Karnataka High Court
Mrs. V Somyashree vs The Director Of Treasuries on 17 December, 2018
Bench: Ravi Malimath, K.Natarajan
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 17TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
WRIT PETITION NO.5609 OF 2017 (S-KAT)
BETWEEN:
MRS. V SOMYASHREE
DAUGHTER OF:
LATE P.BHAGYAMMA
AGED ABOUT 31 YEARS
RESIDING AT NO.2419
3RD CROSS, KARASAVADI ROAD
HOSAHALLI
MANDYA - 570 012
... PETITIONER
(BY SRI:K S NARESH SANTHOSH, ADVOCATE)
AND:
1. THE DIRECTOR OF TREASURIES
IN KARNATAKA
PODIUM BLOCK
VISHVESHWARAIAH TOWERS
BENGALURU - 560 001
2
2. THE DISTRICT TREASURY OFFICER
DISTRICT TREASURY
MANDYA DISTRICT
MANDYA - 570 012
... RESPONDENTS
(BY SRI:I THARANATH POOJARY, ADDITIONAL
GOVERNMENT ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 9.12.2015 IN APPLICATION
NO.6393 OF 2015 PASSED BY THE KARNATAKA
ADMINISTRATIVE TRIBUNAL, BENGALURU AT ANNEXURE-
B AND CONSEQUENTLY QUASH THE ENDORSEMENT
DATED 3.5.2013 PASSED BY THE RESPONDENT NO.1 AT
ANNEXURE-A5; DIRECT THE RESPONDENTS TO CONSIDER
THE CASE OF THE PETITIONER FOR APPOINTMENT ON
COMPASSIONATE GROUNDS AND APPOINT HER.
*****
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, RAVI MALIMATH J., PASSED THE
FOLLOWING:
ORDER
The case of the petitioner is that, her mother was working as a Second Division Assistant at the office of District Treasury, Mandya. She died on 25.03.2012. The petitioner married on 12.11.2010. Due to certain differences with her husband, M.C.No.81 of 2012 was filed 3 before the Family Court at Mandya seeking for a decree of divorce. By an order dated 20.03.2013, the decree of divorce was granted and the marriage was annulled. Thereafter, she made an application before the respondents seeking appointment on compassionate grounds. The first respondent issued an endorsement rejecting the claim of the applicant on the ground that the provisions of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 is not applicable to her, since she is a divorced daughter. Questioning the same, she filed Application No.6393 of 2015 before the Karnataka Appellate Tribunal. By an impugned order dated 09.12.2015, the application was rejected. Hence, this petition.
2. The learned Counsel for the petitioner contends that the petitioner being a divorced daughter, is entitled for a compassionate appointment under the relevant Rules. That ever since she filed an application for divorce, she is staying with her mother. The decree of 4 divorce was granted on 20.03.2013. Therefore, she being a dependent of the deceased mother is entitled to for an appointment on compassionate grounds.
3. The same is disputed by the learned Additional Government Advocate. He contends that Rule 3(2)(ii) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, prescribes appointment only to a widowed daughter or to an unmarried daughter. The petitioner does not come under any of those categories. Hence, he pleads that there is no error committed by the respondent-authorities. Hence, no interference is called for.
4. Heard learned Counsels.
5. A dependent of a Government servant has been defined in Rule 2 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, as follows:
5
"2. Definitions:- (1) In these rules, unless the context otherwise requires:-
(a) "Dependent of a 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
(ii) in the case of a deceased female Government servant, her widower, son, (unmarried daughter and widowed daughter) who were dependent upon her and were living with her;
(b) "family" in relation to a deceased Government servant means his or her spouse and their son, (unmarried daughter and widowed daughter) who were living with him.
(2) Words and expressions used but not defined shall have the same meaning assigned to them in the Karnataka Civil Services (General Recruitment) Rules, 1977." 6
6. The eligibility for appointment on the death of a female employee is in terms of Rule 3(2)(ii) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, which reads as follows:
"(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.
(d) a widowed daughter, if the widower, son and unmarried daughter are nor eligible or for any valid reason they are not willing to accept the appointment.
3. xxx
4. xxx"
7
7. The Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 came into effect in terms of the Notification dated 12.09.1996. A dependent was defined as, in a case of a 'deceased male Government servant', his widow and son and in a case of a 'deceased female Government servant', her widower and son, provided they were living with him or her and who were dependent and living with him or her. Thereafter, by the second amendment dated 24.11.2000, an 'unmarried and widowed daughter' was substituted for the words "unmarried daughter". Therefore, at present the Rule would include an "unmarried daughter and widowed daughter". The reason for including an "unmarried and widowed daughter" are not too far to find. An unmarried daughter is necessarily dependent on her parents. A widowed daughter is also dependent on her parents. Therefore, the Rule prescribes that even for an unmarried or widowed daughter, they must be dependent and living with the deceased. Therefore, it is not enough being 8 unmarried or widowed, but the mandate is that one should also be dependent and living with the deceased. To this class of daughters, a divorced daughter is not included. We do not find that there was any explicit reason to deliberately avoid a 'divorced daughter'. A daughter will continue to remain a daughter whether she is unmarried, widowed or divorced. Therefore, the consideration is not the status of a daughter, but the question of her dependency. An unmarried daughter, a widowed daughter and a divorced daughter being dependent and living with the deceased, would certainly be regarded as a dependent. Therefore, the Rule would narrate that a daughter who is unmarried or widowed can be considered as a dependent. There is no specific exclusion of a divorced daughter. The position of a divorced daughter vis-à-vis the dependency is similar to that of an 'unmarried or widowed daughter'. Unmarried and widowed daughters are dependents by their status. A divorced daughter would fall in the same class of an unmarried or widowed daughter. It is an 9 established law that there cannot be exclusion of persons belonging to the same class. All persons belonging to the same class are required to be treated equally. Therefore, a divorced daughter has to be considered on par with an 'unmarried or widowed daughter'.
8. The intention of the Rule Making Authority in adding an 'unmarried and widowed daughter' to the definition of dependents is clear. An 'unmarried and widowed daughter' were subsequently added by an amendment, in view of the fact that they are considered to be dependents. Hence, 'an unmarried and a widowed daughter' provided they are dependents on their parents, constitute the same class. It is for this reason that 'an unmarried and widowed daughter' have been added. Therefore, if the intention of the Rule Making Authority has to be considered, it is evident that, it is only by an inadvertent omission that the word 'a divorced daughter' has been excluded.10
9. The Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, do not make any classification so far as a 'son' is concerned. A son is treated as a 'son' whether he is married or not and whether he is a widower or not. It is only when it comes to a 'daughter' that the Rule makes a distinction that a 'daughter' should be 'unmarried or widowed'. Therefore, we are of the view that there cannot be a distinction between two children merely on the ground of sex. There cannot be a classification when it comes to a daughter and no classification at all when it comes to a son. Therefore, we are of the view that the Rule is absolutely discriminatory against a daughter.
10. In relation whereto, is a prominent Irish adage that "A SON IS A SON TILL HE GETS A WIFE, BUT A DAUGHTER IS A DAUGHTER THROUGHOUT HER LIFE".
Therefore, the adage is aptly applicable in the given case. 11
11. The High Court of Karnataka in the case of MANJULA Vs. STATE OF KARNATAKA AND ANOTHER reported in ILR 2004 KAR 4881, was concerned with the very same question. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of C.B.MUTHAMMA Vs. UNION OF INDIA AND OTHERS reported in AIR 1979 SC 1868, wherein it was held that, if a married man has a right, a married woman, other things being equal, has an equal right as that of a married man. That the discrimination would affect Article-16 of the Constitution of India. Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of KANWARJEET SINGH AND OTHERS Vs. AIR INDIA AIR HOSTESSES ASSN. AND OTHERS reported in 2003(6) SCC 278, wherein it was held that there is a constitutional prohibition to the State not to discriminate citizens only on sex, however, it does not prohibit a special treatment to the women in employment on their own demand. The judgment of the Division Bench of this Court in Writ Appeal 12 No.1856 of 1992 was also considered, wherein, the Division Bench held that, even a married daughter should be included in the category of dependency. On considering the aforesaid judgments, the learned Single Judge therein held that Articles 15 and 16 of the Constitution of India prohibits discrimination on sex. Therefore, the learned Single Judge was of the view that no married women could be denied entry into service on compassionate grounds, only because she is married. This judgment of the learned Single Judge was followed by the High Court of Bombay in the case of APARNA NARENDRA ZAMBRE Vs. KRISHNA KOYNA UPSA SINCHAN PROJECT BOARD, reported in 2011 SCC Online Bombay 994.
12. Reliance is also placed on the judgment of this Court reported in 2011 SCC Online Kar 196, in the case of K.N.SAVITHA VS. STATE OF KARNATAKA AND OTHERS, wherein the earlier judgments of this court reported in ILR 2004 KAR 4881, in the case of MANJULA VS. STATE OF KARNATAKA, BY ITS SECRETARY DEPARTMENT OF 13 CO-OPERATION, BENGALURU, and the other judgments of the Calcutta High Court were considered. Thereto, an application was made by a divorced daughter for an appointment on compassionate grounds, which was rejected by the authorities. On considering various judgments, the Court held that the rejection of employment on the ground that the petitioner therein was a divorced woman, was not tenable. The respondents - State was directed to consider the case of a divorced daughter for an appointment on compassionate grounds, subject to fulfillment of other conditions. It is presently submitted at the Bar that no writ appeal has been preferred by the State against the said order. Therefore, the order of the learned Single Judge has been accepted by the State wherein a divorced daughter was held to be entitled for an appointment on compassionate grounds.
13. Even though the records would indicate that the decree of divorce was obtained almost one year after the death of her mother, the petition for divorce was filed 14 in the year 2012 itself. The averments in the divorce petition would indicate that they were living separately since the year 2011 and that there was no co-habitation between them since then, which means that though she lived with her husband for a period of one year, ever since 2011, she was living with her mother and she was dependent on her mother. Her mother died on 25.03.2012. That in terms of the mutual decree for divorce under Section 13-B of the Hindu Marriage Act, the decree of divorce was granted, a copy of which has been produced herein at Annexure-7. The same would indicate that all the valuables that were given by the husband were returned. There is no order of any maintenance. There is no property that she has received from her ex-husband. In fact, what she has received are all that were given by her family to him. There is not even an ounce of advantage she has received from her ex-husband. Therefore, it is apparent that she was absolutely 15 dependent on her mother and living with her for her livelihood.
14. The Rules have been framed in order to show compassion to the representative of the deceased. When the material on record clearly indicates that the daughter being a divorcee, was completely dependent on her mother, we do not find any reason as to why such a relief should not be granted to her. Under these circumstances, to exclude a divorced daughter from being considered for an appointment, in our considered view, is discriminatory and arbitrary.
15. The material on record would indicate that, admittedly, the petitioner is a divorced daughter. She was dependent on her mother and was living with her. The same is the language used even in Rule 3 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, Therefore, the yardstick that has to be applied is one of dependency and not the status of the 16 marriage. It is for this reason that an unmarried daughter and a widowed daughter are considered as dependents. The definition also indicates that in addition to this requirement, one should be dependent and living with the deceased. The material on record would indicate that the relationship of the petitioner with the husband broke down and she was living with her mother. The same is also a part of the Court records in the divorce proceedings. Therefore, the condition with regard to being a dependent on the mother and living with her has been fulfilled.
16. It is needless to state that 'an unmarried daughter and a widowed daughter' are dependents on their parents, provided they are living with them and dependent on them. Therefore, to exclude only one category of a divorced daughter is discriminatory. In our considered view, 'a divorced daughter' stands on the same footing as that of 'an unmarried daughter' or 'a widowed daughter', provided she was dependent on the deceased and living with him/her. If a divorced daughter is not living with her 17 parents or not dependent on them, then she cannot be considered as a dependent. However, if the facts are proved that the divorced daughter is dependent and living with her parents, then she too, would be entitled for an appointment on compassionate grounds.
17. The Rule would therefore have to be read harmoniously. If the Rule is to be construed literally, it would lead to discrimination and would cause injustice. There is no intention of the Rule Making Authority to specifically deny the relief to a 'divorced daughter'. When the Rule Making Authority has added an 'unmarried and widowed daughter', a 'divorced daughter' would also have to be considered as belonging to the same class. Therefore, when the Rule is read harmoniously, it has to be construed to include a 'divorced daughter' also. Therefore, we hold that a 'divorced daughter' who is a dependent and living with her parents should also be 18 considered on par with 'an unmarried and widowed daughter' who is dependent and living with her parents.
18. In view of the aforesaid discussion, it is held that 'a divorced daughter' shall be considered on par with 'an unmarried and a widowed daughter'. Therefore, wherever a reference is made to 'an unmarried daughter and widowed daughter' in the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, the same shall also be read to include 'a divorced daughter'. The rest of the Clauses with regard to her being dependent on her parents, living with them etc., shall stand applicable even to 'a divorced daughter'.
19. For the aforesaid reasons, the petition is allowed. The order dated 09.12.2015 passed in Application No.6393 of 2015 by the Karnataka Administrative Tribunal, Bengaluru, is set-aside. The application is partly allowed. Respondents are directed to consider the application of the petitioner for grant of Page No.18 is retyped and replaced vide Court order dated 26.07.2019.
19compassionate appointment, based on the aforesaid observations, subject to compliance of other requirements of law and pass necessary orders within a period of four weeks from the date of receipt of a copy of this order.
Sd/- Sd/-
JUDGE JUDGE
*bgn/-