Allowed

Smt a R Bhanumathi v. the State of Karnataka

Karnataka HC23 Aug 2024WP/15961/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the Karnataka State Administrative Tribunal's rejection of a compassionate appointment application. The court distinguished a Supreme Court decision regarding inserting words as inapplicable to the current substitution-based amendment, holding the amendment had retrospective effect to include married daughters as dependents.

What did the court decide?

Writ petition allowed; impugned Tribunal order and relevant endorsements quashed; respondents directed to consider application under 2021 amended rules.

Smt a R Bhanumathi Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC:35234-DB WP No. 15961 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF AUGUST, 2024 PRESENT

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THE HON'BLE MR JUSTICE S.G.PANDIT

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AND

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THE HON'BLE MR JUSTICE C.M. POONACHA WRIT PETITION NO.15961 OF 2022 (S-KSAT)

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BETWEEN:

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SMT. A R BHANUMATHI D/O LATE RAMESH RAO AGED ABOUT 32 YEARS R/AT BEHIND GNANABHARATHI SCHOOL DHAVALAGIRI LAYOUT, 1^ST CROSS 1^ST STAGE, VALALKERE ROAD, CHITRDURGA-577501.

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…PETITIONER

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(BY SRI. J M ANIL KUMAR, ADV.)

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AND:

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Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF HEALTH AND FAMILY WELFARE SERVICES M.S. BUILDING BENGALURU- 560 001.

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THE DIRECTOR DEPARTMENT OF HEALTH AND FAMILY WELFARE SERVICES AROGYA SOUDHA MAGADI ROAD BENGALURU-560 023.

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THE DISTRICT HEALTH OFFICER HEALTH AND FAMILY WELFARE

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SERVICES DEPARTMENT CHITRADURGA-577501.

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…RESPONDENTS

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(BY SRI. C.N. MAHADESHWARAN, AGA FOR R1 TO R3)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS; ISSUE A WRIT CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING THE ORDER DATED 18.07.2022 PASSED BY THE KSAT BENGALURU IN A.NO-1482/2022 (ANNEXURE-A) BY ALLOWING THE APPLICATION FILED BY THE PETITIONER AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.G.PANDIT AND HON'BLE MR JUSTICE C.M. POONACHA

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE S.G.PANDIT)

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Petitioner is before this Court under Article 226 of

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the Constitution of India questioning the correctness and legality of order dated 18.07.2022 in Application No.1482/2022 passed by the Karnataka State Administrative Tribunal, Bengaluru (for short, ‘the Tribunal’) rejecting the petitioner’s application challenging endorsement dated 01.10.2021 (Annexure-A8) and endorsement dated 11.02.2022 (Annexure-A9) by which,

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petitioner’s request for consideration of her case for appointment on compassionate ground was rejected.

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Brief facts of the case are that, petitioner’s father late Sri.Ramesh Rao was working as Typist in the third respondent’s office and while in service he died on 10.06.2017. On his death, petitioner submitted an application on 26.10.2017 requesting appointment on compassionate ground. The third respondent by endorsement dated 23.12.2017 rejected compassionate ground appointment on the ground that since the petitioner is married daughter, there is no provision to consider her request. The said endorsement was the subject matter of Application No.7650/2018 before the Tribunal. The Tribunal by order dated 22.11.2018, rejected petitioner’s application. Against the said rejection order, petitioner was before this Court in W.P.No.3158/2019. This Court by order dated 02.06.2021 set aside the order of the Tribunal as well as endorsement rejecting petitioner’s request for compassionate appointment and

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directed the respondents herein to consider the claim of the petitioner on merits. Respondents again under Endorsement dated 01.10.2021 rejected petitioner’s request on the ground that as on the date of death of petitioner’s father i.e., 10.06.2017, there was no provision to consider the case of the married daughters for compassionate ground appointment under the Karnataka Civil Services (Appointment on Compassionate Ground) Rules, 1996 (for short, ‘1996 Rules’). On 11.02.2022, corrigendum Endorsement was issued stating that since petitioner was married prior to submission of application for compassionate appointment, there is no provision to consider her case for compassionate appointment. Challenging the said endorsements, petitioner was before the Tribunal in Application No.1482/2022 contending that in terms of the amended provisions under Notification dated 09.04.2021 petitioner was entitled for consideration of her application for compassionate appointment. The Tribunal under impugned order dated 18.07.2022 rejected petitioner’s application on the ground that though there

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was amendment to the KCS (CGA)(Amendment) Rules, 2021 (for short, ‘2021 Amended Rules’) to include married daughter within the definition of dependent of deceased Government servant, said amendment is having only prospective effect and not retrospective effect. Questioning the said order of the Tribunal and endorsement, rejecting petitioner’s case for compassionate ground appointment, petitioner is before this Court.

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Heard the learned counsel Sri.J.M.Anil Kumar for petitioner and Sri.C.N.Mahadeshwaran, learned Additional Government Advocate for respondents. Perused the material on record.

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Learned counsel Sri.J.M.Anil Kumar would submit that father of the petitioner was working as Typist in third respondent’s office who died in harness on 10.06.2017. Immediately thereafter in terms of 1996 Rules, petitioner submitted application requesting to consider her case for compassionate ground appointment. Her request was rejected by Endorsement dated

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23.12.2017 which was the subject matter of Application No.7650/2018 before the Tribunal and W.P.No.3158/2019 before this Court. This Court in its order dated 02.06.2021 directed the respondents to consider the petitioner’s claim on merits. But again, respondent-Authorities instead of considering petitioner’s case under 2021 Amended Rules under which 1996 Rules was amended by substitution to expand the definition of dependent of a deceased Government servant to include married/divorced/widowed daughter who were dependent upon deceased Government Servant. Learned counsel would submit that as the amendment is by way of substitution, amendment would be retrospective and the petitioner would be entitled for the benefit of Amended 2021 Rules. In that regard, learned counsel for the petitioner places reliance on the decision of the Co-ordinate bench of this Court in the case of SMT.LATHA.H.R., VS. THE STATE OF KARNATAKA AND OTHERS¹ . Referring to said decision, learned counsel Sri.J.M.Anil Kumar would submit that the Co-ordinate

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1 W.P.No.20216/2024 dated 31.07.2024

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Bench of this Court has held that 2021 Amendment to 1996 Rules has retrospective effect, since the amendment is by way of substitution. Thus, learned counsel would pray for allowing the writ petition in terms of the above stated order of the Co-ordinate Bench.

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Per contra, Sri.C.N.Mahadeshwaran, learned Additional Government Advocate would support the order passed by Tribunal and further submits that compassionate ground appointment cannot be claimed as a matter of right. Further, learned Additional Government Advocate would submit that dependents of deceased Government servant would get right to seek compassionate ground appointment only in terms of Rules, that too, Rules existing as on the date of death of the Government servant. It is submitted that in the instant case, Government servant died on 10.06.2017 and as on the date of death of Government servant, there was no provision to consider the application of a married daughter, claiming to be dependent of the deceased

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Government servant. As there was no provision as on the date of death of Government servant to consider the case of the married dependent daughters, he submits that Tribunal is justified in rejecting the application of the petitioner. Learned Additional Government Advocate referring to the decision of the Hon'ble Apex Court in the

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case of SECRETARY TO GOVERNMENT DEPARTMENT OF EDUCATION (PRIMARY) AND OTHERS VS. BHEEMESH

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ALIAS BHEEMAPPA² would submit that the Hon'ble Apex Court was considering amendment to 1996 Rules under Notification dated 11.07.2012 and submits that Hon'ble Apex Court has come to the conclusion that merely because the application for appointment was taken up for consideration after the issue of amendment, respondents could not have sought the benefit of the amendment. Thus, placing reliance on the above stated decision of the Hon'ble Apex Court, learned Additional Government Advocate prays for dismissal of the writ petition.

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2 (2021) 20 SCC 707

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6. Having heard the learned counsel appearing for

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the parties and on perusal of the writ petition papers, the only point that would arise for our consideration is,

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“Whether the Tribunal is justified in rejecting petitioner’s application challenging rejection of her request for compassionate appointment under the Endorsement dated 11.02.2022?”

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Answer to the above would be in the Negative and the Tribunal is not justified in rejecting petitioner’s application.

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It is true that the dependents of the deceased Government servant cannot claim compassionate appointment as a matter of right. But, the dependents of Government servant could claim compassionate appointment under the existing Scheme or existing Rules relating to compassionate appointment. In the State of Karnataka, compassionate appointment is governed by 1996 Rules. Prior to 2021, under 1996 Rules there was no provision for consideration of the application of dependent married daughter of a deceased Government servant. This

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Court in the case of SMT.BHUVANESHWARI V.

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PURANIK VS. STATE OF KARNATAKA AND OTHERS³ had held that married daughters not being entitled for compassionate appointment to be unconstitutional. Thereafter, the State Government under Notification dated 09.04.2021 brought amendment to 1996 Rules to expand the definition of dependent of a deceased Government servant to include daughter (unmarried/married/divorced/ widowed) who were depending upon him. The amendment brought to Sub-rule (1) of Rule 2 of 1996 rules reads as follows:

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“ 2. Amendment of Rule 2. – In the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 (hereinafter referred to as the said rules), in Rule 2, in sub-rule (1),

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(1) for clause (a), the following shall be substituted, namely:-

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"(a) "dependent of a deceased Government Servant" means a member of the family of the deceased Government Servant who was living

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3 ILR 2021 KAR 5256

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with and dependent on the deceased Government Servant and who fulfils the conditions specified in the explanation to subrule (1) of rule 4."

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(2) for clause (b), the following shall be substituted, namely:-

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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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(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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A reading of the above amendment, it is clear that

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amendment to 1996 Rules is by way of substitution.

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Learned Additional Government Advocate placed reliance on the decision of BHEEMESH (supra) to contend that the application for compassionate appointment shall be considered in terms of the Rules that existed as on the date of death of the Government servant and further submitted that in the instant case there was no provision to consider the request of married daughter for compassionate ground appointment as on the date of death of Government servant. The Hon'ble Apex Court in

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the above decision i.e., BHEEMESH (supra) was considering the amendment to 1996 Rules dated 11.07.2012 by which, an unmarried brother of deceased female unmarried Government servant was included within the definition of dependent of deceased Government servant. The amendment brought under Notification dated 11.07.2012 was by way of insertion of additional words and the amendment was not by way of substitution. Where amendment to a Rule or Act is by way of substitution, the amended provision is to be read as if it was there in the statute book from the day, the said Rule

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or Act came into force. Since in BHEEMESH (supra), the Hon'ble Apex Court was considering amendment to 1996 Rules by way of insertion and in that circumstance, it held that the amendment would not be applicable merely because the application for appointment was taken up for consideration after the issuance of the amendment. The ratio laid down by the Hon'ble Apex Court in BHEEMESH (supra) would have no application to the facts of the

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NC: 2024:KHC:35234-DB WP No. 15961 of 2022

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present case since the petitioner is seeking benefit of 2021 Amended Rules which is by way of substitution.

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A Co-ordinate Bench of this Court in SMT.LATHA.H.R., (supra) was considering identical question and at paragraphs 6 and 7, it is held as follows:

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“6. Having considered the contentions advanced by the learned counsel appearing for the parties, we are of the opinion that the finding of the Tribunal that the amendment had only prospective effect and therefore the application cannot be considered, cannot be accepted. The petitioner's application has been rejected only on the ground that she is a married daughter of the deceased government servant. It is not disputed that the provisions of the unamended Rules to the effect only an unmarried daughter could make an application stood struck down as unconstitutional and the said judgment has become final. Thereafter, the Rules have also been amended substituting the words "unmarried daughter" with the word "daughter".

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7. In the above view of the matter and in view of the fact of amendment made to the Rules by substitution, we are of the opinion that the

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rejection of the application for appointment made by the petitioner on the sole ground that she is a married daughter cannot be accepted.”

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In the light of the above, we pass the following:

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ORDER

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i) Writ petition is allowed.

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ii) Order dated 18.07.2022 in Application No.1482/2022 passed by the Tribunal is set aside. Consequently, Application No.1482/2022 filed before the Tribunal is allowed.

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iii) Endorsement bearing No.CGA(1)21/201819 dated 01.10.2021 (Annexure-A8) and Endorsement bearing No.CGA(1)21/201819 dated 11.02.2022 (Annexure-A9) are quashed.

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iv) Respondent Nos.1 to 3 are directed to consider the application of the petitioner

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dated 26.10.2017 for appointment on compassionate ground in terms of 1996 Rules, particularly taking note of the 2021 Amendment under Notification dated 09.04.2021 in relation to the definition of “Dependent of a deceased Government Servant” and pass appropriate orders subject to other provisions of 1996 Rules.

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SD/(S.G.PANDIT) JUDGE

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SD/(C.M. POONACHA) JUDGE

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List No.: 2 Sl No.: 17

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NC CT:bms

Smt a R Bhanumathi v. the State of Karnataka

Case brief

What is this about?

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Smt a R Bhanumathi v. the State of Karnataka

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