rules 1966 is also to the same effect.
21. In the case of Javed and others Vs. State of Haryana and others, (2003) 8 SCC 369, popularly known as two-child norm case, Apex Court has dealt with problem of increasing population, the danger which it poses to the progress of the nation and equitable distribution of its 18 resources and upheld the validity of the Haryana Legislation, imposing a disqualification on persons having more than two children from contesting for a legislative office. The constitutional validity of two-child norm as legislatively prescribed and a departure there-from resulting in attracting applicability of disqualification for holding an elective office was upheld as intra vires the Constitution. It was held that the disqualification is attracted no sooner a third child is born and is living after two living children and merely because the couple has parted with one child by giving it away in adoption, the disqualification does not come to an end.
22. Right to Appointment in Civil Service of the State is neither a fundamental right nor a common law right. What the Constitution guarantees for the citizens is equality of opportunity under the employment of the Government and the prohibition of discrimination between the citizens. Article 309 of the Constitution empowers the appropriate legislature to regulate the recruitment and also 19 the conditions of service of persons serving under the Union or a State, as the case may be, by an enactment, subject to the provisions of the Constitution. Right to appointment is a right conferred by a statute and the same cannot be equated with a fundamental right. There is nothing wrong in the statute which confers the right to seek appointment to a post in State Civil Service, also to provide for the disqualification. The right to appointment to a post in the Civil Service of the State is a pure and simple statutory right. Statutory rights can be subject to statutory limitations, as is clear from the ratio of decision in the case of Jyoti Basu and others Vs. Debi Ghosal and others - (1982) 1 SCC 691. In my opinion, the impugned Rule does not contravene any Fundamental Rights guaranteed under part -III of the Constitution nor does it cross the limits of reasonability. The disqualification as per the impugned Rule has been devised as a social measure to be in conformity with the criminal and family laws of the country.
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23. The Muslim Law permits marrying four women. The personal law does not mandate it as a duty. In fact, by enacting Rule 28 in the Karnataka Civil Services Rules, the State Government has forbidden a Government servant to marry a second time without the permission of the Government. The petitioner herein being a Hindu, cannot be granted permission by the Government to marry a man already having another wife living, because her personal law forbids such a marriage.
24. In the case of Badruddin Vs. Aisha Begum, 1957 Allahabad Law Journal 300, it has been held that though the personal law of Muslims permitted having as many as four wives, but it could not be said that having more than one wife is a part of religion. It has been further held that neither it is made obligatory of religion nor it is framed by conscience.
25. In Ram Prasad Seth Vs. State of U.P. - (1957) 2 LLJ 172, it has been held, that the act of performing a second marriage during the lifetime of one's wife cannot be 21 regarded as an integral part of Hindu religion nor could it be regarded as practicing or professing or propagating Hindu religion.
26. In view of the above, sub-rule (2) of Rule 5 of the Rules, placing disqualification for appointment to State Civil Service on a person who has more than one wife living and a woman who has married a man already having another wife, is not violative of Articles 14, 15, 16 and 21 of the Constitution of India. The provision is intra vires the Constitution, being salutary and also in public interest, being also a social welfare measure.
Re.PointNo.(2):
27. From Annexure-C, it is clear that the petitioner married Gopala B Patil and has given birth to a male child by name Anurag. First marriage of petitioner's husband has ended in a divorce. He married one Smt. Shobha B Lagade, through whom he has 3 children. Smt. Shobha B Lagade and her 3 children are residing separately. Thereafter, Gopala B Patil married Smt.Mathura, elder 22 sister of the petitioner and out of the said wedlock has 3 children, who are residing with him. Smt.Mathura is alive and is living with the petitioner's husband. The petitioner's marriage with Gopala B Patil was solemnized on 16.8.2002. In Annexure-D, a communication sent by the petitioner to the Secretary to the Government, Department of Law, Justice and Human Rights, she denied having knowledge of the first and second marriages of her husband as on the date of her marriage with him and also till a long time after her marriage. However, she has not denied the marriage of her sister Smt. Mathura and 3 children out of the said wedlock. Since the petitioner has not denied her marriage with Gopala B Patil, who has a wife living-Smt.Mathura, sub-rule (2) of Rule 5 being attracted, the petitioner has incurred the disqualification for appointment to State Civil Service. Consequently, respondents are justified in issuing the endorsement dated 15.9.2009, as at Annexure-E and rejecting her candidature to the post of Civil Judge (Jr.Dn.) 23 In view of the foregoing, the writ petition being devoid of merit is dismissed, with no orders as to costs.
Sd/-
JUDGE Ksj/-