Smt. K.G.Sowmya vs The State Of Karnataka
2021 Latest Caselaw 512 Kant

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 8TH DAY OF JANUARY, 2021

                      BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

        WRIT PETITION No.314/2021 (S- RES)

BETWEEN

SMT. K.G.SOWMYA,
D/O LATE K G BASAVARAJAPPA,
AGED ABOUT 30 YEARS,
R/AT DOOR NO.1675/77A,
I FLOOR, I MAIN ROAD,
I CROSS, KIRUVADI LAYOUT,
LENIN NAGARA,
NEAR CHOWDAMMA TEMPLE, NITTUVALLI,
DAVANAGERE - 577 004.
                                      ... PETITIONER

[BY SRI SRIKANTH PATIL K, ADVOCATE
    (VIDEO CONFERENCING)]

AND

1.    THE STATE OF KARNATAKA,
      REPRESENTED BY ITS SECRETARY,
      URBAN DEVELOPMENT DEPARTMENT,
      M.S.BUILDING,
      BANGALORE - 577 001.

2.    DIRECTOR OF MUNICIPAL ADMINISTRATION,
      9TH FLOOR, VISHWESHWARAIAH TOWERS,
      AMBEDKAR VEEDI,
      BENGALURU - 560 001.
                              2




3.      THE DEPUTY COMMISSIONER,
        DAVANAGERE DISTRICT,
        DAVANAGERE - 577 002.

4.      THE CITY CORPORATION,
        DAVANAGERE,
        REPRESENTED BY ITS COMMISSIONER,
        DAVANAGERE - 577 002.
                                    ... RESPONDENTS

[BY SMT.M.C. NAGASHREE, AGA (PHYSICAL HEARING)]

      THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER DATED 30.11.2019
PASSED BY THE R-3 REJECTING THE REVISION/APPEAL
ANENXURE - A AND THE ENDORSEMENT DATED
12.10.2017 ISSUED BY THE R-4 CORPORATION ANNEURE
- A1 AND ETC.,

     THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The petitioner in this writ petition has called in

question the order dated 30.11.2019, whereby the

claim of the petitioner for appointment on

compassionate ground is turned down on the score

that the petitioner is a divorced daughter and would

not come within the definition of 'Family' as defined

under Rule 2(1)(a))i), Rule 2(1)(b) and Rule 3(2)(i)(c)

of the Karnataka Civil Services (Appointments on

Compassionate Grounds) Rules, 1996 (hereinafter

referred to as 'the said Rules' for short).

2. Heard the learned counsel, Sri. Srikanth

Patil K., appearing for the petitioner and the learned

AGA, Smt. M.C. Nagashree, appearing for the

respondents.

3. The ground of rejection is contrary to the

law laid down by a learned Division Bench of this

Court in the case of MRS. V. SOMYASHREE Vs. THE

DIRECTOR OF TREASURIES IN KARNATAKA AND

ANOTHER reported in ILR 2019 KAR 3139, whereby

this Court, has held as follows:

"10. In relation whereto, is a prominent Irish adage that "A SON IS A SON TILL HE GETS A WIFE, BUT A DAUGHTER IS A DAUGHTER THROUGHOUT HER LIFE". Therefore, the adage is aptly applicable in the given case.

11. The High Court of Karnataka in the case of MANJULA Vs. STATE OF KARNATAKA AND ANOTHER reported in ILR 2004 KAR 4881, was concerned with the very same question. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of C.B.MUTHAMMA vs. UNION OF INDIA AND OTHERS reported in AIR 1979 SC 1868, wherein it was held that, if a married man has a right, a married woman, other things being equal, has an equal right as that of a married man. That the discrimination would affect Article-16 of the Constitution of India. Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of KANWARJEET SINGH AND OTHERS vs. AIR INDIA AIR HOSTESSES ASSN. AND OTHERS reported in 2003(6) SCC 278, wherein it was held that there is a constitutional prohibition to the State not to discriminate citizens only on sex, however, it does not prohibit a special treatment to the women in employment on their own demand. The judgment of the Division Bench of this Court in Writ Appeal No.1856 of 1992 was also considered, wherein, the Division Bench held that, even a married daughter should be included in the category of dependency. On considering the aforesaid judgments, the Learned Single Judge therein held that Articles 15 and 16 of the Constitution of India prohibits discrimination on sex. Therefore, the Learned Single Judge was of the view that no married women could be denied entry into service on compassionate grounds, only because she is married. This judgment of the Learned Single Judge was followed by the High Court of Bombay in the case of APARNA NARENDRA ZAMBRE Vs. KRISHNA KOYNA

UPSA SINCHAN PROJECT BOARD, reported in 2011 SCC Online Bombay 994.

12. Reliance is also placed on the judgment of this Court in the case of K.N.SAVITHA vs. STATE OF KARNATAKA AND OTHERS reported in 2011 SCC Online Kar 196, wherein the earlier judgments of this court in the case of MANJULA vs. STATE OF KARNATAKA, BY ITS SECRETARY DEPARTMENT OF CO-OPERATION, BENGALURU (supra), nd the other judgments of the Calcutta High Court were considered. Thereto, an application was made by a divorced daughter for an appointment on compassionate grounds, which was rejected by the authorities. On considering various judgments, the Court held that the rejection of employment on the ground that the petitioner therein was a divorced woman, was not tenable. The respondents - State was directed to consider the case of a divorced daughter for an appointment on compassionate grounds, subject to fulfillment of other conditions. It is presently submitted at the Bar that no writ appeal has been preferred by the State against the said order. Therefore, the order of the Learned Single Judge has been accepted by the State wherein a divorced daughter was held to be entitled for an appointment on compassionate grounds.

13. Even though the records would indicate that the decree of divorce was obtained almost one year after the death of her mother, the petition for divorce was filed in the year 2012 itself. The averments in the divorce petition would indicate that they were living separately since the year 2011 and that there was no co-habitation between them since

then, which means that though she lived with her husband for a period of one year, ever since 2011, she was living with her mother and she was dependent on her mother. Her mother died on 25.03.2012. That in terms of the mutual decree for divorce under Section 13-B of the Hindu Marriage Act, the decree of divorce was granted, a copy of which has been produced herein at Annexure-7. The same would indicate that all the valuables that were given by the husband were returned. There is no order of any maintenance. There is no property that she has received from her ex- husband. In fact, what she has received are all that were given by her family to him. There is not even an ounce of advantage she has received from her ex-husband. Therefore, it is apparent that she was absolutely dependent on her mother and living with her for her livelihood.

14. The Rules have been framed in order to show compassion to the representative of the deceased. When the material on record clearly indicates that the daughter being a divorcee, was completely dependent on her mother, we do not find any reason as to why such a relief should not be granted to her. Under these circumstances, to exclude a divorced daughter from being considered for an appointment, in our considered view, is discriminatory and arbitrary.

15. The material on record would indicate that, admittedly, the petitioner is a divorced daughter. She was dependent on her mother and was living with her. The same is the language used even in Rule 3 of the Karnataka Civil Services

(Appointment on Compassionate Grounds) Rules, 1996, Therefore, the yardstick that has to be applied is one of dependency and not the status of the marriage. It is for this reason that an unmarried daughter and a widowed daughter are considered as dependents. The definition also indicates that in addition to this requirement, one should be dependent and living with the deceased. The material on record would indicate that the relationship of the petitioner with the husband broke down and she was living with her mother. The same is also a part of the Court records in the divorce proceedings. Therefore, the condition with regard to being a dependent on the mother and living with her has been fulfilled.

16. It is needless to state that 'an unmarried daughter and a widowed daughter' are dependents on their parents, provided they are living with them and dependent on them. Therefore, to exclude only one category of a divorced daughter is discriminatory. In our considered view, 'a divorced daughter' stands on the same footing as that of 'an unmarried daughter' or 'a widowed daughter', provided she was dependent on the deceased and living with him/her. If a divorced daughter is not living with her parents or not dependent on them, then she cannot be considered as a dependent. However, if the facts are proved that the divorced daughter is dependent and living with her parents,

then she too, would be entitled for an appointment on compassionate grounds.

17. The Rule would therefore have to be read harmoniously. If the Rule is to be construed literally, it would lead to discrimination and would cause injustice. There is no intention of the Rule Making Authority to specifically deny the relief to a 'divorced daughter'. When the Rule Making Authority has added an 'unmarried and widowed daughter', a 'divorced daughter' would also have to be considered as belonging to the same class.

Therefore, when the Rule is read harmoniously, it has to be construed to include a 'divorced daughter' also. Therefore, we hold that a 'divorced daughter' who is a dependent and living with her parents should also be considered on par with 'an unmarried and widowed daughter' who is dependent and living with her parents.

18. In view of the aforesaid discussion, it is held that 'a divorced daughter' shall be considered on par with 'an unmarried and a widowed daughter'. Therefore, wherever a reference is made to 'an unmarried daughter and widowed daughter' in the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, the same shall also be read to include 'a divorced daughter'. The rest of the Clauses with regard to her being dependent on her parents, living with them etc., shall stand applicable even to 'a divorced daughter'."

(emphasis supplied)

4. Therefore, the respondents are directed to

reconsider the case of the petitioner for appointment

on compassionate ground ignoring the fact that she is

a divorced daughter in the light of the law laid down

by this Court in the aforesaid case since the case is of

grant of compassionate appointment, immediacy of

such consideration is paramount.

5. The respondents are directed to reconsider

the case in accordance with law within two months

from the date of receipt of copy of this order.

Ordered accordingly.

Sd/-

JUDGE

SJK