Kumari Shilpa D/O Dundayya Kulkarni Vs State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT ISSUED BY THE RESPONDENT NO.2 DATED 14.09.2018 BEARING NO.LCA II 367/2017 VIDE ANNEXURE-D AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ

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ORAL ORDER

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The petitioner has challenged an endorsement bearing No.LCA II 367/2017 dated 14.09.2018 issued by respondent No.2 rejecting her claim for appointment on compassionate ground. The petitioner has sought for a direction to respondent No.2 to consider her representation dated 09.08.2017 and provide employment to her on compassionate ground.

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The petitioner contends that her father was appointed as a process server in the year 1985 at the Senior Civil Judge, Saundatti, Belagavi. He left home on 11.02.2008 and thereafter did not return. The mother of the petitioner reported the missing of her husband on 04.04.2008 before Saundatti police and a case in Crime No.106/2008 was registered. A public notice was caused in Vijaya Karnataka, Kannada daily newspaper on 27.06.2009. The petitioner

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contends that all efforts to trace her father proved futile. Since the whereabouts of her father was not known for more than seven years, the petitioner and her mother filed O.S.No.121/2015 before the Principal Civil Judge and JMFC, Saundatti. The said suit was decreed on 07.07.2017 and it was declared that the father of the petitioner was presumed to be dead under Section 108 of the Indian Evidence Act, 1872. After the said judgment and decree, the petitioner submitted a request on 09.08.2017 to respondent No.3 for appointment on compassionate ground. The application was forwarded to respondent No.2. The respondent No.2 rejected the representation by the impugned endorsement dated 14.09.2018 on the ground that the declaration from the Civil Court was not obtained before the employee had attained the age of superannuation. The rejection was communicated to the petitioner by the Senior Civil Judge, Saundatti on 24.09.2018.

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The petitioner is therefore, before this Court challenging the endorsement and also sought for a direction to respondent No.2 to grant appointment on compassionate ground.

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The learned counsel for the petitioner contended that the father of the petitioner went missing on 11.02.2008 and a case in Crime No.106/2018 was registered on 04.04.2008. He contends that the petitioner had to compulsorily wait for the statutory period prescribed under Section 108 of the Indian Evidence Act for a declaration that her father was presumed to be dead. He contends that in the meanwhile, the father of the petitioner had attained the age of superannuation. This, he contends cannot be a ground to reject the claim of the petitioner, as the petitioner was bound to wait for the statutory period of seven years. He contends that the decree of suit in O.S.No.121/2015 reverts back to the date of suit, meaning thereby, that the father of the petitioner was declared to be dead as on the date of filing of the suit in O.S.No.121/2015. Thus, he contends that respondents were bound to consider the case of the petitioner for grant of appointment on compassionate ground.

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(i) The petition is opposed by respondent Nos.2 and 3, who contended that the appointment on compassionate ground is governed by the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996

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(henceforth referred to as 'Rules, 1996'). It is stated that the Rules, 1996 are silent regarding providing appointment on compassionate ground to the dependant of missing Government servant, even if a decree is obtained from the Civil Court declaring that the Government servant is presumed to be dead. It is contended that clarification was sought from the State Government, which in terms of a communication dated 06.05.2016, had clarified that the dependent of such Government servant had to fulfill the following conditions to obtain appointment on compassionate ground:-

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(a) If the Government servant is missing for 7 years, the dependant has to obtain decree from the competent authority declaring the missing of the said Government servant as Civil death.

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(b) The decree has to be obtained from the Court within the date of superannuation of the Government servant.

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(c) The Applicant has to submit the Application seeking appointment on Compassionate Grounds within one year from the date of decree.

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(d) The applicant has to fulfill all the other conditions prescribed in the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996.

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(ii) It is contended that father of the petitioner attained the age of superannuation on 31.05.2014, while decree passed in O.S.No.121/2015 was on 07.07.2017. Therefore, as per condition stipulated by the State Government mentioned above, the decree must have been obtained prior to the date of superannuation of her father. It is contended that since the decree was later, the petitioner is not entitled for appointment on compassionate ground. It is therefore, contended that respondent No.2 taking note of the communication addressed by the State Government, had rejected the request of the petitioner for appointment on compassionate ground. It is also contended that the appointment on compassionate ground cannot be claimed as a matter of right but shall be given after being satisfied that the dependant of a Government servant is in need of assistance to tide over the crisis due to the loss of bread earner in the family. Therefore, it is contended that the petitioner is not entitled to the benefit of appointment on compassionate ground.

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The learned counsel for respondent Nos.2 and 3 reiterated the above contentions and submitted that there is no provision in the Rules, 1996 for providing appointment on compassionate ground. Even otherwise, he contends that the Hon'ble Supreme Court in the case of Central Coalfields

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Limited and others vs. Parden Oraon [(2021) 16 SCC 384] has held that if there is a long lapse of time from the date of person going missing and the filing of an application for appointment on compassionate grounds, in such case, an applicant is not entitled for compassionate appointment as the persons are deemed to have overcome the crisis. He therefore, contends that in the instant case too, the father of the petitioner went missing in the year 2008 and the request for appointment on compassionate ground was made on 09.08.2017. Therefore, he contends that the judgment of the Hon'ble Supreme Court, referred above, would squarely apply to the facts of this case.

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I have considered the submissions of the learned

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counsel for the petitioner as well as the learned counsel for respondent Nos.2 and 3.

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As rightly contended by the learned counsel for respondent Nos.2 and 3, there is no provision under the Rules, 1996 for providing appointment on compassionate grounds to the dependant of a Government servant, who has gone missing. However, it is to be noted that the Government servant in question had left behind his wife and an unmarried daughter namely, the petitioner herein. The petitioner and her mother after lodging a complaint on 04.04.2008, had followed it up by publication in the newspaper on 27.06.2009 and thereafter, filed a suit in O.S.No.121/2015 after statutory period of seven years had lapsed, during which time, they could not trace the missing Government servant. The suit was decreed only on 07.07.2017 i.e., long after the father of the petitioner had attained the age of superannuation. Once the suit was decreed, it would revert to the date of the suit and therefore, for all practical purposes, it is to be deemed that the father of the petitioner was presumed to be dead in the year 2015. This writ petition was filed in the year 2019 and the petitioner was then 30 years old. It is also stated that the petitioner is not married. There is no material placed by respondent Nos.2 and 3 to justify that the family of the

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petitioner was affluent or was able to take care of their needs and necessities. It can therefore, be said that the family of the petitioner was left destitute by her father. Therefore, notwithstanding that there is no provision in the Rules, 1996, since the Court of competent jurisdiction had declared that the father of the petitioner is dead, the petitioner is entitled to the benefit of the appointment on compassionate ground.

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It is true that the appointment on compassionate

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grounds is not a matter of course or a matter of right. However, only consideration that should weigh in the minds of respondent Nos.2 and 3 was whether the family was left destitute by the Government servant, who went missing. Respondent Nos.2 and 3 instead of considering the case of the petitioner from this perspective, rejected the request of the petitioner on the ground that the father of the petitioner had attained the age of superannuation much prior to the decree in O.S.No.121/2015, which is not only perverse but does not stand to reason. In view of the aforesaid, it is inevitable that respondent Nos.2 and 3 are bound to consider the case of the petitioner favourably for granting appointment on compassionate ground.

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Hence, the following

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ORDER

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(i) This writ petition is allowed .

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(ii) The impugned endorsement bearing No.LCA II 367/2017 dated 14.09.2018 issued by respondent No.2 is quashed.

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(iii) Respondent Nos.2 and 3 are directed to re-consider the case of the petitioner and also assess the financial stringencies that the family faced as on the date of the Government servant going missing and

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as on the date when the suit filed in O.S.No.121/2015 was decreed. All contentions are kept open.

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(iv) This shall be complied within a period of three months from the date of receipt of a certified copy of this Order.

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Sd/(R.NATARAJ) JUDGE

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PMR List No.: 19 Sl No.: 1

Kumari Shilpa D/O Dundayya Kulkarni v. State of Karnataka

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Kumari Shilpa D/O Dundayya Kulkarni v. State of Karnataka

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