Karnataka High Court
The Commissioner Hindu Dharmik Samsthe ... vs Santosh P Bilagi on 31 January, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:2145-DB
WA No. 100427 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
WRIT APPEAL NO. 100427 OF 2022 (S-RES)
BETWEEN:
1. THE COMMISSIONER,
HINDU DHARMIK SAMSTHE AND
DHARMADAAYA DHATTI DEPARTMENT,
TAL: CHAMARAJPET,
DIST: BENGALURU-560018.
2. THE DEPUTY COMMISSIONER,
BELAGAVI DISTRICT, BELAGAVI.
...APPELLANTS
(BY SRI. G. K. HIREGOUDAR, GOVERNMENT ADVOCATE)
AND:
1. SANTOSH P. BILAGI,'
AGE: 35 YEARS, OCC: NIL,
Digitally signed by
R/O. BANDI ONI, TAL: SAVADATTI,
CHANDRASHEKAR
LAXMAN DIST: BELAGAVI.
KATTIMANI
Date: 2024.02.09
10:33:53 +0530
2. THE EXECUTIVE OFFICER,
SRI RENUKA YALLAMMA TEMPLE,
YELLAMGUDDA, SAVADATTI TALUK,
BELAGAVI DISTRICT.
...RESPONDENTS
(BY SRI. JAGADISH PATIL, ADV. FOR RESPONDENT NO.1;
MISS. SHEBA A. KHANAPUR, ADV. FOR
SHRI. SUNIL S. DESAI, ADVOCATES FOR RESPONDENT NO.2)
THIS WRIT APPEAL IS FILED U/S.4 OF THE KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO QUASH THE ORDER PASSED BY THE
LEARNED SINGLE JUDGE IN W.P.NO.147300/2020 DATED
04.04.2022.
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NC: 2024:KHC-D:2145-DB
WA No. 100427 of 2022
THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for Preliminary Hearing, with the consent of the learned counsel for the parties, the same is taken up for final disposal.
2. This intra Court appeal is against order dated 04.04.2022 in W.P.No.147300/2020 wherein learned Single Judge allowed the writ petition quashing Annexure-R and T, and directed respondent No.1 to consider the case of the petitioner for appointment on compassionate ground.
3. Heard learned Government Advocate Sri G.K.Hiregoudar for appellants, learned counsel Sri Jagadish Patil for respondent No.1 and learned counsel Miss Sheba A. Khanapur appearing on behalf of Sri Sunil S.Desai for respondent No.2. Perused the writ appeal papers.
4. The parties to the appeal would be referred to as they stand in the writ petition wherein the appellants herein -3- NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022 were respondents No.1 and 2, respondent No.1 herein was the petitioner, respondent No.2 herein was respondent No.3.
5. Brief facts of the case which are necessary for disposal are that, the father of the 1st respondent Paramesh Irappa Bilagi was working as Hundi Guard in the 2nd respondent-temple. Said Paramesh Bilagi died on 03.01.2018. On the death of father of the petitioner, he made an application on 27.01.2018 requesting compassionate appointment in place of his father as Hundi Guard. The said application was rejected under impugned endorsement dated 15.02.2020 (Annexure-R) by the 2nd respondent-Commissioner. Challenging the said endorsement rejecting petitioner's request for compassionate appointment, the petitioner was before this Court in W.P.No.147300/2020. Learned Single Judge by impugned order dated 04.04.2022 allowed the writ petition, quashed the endorsement and directed the respondent-authorities to consider the case of the petitioner for compassionate appointment as Hundi Guard in the 3rd respondent-temple. -4-
NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022
6. Learned Government Advocate Sri G.K.Hiregoudar would submit that compassionate appointment could be made only in accordance with the prevailing rules governing compassionate appointment. It is submitted that insofar as the State Government servants are concerned, Karnataka Civil Services (Compassionate Appointment) Rules 1996 prevails and insofar as temple employees, no such rule is available in respect of compassionate appointment. Further, learned Government Advocate would contend that compassionate appointment cannot be claimed as a matter of right and he further submits that compassionate appointment cannot be offered as a matter of course. Learned Government Advocate would also submit that there is no scheme or rule governing the compassionate appointment in respect of temple employees. Further, it is brought to the notice of this Court Rule 12 of the Karnataka Hindu Religious Institutions and Charitable Endowment Rules 2002 (for short, '2002 Rules') to contend that appointment of temple servants and archakas shall be by following the procedure prescribed therein. Further, he -5- NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022 submits that the temple employees and archakas could be appointed only by following Rule 12 of 2002 Rules and no appointment can take place contrary to Rule 12 of 2002 Rules. Thus, he submits that unless there is a scheme or rule governing compassionate appointment, compassionate appointment as a matter of course cannot be made. Learned Government Advocate also places reliance on the decisions of the Hon'ble Apex Court in the case of Union of India and another V/s Kartick Chandra Mondal and another1 to contend that if an appointment is made illegally or irregularly, the same cannot be the basis of further appointment and he submits that illegality cannot be perpetuated. Thus, it is submitted that the learned Single Judge committed grave error in directing consideration of petitioner's case for appointment on compassionate appointment, when there is no rule or scheme for appointment of temple servants on compassionate appointment.
1 (2010) 2 SCC 422 -6- NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022
7. Per contra, learned counsel Sri Jagadish Patil would contend that the 3rd respondent-temple has appointed others as archakas and temple servants on compassionate appointment and in that regard, he brings to the notice of this Court Annexure-S dated 02.06.2020. Further, learned counsel would submit that similar treatment ought to have been provided to the petitioner also. When the authorities appointed others on compassionate ground, the authorities could not have discriminated the case of the petitioner. Moreover, he submits that the compassionate appointment is provided to the dependents of the employee so as to overcome immediately financial distress. Therefore, he submits that no fault could be found if the appointment to the petitioner is provided on the death of his father. Thus, he prays for dismissal of the writ appeal.
8. Having heard the learned counsel for the parties and on perusal of the writ appeal papers, we are of the view that the following point would arise for consideration: -7-
NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022 Whether, in the facts and circumstances of the case, the order of the learned single Judge impugned herein requires interference?
9. The answer to the above point would be in the affirmative for the following reasons:
(a) There is no dispute that the father of the petitioner viz., Parmesh, Son of Irappa Bilagi, was working in respondent No.3-Temple as Hundi Guard. He died while in service on 03.01.2018. The petitioner, the son of the deceased Parmesh, submitted an application on 27.01.2018 requesting for compassionate appointment. Under the endorsements dated 26.02.2018 and 15.02.2020, respondent No.2-
Commissioner rejected petitioner's request for compassionate appointment.
(b) Admittedly, the temple and temple employees are governed by the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, (for short, 'the 1997 Act') and also the 2002 Rules. -8-
NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022 Rule 12 of the 2002 Rules provides for procedure of appointment of temple servants and Archakas. A reading of the said Rule would make it abundantly clear that only by following the procedure prescribed under the Rules, the authorities could appoint temple servants or Archakas in the notified temples. There is no provision other than Rule 12 of the 2002 Rules for appointment of Temple servants and Archakas.
(c) Compassionate appointment cannot be claimed as a matter of right, and the authorities cannot offer compassionate appointment as a matter of course. Compassionate appointment can be made only in accordance with the prevailing rules/scheme governing compassionate appointment. When there is no Scheme or Rule providing compassionate appointment, no compassionate appointment could be made. In the instant case, neither the 1997 Act nor the 2002 Rules provides for compassionate appointment in case of death of a temple servant or -9- NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022 archakas. It is true that compassionate appointment is provided to overcome the financial crisis on the death of bread winner i.e., an employee, but such compassionate appointment, to overcome the financial distress, could be made only in accordance with the existing Rules or Scheme. In the absence of any Rule or Scheme providing for compassionate appointment, the learned Single Judge could not have directed consideration of the petitioner's case for appointment on compassionate grounds. The learned counsel for the petitioner is not in a position to point out under which Rule, the petitioner would get a right to seek compassionate appointment.
The Hon'ble Apex Court in Bhawani Prasad Sonkar Vs. Union of India & Ors.2, was considering a case of compassionate appointment in the Railways and, at paragraph 20, it is specifically observed that compassionate appointment cannot be made in the 2 (2011)4 SCC 209
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NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022 absence of Rules or Regulations issued by the Government or by a Public Authority. The relevant portion of the same reads as follows:
(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service.
Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. parents, spouse, son or daughter and not to all relatives,
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NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022 and such appointments should be only to the lowest category that is Class III and IV posts."
(d) Learned Counsel, Sri. Jagadish Patil contends that respondent No.2 has provided compassionate appointment to temple servants in various temples in the State of Karnataka and in that regard, he brings to the notice of this Court Annexure-S dated 02.06.2020 which provided compassionate appointment in the very same respondent No.3- temple. When we have come to the conclusion that compassionate appointment cannot be claimed as a matter of right and it could be claimed only in accordance with Rules prevailing in respect of compassionate of appointment, the petitioner cannot claim parity. If such appointment is de hors the Rules or Scheme or such appointments are illegal or irregularly made, the same benefit cannot be extended to the petitioner. The Hon'ble Apex Court in the case of Kartick Chandra Mondal (supra), at paragraph 25 of the judgment has held as follows:
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NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022 "25. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in State of Bihar v. Upendra Narayan Singh6, the relevant portion of which is extracted hereinbelow: (SCC p.
102, para 67) "67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order...." Appointment on equality under Article 14 of the Constitution cannot be claimed on the basis of an appointment made illegally or irregularly. Thus, there is no
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NC: 2024:KHC-D:2145-DB WA No. 100427 of 2022 merit in the contention of the learned counsel for the petitioners.
10. For the reasons recorded above, we are of the view that the order passed by the learned Single Judge is unsustainable and requires to be set aside. Hence, the following:
ORDER The writ appeal is allowed. The impugned order dated 04.04.2022 passed in W.P. No.147300/2020 is set aside, and consequently, writ petition stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE CLK/KMS List No.: 1 Sl No.: 4