Allowed

Sri Bharath Kumar H K v. the Directorate of Administration

Karnataka HC13 Feb 2024WP/387/2024

Case brief

AI extract

What is this about?

A writ petition challenging an endorsement refusing compassionate employment to the petitioner as a son born through a second wife. The court quashed the endorsement, relying on a Division Bench judgment applying the Apex Court's Tripathi ruling, and directed reconsideration within two months.

What did the court decide?

Impugned endorsement quashed; respondent No.3 directed to consider petitioner's compassionate employment representation per Division Bench judgment within two months.

Sri Bharath Kumar H K Vs the Directorate… — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC:6184 WP No. 387 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 387 OF 2024 (S-RES)

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BETWEEN:

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SRI. BHARATH KUMAR H.K., S/O LATE KADURAPPA, AGED ABOUT 26 YEARS, R/AT CHURCH ROAD, 2ND CROSS, HIRIYUR, CHITRADURGA - 577 598.

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…PETITIONER

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(BY SRI. PRITHVEESH M.K., ADVOCATE)

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AND:

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Digitally signed by V KRISHNA Location: HIGH COURT OF KARNATAKA

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THE DIRECTORATE OF ADMINISTRATION, REPRESENTED BY ITS DIRECTOR, 9TH AND 10TH FLOOR, VISHVESHWARAIAH TOWER,

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DR.B.R. AMBEDKAR VEEDHI, BANGALORE - 560 001.

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THE PROJECT DIRECTOR, DISTRICT URBAN DEVELOPMENT CELL, DISTRICT AYUSH OFFICE, STADIUM ROAD, CHITRADURGA - 577 501.

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THE COMMISSIONER, CITY MUNICIPAL COUNCIL, AMBEDKAR CIRCLE,

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2 - NC: 2024:KHC:6184 WP No. 387 of 2024

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BD ROAD, HIRIYUR, CHITRADURGA - 577 501.

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…RESPONDENTS

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(BY SRI. B. RAVINDRANATH, AGA FOR R1 AND R2; SRI. S. MAHESH, ADVOCATE FOR R3)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) CALL FOR RECORDS PERTAINING TO THE IMPUGNED ENDORSEMENT DATED 06/09/2023 BEARING NO. NASAHI.SIBBANDI.CR02/2023-24 ISSUED BY THE R3 (ANNEXURE-M) AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned petition is filed assailing the impugned endorsement dated 06.09.2023, issued by respondent No.3 as per Annexure-M, thereby declining to consider the petitioner's representation for employment on compassionate ground.

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The petitioner claimed that he was born in the wedlock of one late Kadurappa and Smt.Manjula M and he belongs to the schedule caste community. The petitioner's father was working as a Fitter in Hiriyur City Municipal

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NC: 2024:KHC:6184 WP No. 387 of 2024

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Council, Chitradurga District. The petitioner claimed that his father died while in service on 27.11.2019. The petitioner's grievance is that his representation was rejected by respondent No.3 on the ground that he is a son born through a second wife and therefore children born out of a void marriage are not entitled to seek employment on compassionate grounds, and accordingly, an endorsement is issued as per Annexure-M.

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Heard learned counsel for the petitioner, learned AGA and learned counsel for respondent No.3. Perused the impugned endorsement. I have also given my anxious consideration to the judgment rendered by the Division Bench in W.P.No.202103/2022.

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The Division Bench of this Court, having taken cognizance of the law laid down by the Apex Court in the case of Union of India and another vs. V.R.Tripathi reported in (2019) 14 SCC 646:AIR 2019 SC 666 , held that there is no bar for a son born through second wife to seek employment on compassionate grounds. Paragraphs

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NC: 2024:KHC:6184 WP No. 387 of 2024

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No.5 and 6 of the Division Bench judgment would be relevant and the same is culled out as under:

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5. I have perused the judgment of the Apex Court. Para Nos.14 and 15, which reads as hereunder:

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14. The issue essentially is whether it is open to an employer, who is amenable to Part III of the Constitution to deny the benefit of compassionate appointment which is available to other legitimate children. Undoubtedly, while designing a policy of compassionate appointment, the State can prescribe the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires.

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15. Even if the narrow classification test is adopted, the circular of the Railway Board creates

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5 - NC: 2024:KHC:6184 WP No. 387 of 2024

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two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved. The learned Additional Solicitor General has urged that it is open to the State, as part of its policy of discouraging bigamy to restrict the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination.

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NC: 2024:KHC:6184 WP No. 387 of 2024

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6. The Tribunal has noticed and applied the law of the Apex Court. It would be too technical an interpretation to state that the judgment of the Apex Court is not to be applied insofar as old cases, insofar as the salutary principle laid down by the Apex Court as noticed above. However taking note of the said judgment of the Apex Court, Government has issued a circular on 30.04.2022 whereby the earlier circular of 27.08.2015 has been withdrawn. It is submitted by counsel for the applicant that in the light of the withdrawal of the earlier notification, the disqualification insofar as children of second marriage are concerned is taken away. Taking note of such stand and also the latest Government Circular it would be appropriate that the stand of the State must be inconsonance with the spirit of the judgment of the Apex Court and if that were to be so, benefit of the Circular of 30.04.2022 which merely records the principle laid down by the Apex Court is also to be extended to the present case on hand and in the light of the relief already been granted by the Tribunal, we refrain from interfering with such order in exercise of limited jurisdiction available in the matter. Accordingly, petition is rejected."

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If the impugned endorsement is examined in

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the light of principles laid down by the Division Bench of

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7 - NC: 2024:KHC:6184 WP No. 387 of 2024

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this Court, this Court is of the view that the impugned endorsement issued by respondent No.3 as per AnnexureM, which is contrary to the law laid down by the Division Bench, is not sustainable and the same is liable to be quashed. Respondent No.3 erred in rejecting the representation on the ground that the petitioner, being a child born through second wife, is not entitled to seek employment on compassionate grounds. The said endorsement is admittedly contrary to the dictum that is culled out supra and the same is liable to be quashed. Hence, I proceed to pass the following:

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ORDER

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i. The writ petition is allowed;

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ii. The impugned endorsement issued by respondent No.3 as per Annexure-M is hereby quashed;

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iii. Respondent No.3 without getting influenced by the communication issued by respondent No.2 dated 31.07.2023 shall consider the petitioner's representation in

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8 - NC: 2024:KHC:6184 WP No. 387 of 2024

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the light of judgment rendered by the Division Bench taking cognizance of the law laid down by the Apex Court in Tripathi's case;

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iv. Respondent No.3 is hereby directed to consider the representation in accordance with law within an outer limit of two months from the date of receipt of certified copy of this order.

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Sd/JUDGE

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HDK List No.: 1 Sl No.: 10 CT:SNN

Sri Bharath Kumar H K v. the Directorate of Administration

Case brief

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Sri Bharath Kumar H K v. the Directorate of Administration

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