Karnataka High Court
The Commissioner vs The State Of Karnataka on 31 July, 2024
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NC: 2024:KHC:30228-DB
WA No. 703 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT APPEAL NO. 703 OF 2023 (S-RES)
BETWEEN:
THE COMMISSIONER
MANGALURU MAHANAGAR PALIKE,
LALBAGH, P.O NO. 756
MANGALURU,
DAKSHINA KANNADA-575 003
...APPELLANT
(BY SRI. NITISH K.N, ADVOCATE FOR
SIR. K.V NARASIMHAM, ADVOCATE)
AND:
Digitally signed by
MAYAGAIAH 1. THE STATE OF KARNATAKA
VINUTHA
URBAN DEVELOPMENT DEPARTMENT
Location: HIGH
COURT OF VIDHANA SOUDHA,
KARNATAKA
BENGALURU - 560 001
REP BY ITS PRINCIPAL SECRETARY.
2. KAUSHIK K
S/O LATE DEVADAS K
AGED ABOUT 32 YEARS,
R/AT NO. III-23A, N.I.TK. CAMPUS,
SRINIVASA NAGAR, SURATKAL,
MANGALURU TALUK - 575025
...RESPONDENTS
(BY SRI. B.RAVINDRANATH, AGA FOR R1;
SRI. S.RAJESHEKAR, ADVOCATE FOR R2)
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NC: 2024:KHC:30228-DB
WA No. 703 of 2023
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO ALLOW THIS APPEAL AND SET
ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE
IN THE WP No-18925/2021 (S-RES) DATED 28.03.2023 AND
ETC.
THIS WRIT APPEAL, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO
and
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE V KAMESWAR RAO) This appeal has been filed by the appellant challenging the order dated 28.03.2023 passed in W.P.No.18925/2021, whereby the learned Single Judge has disposed of the writ petition filed by respondent No.2 herein by stating as under:
"ORDER
i) Writ Petition is allowed in part;
ii) Endorsement dated 28.03.2018 passed by the 2 nd respondent is quashed and 2nd respondent is directed to re-consider the issue afresh in the light of the order passed by this Court in the aforementioned writ petition and pass appropriate orders within an outer limit of eight weeks from the date of receipt of certified coy of this order."
2. The case of respondent No.2 before the learned Single Judge was by challenging the endorsement dated -3- NC: 2024:KHC:30228-DB WA No. 703 of 2023 28.03.2018 of the appellant herein, whereby the appellant has rejected the application filed by respondent No.2 herein for a compassionate appointment on the death of his father on 20.06.2008. The said endorsement reads as under:
"EST(1)/C.R.45/2017-18, Dated:28-03-2018.
ENDORSEMENT Topic: Shri Kaushik K. Late Son of Devdas K. Appointment on compassionate basis. Reference: 1. Kaushik K. Late Son of Devdas K. Date of his application: 20-10-2008.
2. Date of entry of this office: 31-01-2009.
3. Letter from B.A. Mohiuddin Bava, Hon'ble Karnataka Vidhan Sabha Member.
********** Related to the above matter, Honorable Member of Karnataka Vidhan Sabha of reference (3), Mangaluru City North Assembly Constituency, Mr. Devdas K. who was a resident of Kavur in his letter. He died on 20-06- 2008 while serving in the Mangalore Municipal Corporation and his son Mr. Kaushik has filed an application requesting that his father's job be given to him on the basis of compassion.
Applicant's application has been considered on a humanitarian basis and requested to facilitate the livelihood of the poor family by issuing an appointment order for the post of Second Grade Assistant on compassionate grounds.
Shri Kaushik K. had made an application seeking appointment on compassionate grounds as per reference No.1. The said application ought to have been filed by him within 20/6/2009. Since, the applicant did not complete 18 years within one year from the date of death of his father, an endorsement had been issued as per reference No.2 under Rule 5(1) of Karnataka Civil Service (Compassionate Recruitment) 5(1) rules.-4-
NC: 2024:KHC:30228-DB WA No. 703 of 2023 However, now, the mother of Mr. Kaushik's has submitted an application stating that he has completed his education and has attached his bio-data and has requested to be appointed on compassionate grounds. As such, it is hereby informed that Applicant's request is not permissible in law and the same cannot be considered.
Commissioner, Mangalore Municipal Corporation. To, Premalata, Late Wife of Devdas K., 3-23A, N.I.T.K. Campus, Srinivasa Nagar Suratkal, Mangalore, D.K. District."
3. It is conceded fact that the father of respondent No.2, who was working as Water Pump Operator, died on 20.06.2008. It appears that the appellant made an application seeking appointment on compassionate grounds. It was rejected on 28.03.2018. The ground was that the appellant is 21 days younger than the age of majority, which he was required to fulfil to get an appointment in the Government.
4. The submission of learned counsel for the appellant is that, as per Rule 5(1) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 (hereinafter referred to as the Rules' for short), if the appellant had not completed 18 years within one year from the date of -5- NC: 2024:KHC:30228-DB WA No. 703 of 2023 death of his father, he can, on attaining the age of majority, apply for compassionate appointment within one year thereafter. His submission is also in terms of the communication dated 31.01.2009, the appellant informed the respondent that his request for compassionate appointment cannot be granted.
5. He submits that the respondent has not challenged the said communication in any Court of law. It is only in the year 2018, upon the endorsement dated 28.03.2018, the respondent had approached this Court. He submits that the endorsement dated 28.03.2018 makes it clear that in terms of Rule 5(1) of the Rules referred to above, the respondent was required to file a request for compassionate appointment within one year, which the respondent did not do. As such, the appellant has rightly rejected the request of the respondent.
6. Learned counsel further submits that Rule 5(1) of the Rules being statutory in nature, the same is required to be followed and applied too, and as such, learned Single Judge could not have given the direction in the manner he has done in the impugned order. Hence, he prays that the order of the -6- NC: 2024:KHC:30228-DB WA No. 703 of 2023 learned Single Judge be set aside, otherwise, the same shall form a precedent making Rule 5(1) of the Rules otiose.
7. On the other hand, learned counsel for respondent No.2 would contend that the only direction given by the learned Single Judge is to consider the case of the respondent for grant of compassionate appointment. According to him, in that sense, there is no direction given by the learned Single Judge to the appellant to grant the compassionate appointment to the respondent, and as such, the direction given need not be interfered with.
8. That apart, on the plea of the learned counsel for the appellant that the appellant had not challenged the communication dated 31.01.2009 till the filing of writ petition No.18925/2021 is concerned, he submits that the respondent had made representations to the Government but had not heard anything positive from the Government on those representations. It is after the receipt of endorsement dated 28.03.2018, that the respondent had approached the learned Single Judge, challenging the said order, and as such, the delay which has occurred cannot be attributed to respondent No.2. -7-
NC: 2024:KHC:30228-DB WA No. 703 of 2023
9. We are unable to agree with the submissions made by the learned counsel for respondent No.2 for the simple reason that in terms of Rule 5(1) of the Rules, which has been referred to above, the same stipulate that respondent No.2 was required to make an application within one year after attaining the age of majority. Concedingly, no such application was made by respondent No.2 seeking compassionate appointment on attaining majority. It is true that respondent No.2 had made application, but that was before he had attained the age of majority. The same was answered in the year 2009 i.e., on 31.09.2009. The respondent No.2 was required to apply for compassionate appointment within one year of attaining the age of majority, which, concedingly, he has not done.
10. The case of respondent No.2 is that he made representations to the Government which have not been answered. The same cannot explain the inability of respondent No.2 to approach the Court of law immediately on receipt of the communication dated 31.09.2009 or make an application for compassionate appointment within one year of attaining the age of majority. The scheme for grant of compassionate appointment is only to tie over a situation arisen because of -8- NC: 2024:KHC:30228-DB WA No. 703 of 2023 death of an earning member in the family. The fact that respondent No.2 did not care to approach the Court for almost 9 years shows that the family was not in a dire situation which required grant of compassionate appointment to sustain itself.
11. We are of the view that the learned Single Judge has not appreciated the aforesaid facts. The learned Single Judge has also not considered the effect of Rule 5(1) of the Rules, which being a statutory Rule is required to be followed by the respondent. If a person does not adhere to the requirement of Rule 5(1) of the Rules, we are afraid in such a case, the request for compassionate appointment cannot be acted upon. Insofar as the direction of the learned Single Judge for consideration of the application of respondent No.2 in terms of the impugned order is concerned, the said direction shall be at variance with Rule 5(1) of the Rules of which a reference has been given above. The Rule being a statutory Rule, need to be given effect in letter and spirit.
12. In view of our discussion above, we are of the view that the direction of the learned Single Judge is clearly untenable and as such, the order passed by the learned Single -9- NC: 2024:KHC:30228-DB WA No. 703 of 2023 Judge is liable to be set aside and is ordered accordingly. The appeal is disposed of.
No cost.
In view of disposal of the main appeal, I.A.No.1/2023 stands disposed of.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(RAJESH RAI K) JUDGE KTY List No.: 1 Sl No.: 31