Dismissed

Karnataka Veterinary v. Ms Lavanya N.G.

Karnataka HC18 Mar 2024WA/76/2024

Case brief

AI extract

What is this about?

The Division Bench dismissed the writ appeal filed by Karnataka Veterinary Animal and Fisheries Sciences University challenging a Single Judge order directing the University to consider a petitioner's case for compassionate appointment based on her father's death, excluding earlier rules in favor of amendments inclusive of divorced daughters.

What did the court decide?

The writ appeal was dismissed as meritless; the contempt petition and interlocutory applications survived appeal were disposed of accordingly.

Karnataka Veterinary Vs Ms Lavanya N.G. — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC:11018-DB WA No. 76 of 2024 C/W CCC No. 38 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF MARCH, 2024 PRESENT

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THE HON'BLE MR N. V. ANJARIA, CHIEF JUSTICE

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AND

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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WRIT APPEAL NO. 76 OF 2024 (S-RES) C/W CCC NO. 38 OF 2024 (CIVIL)

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IN WRIT APPEAL NO.76 OF 2024

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BETWEEN :

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KARNATAKA VETERINARY ANIMAL AND FISHERIES SCIENCE UNIVERSITY NANDINAGAR, BIDAR - 585 401 REPRESENTED BY ITS REGISTRAR.

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…APPELLANT

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Digitally signed by AMBIKA H B Location: High Court of Karnataka

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(BY SMT. VAISHALI HEGDE, ADVOCATE)

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AND :

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MS. LAVANYA N.G. D/O LATE NAGEGOWDA AGED ABOUT 28 YEARS R/AT NO. 20, 15^TH CROSS KANAKANAGAR NEAR RAILWAY GATE R.T. NAGAR POST, BANGALORE - 560 032.

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…RESPONDENT

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(BY SRI R. SUBRAMANYA ADVOCATE A/W; SRI NARASIMHARAJU, ADVOCATE)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE ABOVE

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NC: 2024:KHC:11018-DB WA No. 76 of 2024 C/W CCC No. 38 of 2024

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WRIT APPEAL AND SET ASIDE THE FINAL ORDER DATED 12.10.2023 PASSED BY THE LEARNED SINGLE JUDGE IN W.P. No. 18785/2023 AND CONSEQUENTLY DISMISS THE SAID WRIT PETITION IN ITS ENTIRETY.

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IN CCC NO.38 OF 2024 (CIVIL)

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BETWEEN :

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MS. LAVANYA N.G. D/O LATE NAGEGOWDA AGED ABOUT 28 YEARS R/AT NO. 20, 15^TH CROSS KANAKANAGAR, NEAR RAILWAY GATE R.T. NAGAR POST BANGALORE – 560 032.

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…COMPLAINANT

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(BY SRI RAJU S., ADVOCATE)

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AND :

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MR. PRAKASH NADUR, IAS REGISTRAR KARNATAKA VETERINARY ANIMAL AND FISHERIES SCIENCES UNIVERSITY NANDI NAGAR, P.B. NO. 6 BIDAR - 528 401.

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…ACCUSED

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(BY SMT. VAISHALI HEGDE, ADVOCATE)

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THIS CCC IS FILED UNDER SECTIONS 11 AND 12 OF THE CONTEMPT OF COURTS ACT, 1971, PRAYING TO TAKE THE COGNIZANCE AGAINST THE ACCUSED AND PUNISH HIM IN ACCORDANCE WITH LAW IN VIEW OF HIS DELIBERATE DISRESPECT INTENTION SHOWN TOWARDS THE ORDER OF THE LEARNED SINGLE JUDGE DATED 12.10.2023 PASSED IN W.P. NO.18785/2023.

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THESE WRIT APPEAL AND CIVIL CONTEMPT PETITION, COMING ON FOR HEARING, THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:

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NC: 2024:KHC:11018-DB WA No. 76 of 2024 C/W CCC No. 38 of 2024

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JUDGMENT

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Heard learned advocate Smt.Vaishali Hegde for the appellant–Karnataka Veterinary Animal and Fisheries Sciences University and Mr.R.Subramanya with learned advocate Mr.Narasimharaju for the respondent.

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The appellant is original respondent No.1 who has preferred this writ appeal under Section 4 of the Karnataka High Court Act, 1961 seeking to call in question the judgment and order dated 12.10.2023 of learned Single Judge, whereby learned Single Judge allowed the petition directing the respondent to consider the case of the petitioner-respondent No.1 herein for compassionate appointment.

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The facts, inter alia¸ are that the petitioner’s father named Nagegowda was an employee on the post of Assistant Financial Controller, under the appellant-University. He died while in service on 29.08.2019. The petitioner requested for grant of compassionate appointment by making an application on 20.08.2020. The application was made within the period of one year stipulated for the purpose.

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3.1 The application of the petitioner came to be rejected by the University on the ground that the petitioner was not fulfilling the criteria as per Rule 3(2) and Rule 4(1) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 (hereinafter referred to as ‘the Rules’). The order-cumendorsement dated 14.03.2022 rejecting the request of the petitioner came to be previously challenged by the petitioner before this Court in Writ Petition No.8551 of 2022.

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3.2 The ground of challenge was that as per the Notification dated 09.04.2021, whereby the Rules came to be amended, it included in the category of eligible family members for grant of compassionate appointment, married daughter, it was submitted, was also liable to be treated as dependant as per the Rules brought in force. Therefore, the petitioner is entitled to be considered to be given the appointment. The said writ petition was allowed by the order dated 01.06.2023 and the refusal reflected in the endorsement dated 14.03.2022 was set aside. This Court directed the University to consider the case of the petitioner in light of the said Notification dated 09.04.2021.

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3.3 It appears that the University acted pursuant to the said order of this Court in Writ Petition No.8551 of 2022. The University once again passed order-endorsement dated 27.07.2023 rejecting the claim of the petitioner. The University rests on the ground, while declining the case of the petitioner, that the petitioner was married at the time of death of the father.

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3.4 Recounting the relevant dates, the father of the petitioneremployee died on 29.08.2019. At the time of death of the father, the petitioner-daughter was married. The marriage took place on 06.03.2017. Thereafter, however, the divorce petition came to be filed on 30.07.2019, which was M.C No.4179 of 2019. A decree of divorce came to be passed by the Competent Court on 07.02.2020. The death of the father, was as noted earlier on 29.08.2019. The petitioner-daughter made an application for seeking compassionate appointment on 20.08.2020, which was, after the decree of divorce. When the application was made on compassionate appointment, the petitioner was a divorcee daughter.

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3.5 It may be noted that when the employee-father died, the Rules were prevalent. In the said Rules, the definition of ‘Family’ was contained in Rule 2(1)(a)(i),

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“(i) in the case of the deceased male Government Servant, his widow, son, unmarried daughter and widowed daughter who were dependent upon him and were living with him; and

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(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”

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3.5.1 The aforesaid Rules came to be amended by the Karnataka Civil Services (Appointment on Compassionate Ground) (Amended) Rules, 2021. The amended Rules came to be notified by the Notification dated 09.04.2021. In the amended Rules, the definition of ‘family’ in clause 2(b) was substituted and categories of dependants of the deceased Government servant were added to treat them part of the family to be considered for appointment on compassionate basis.

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3.5.2 Clause (b) of Rule 2 as substituted redefining ‘family’ reads as under:

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“(b) “family” for the purpose of these rules:-

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(i) in the case of the deceased male married Government Servant, his widow, son and daughter (unmarried / married / divorced / widowed) who were dependent upon him and were living with him;

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(highlighted here)

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NC: 2024:KHC:11018-DB WA No. 76 of 2024 C/W CCC No. 38 of 2024

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(ii) in the case of the deceased female married Government Servant her son, daughter (unmarried/ married/ divorced/widowed) and widower who were dependent upon her and were living with her;

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(iii) in the case of the deceased male unmarried Government Servant, his brother or sister who were dependent upon him and were living with him;

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(iv) in the case of the deceased female unmarried Government Servant, her brother or sister who were dependent upon her and were living with her; and

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(v) in the case of the deceased married Government Servant whose spouse is also no more and who has minor children, the certified guardian of the minor children who is living with them and takes care of the minor children as per the provisions of relevant law.”

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3.5.3 It would be seen that in the aforesaid amended subclause (i) along with son, unmarried daughter, married daughter and divorced or widowed daughter were inserted and they are treated to be dependant upon the deceased.

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3.5.4 Thus, in the aforesaid amended Rules, in sub-clause (i) and (ii), the daughters whether married or unmarried, divorced or widowed came to be treated as dependant upon the deceased employee and leaving with him or her. The unmarried or divorced

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daughter was also held entitled to be offered compassionate appointment provided, she satisfied the other conditions as may be required. At this stage, it is quite relevant to notice that the exclusion of married daughter from the ambit of the expression ‘family’ in Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the aforementioned 1996 Rules was challenged before this Court as arbitrary and voilative of Article 14 of the Constitution.

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3.6 The challenge was dealt with by this Court in Smt.Bhuvaneshwari V.Puranik vs. The State of Karnataka, Department of Personnel and Administrative Reforms and Others, (ILR 2021 KAR 5256) and it was held that keeping the married daughter out of the concept of family was discriminatory. It was held that for the purpose of compassionate appointment, no distinction could be made between married and unmarried daughter, since both could be said to be a part of the family. The Court held the unmarried daughter to be entitled to the compassionate benefit, by observing that the marriage does not terminate relationship of a daughter with the parents.

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3.6.1 On the basis of the aforesaid decision in Smt.Bhuvaneshwari ( supra) , the Rules came to be amended and

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married daughter as well as divorced daughter came to be included within the concept of ‘family’. As stated above, the Rules came to be notified under the Notification dated 09.04.2021.

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3.7 It is to be recollected that the rejection of the case of the petitioner for compassionate appointment was challenged before this Court in Writ Petition No.8551 of 2022. The ground on which the authorities rested, the rejection of the petitioner’s case was that the petitioner did not fulfill the criteria as per Rule 3(2) and Rule 4(1) of the Rules. Setting aside the said decision of rejection, this Court directed the respondent-authority to reconsider the application of the petitioner in light of the Notification dated 09.04.2021. The said decision and the direction became final and holds the field.

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3.8 Thus, in the earlier decision, the Court already required the authorities to consider and treat the case of the petitioner under the amended Rules notified by the Notification dated 09.04.2021. It was the said amended Rules which were in force when the application came to be made by the petitioner-daughter, who was a divorcee at the time of seeking the benefit of compassionate appointment.

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3.9 Learned Single Judge relied on decision of the Supreme Court in N.C.Santhosh vs. State of Karnataka and others, [(2020) 7 SCC 617] , which was also a case of compassionate appointment under the unamended Rules. A minor dependant of the deceased employee was required to apply within a period of one year from the date of death of the employee under the amended Rules. It was also the requirement that he should have attained the age of eighteen years on the date of making of application before the amendment of the Rules. The unamended provisions was that the minor dependant was entitled to apply till one year from the date of attaining majority. The Supreme Court held that norms prevailing on the date of consideration of the application would be the basis for considering the claim of the compassionate appointment.

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Learned advocate for the appellant relied on decision of the Supreme Court in Fertilizers and Chemicals Travancore Limited and others vs. Anusree K.B, [2022 LiveLaw (SC) 819] as well as in State of West Bengal vs. Debabrata Tiwari and others, [2023 LiveLaw (SC) 175] to submit that the compassionate appointment was an exception to the general rule of an appointment in public

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services and that there is no vested to right to such appointment. Another decision, also of the Supreme Court in Secretary to Government, Department of Education (Primary ) and others

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vs. Bheemesh Alias Bheemappa, 2021 (20) SCC 707 was pressed into service to assert that Rules prevailing on the date of death of deceased government employee has to be taken into account.

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4.1 On the other hand, learned advocate for the respondent supported the decision of learned Single Judge by relying on the aspect that in the earlier decision, this Court has already directed the appellant-University to consider the case of the petitioner in accordance with the amended Rules.

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The case of the petitioner that the Rules prevalent at the time of making of the application would have to be applied for the purpose of determining the entitlement of the petitioner to be appointed on compassionate basis, could be countenanced in the facts and circumstances of the present case. Firstly because in

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Writ Petition No.8551 of 2022, this Court in terms directed the authorities to treat the petitioner’s case under the amended Rules as per the Notification dated 09.04.2021. The earlier rejection set

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NC: 2024:KHC:11018-DB WA No. 76 of 2024 C/W CCC No. 38 of 2024

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aside in the said petition was based on the unamended Rules. Thus, it was indeed came as amended from the Court to apply the amended Rules. The appellant misdirected itself in relying on Rule 7 of the Rules to justify its decision to apply the earlier Rules.

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5.1 When this Court has set aside the decision founded on the criteria on earlier unamended Rules and when the said decision holds the field, the same ground and the Rules could not have been resorted to again to reject the case of the petitioner. The discrimination between married daughter on one hand and unmarried or divorced daughter on the other hand has been held to be arbitrary and such criteria of married daughter was not accepted as valid classification for the purpose of offering compassionate appointment in Smt.Bhuvaneshwari ( supra) .

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5.2 The decision in Bheemesh (supra) would stand true on its

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own facts. It observed that the static factor will have to be applied. In the facts of the present case, the static factor emerges in the amended Rules and in particular, the direction of this Court in Writ Petition No.8551 of 2022 to apply the Notification dated 09.04.2021. The Rules in vogue at the time of making application

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of the petitioner have been rightly applied in the given facts and circumstances of the case.

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5.3. The contention that consideration of the case of the petitioner as per the amended Rules would amount to applying the Rules retrospectively, is of no substance in law and it runs contrary to the law laid down by the Supreme Court in Punjab University vs. Subash Chander and another, (AIR 1984 SC 1415). It was a case regarding applying the Punjab University Regulation in relation to percentage of marks as grace marks to the candidate appearing for the University examination in the year 1965. The candidate had joined the MBBS course in 1965 to appear for final MBBS examination in the year 1974. In the meantime, new Regulations of 1970 came into force which amended the Rule by reducing the percentage of grace marks for MBBS candidates. It was held that the question of actually applying the Regulation, the one which was in force at that time, would become applicable and not the unamended Regulation when the candidate had joined the course. It was held that giving of grace marks to the candidate would be as per 1970 Regulation.

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5.4 The above principle would apply to the facts of the present case analogically. It could not be said that applying the amended Rule would amount to retrospective application. The Supreme Court in Punjab University ( supra) observed that by virtue of amended Regulation as regards grace marks was to be applied and the declaration that has had failed by applying the amended grace marks was not invalid. It was observed that “there was no element of retrospectively in the change brought about by the amendment. It cannot be said to be retrospective in operation merely because though introduced in 1970, it was applied to the candidate, who appeared for final examination in 1974, after he had joined the course earlier in 1965”.

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In the present case, when the petitioner applied for the post on compassionate basis, she was not married and she had taken divorce. She had acquired eligibility to seek the appointment under the Rules which were amended and notified as per the Notification dated 09.04.2021. This Court had taken into account of the facts of the case while deciding the earlier Writ Petition No.8551 of 2022 and issued the clear direction while declining to accept the applicability of the unamended Rules.

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NC: 2024:KHC:11018-DB WA No. 76 of 2024 C/W CCC No. 38 of 2024

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For all the foregoing reasons, no error could be booked in the judgment and order of learned Single Judge when he was required the authorities to consider the case of the petitioner on the basis of the Notification dated 09.04.2021 for giving the petitioner compassionate appointment. The challenge fails. The present appeal is meritless and it stands dismissed.

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In view of dismissal of the appeal, the contempt petition as well as other interlocutory applications would not survive and they stand accordingly disposed of.

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Sd/CHIEF JUSTICE

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Sd/JUDGE

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AHB List No.: 1 Sl No.: 22

Karnataka Veterinary v. Ms Lavanya N.G.

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Karnataka Veterinary v. Ms Lavanya N.G.

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