The Director vs Smt R Ambika
2022 Latest Caselaw 3102 Kant

                              1




       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE    23RD DAY OF FEBRUARY, 2022

                           PRESENT

           THE HON'BLE MRS. JUSTICE S. SUJATHA

                            AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                  W.A.No.1030 /2021 (S-RES)

BETWEEN:

1.     THE DIRECTOR
       (ADMINISTRATION & HUMAN RESOURCES)
       KARNATAKA POWER TRANSMISSION
       COMPANY LIMITED, CAUVERY BHAVAN
       K.G.ROAD, BENGALURU-560 009.

2.     THE CHIEF ENGINEER (ELEC.)
       STATE POWER TRANSMISSION CENTRE
       KARNATAKA POWER TRANSMISSION
       COMPANY LIMITED, RACE COURSE ROAD
       BENGALURU-560 001.

3.     SUPERINTENDING ENGINEER (ELEC.)
       SCADA, KARNATAKA POWER
       TRANSMISSION COMPANY LIMITED
       ANANDA RAO CIRCLE
       BENGALURU-560 009.
                                               ...APPELLANTS

[BY SRI. SHIRISH KRISHNA, ADVOCATE (VC)]

AND:

1.     SMT. R.AMBIKA
       D/O LATE RAMESH K
       W/O ARJUN HEBSUR
       AGED ABOUT 30 YEARS
       R/O NO.596, T-1
       NANJUNDESHWARA RESIDENCY
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      38TH MAIN ROAD, 25TH CROSS
      IDEAL HOMES, RAJARAJESHWARI NAGAR
      BENGALURU-560 098.
                                                  ...RESPONDENT
[BY SRI. N.B.PATIL, ADVOCATE FOR C/R1 (VC)]


    THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 06.07.2021 RENDERED BY THIS HON'BLE
COURT IN W.P.NO.27594/2019.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.01.2022, THIS DAY, RAVI V. HOSMANI J.,
PRONOUNCED THE FOLLOWING:

                        JUDGMENT

Challenging judgment dated 06.07.2021 passed by

learned Single Judge in WP No. 27594/2019, this appeal is filed.

2. Appellants herein were respondents no.1 to 3 in Writ

Petition; while respondent herein was petitioner. For the sake of

convenience, they shall be referred to as per their ranks in the

Writ Petition.

3. Brief facts as stated are that Sri K. Ramesh, died while

in service on 27.11.2015. He was working as Executive Engineer

in the office of respondent no.3. Due to untimely death, his

family was put to financial distress. With a view to provide for

families of employees of Corporation suffering from financial

distress due to untimely death of it's employees, respondent

Karnataka Power Transmission Corporation Limited ('KPTCL' for

short) has framed Regulations for appointment of dependants of

such employees on compassionate grounds. These Regulations

are titled as Karnataka Electricity Board Employees Recruitment

(Appointment on Compassionate Grounds) Regulations, 1997

(for short 'Regulations'). Regulations current on date of death

of petitioner's father were as amended by notification dated

08.10.2012.

4. Claiming benefit under Regulations, petitioner's mother

submitted application on 21.05.2016 seeking for appointment of

petitioner on compassionate grounds. Thereafter, petitioner

herself filed application for compassionate appointment on

30.05.2016, as she was only daughter of deceased and her

mother had consented for her appointment. Application was

accompanied with necessary documents such as, survivorship

certificate, residence certificate, caste and income certificate and

testimonials. Though, she had a brother namely, Arjun Chinnali,

had predeceased her father. Further, petitioner was married to

one Arjun Hebsur, but after death of her father, she was residing

with her mother. Therefore, application was filed mentioning the

same.

5. However, respondent no.2 issued an endorsement

dated 28.02.2016 rejecting petitioner's claim on the ground that

she was married daughter of deceased employee and not entitled

for appointment on compassionate grounds. Challenging the

endorsement, petitioner filed W.P.No.27594/2019. Petitioner had

also questioned constitutional validity of Regulations on the

ground of discrimination between 'married daughters' and

'married sons' as falling foul of right to equality guaranteed

under Article 14 of the Constitution of India.

6. Upon entering appearance, respondents filed statement

of objections contending that 'married daughter' was specifically

excluded from definition of 'family' of deceased employee and

therefore, petitioner was not entitled for consideration. It was

also contended that Regulations did not provide right for

appointment on compassionate grounds. It was also contended

that as petitioner was married, she could not be expected to be

living with her mother. Referring to caste and income certificate

produced as Annexure-F, it was contended that income of

petitioner was mentioned as Rs.60,000/-, therefore, petitioner

was not in financial distress, especially, on vague submission

that she was residing with her mother and without disclosing her

husband's financial and employment status. In view of decision

in W.A.No.1856/1992 and W.A.No.2185/1992, reversing decision

in R. Jayamma Vs. KEB reported in (1992) 3 KLJ 570,

interference by learned Single Judge was not called for.

7. It was further submitted that under similar

circumstances, this Court in the case of Smt. Vijayalakshmi

Sangayya Chouckimath in W.P.No.104067/2016 dismissed writ

petition. In the case of Smt. Manjula Vs. State of Karnataka

reported in ILR 2004 Kar. 1016, denial of compassionate

appointment to 'married daughter', even where she was

unemployed was upheld. It was also contended that lapse of

several years after death of petitioner's father before petitioner

filed Writ Petition would indicate that family did not suffer

financial distress.

8. Defending amended Regulations, it was contended that

normally after marriage, daughters migrate to residence of their

husband, unlike in case of sons. This consideration formed basis

for classification, which was reasonable and in furtherance of

object mainly to prevent bereaved family of deceased employee

from suffering financial distress.

9. Learned Single Judge proceeded to allow Writ Petition,

relying upon decision of this Court passed in

Smt. Bhuvaneshwari V Puranik Vs. State of Karnataka and

Others, in W.P.No.17788/2018 disposed of on 15.12.2020. In

the said case, discrimination between 'married sons' and

'married daughters' under Compassionate Appointment Rules

(for short 'Rules') applicable to government servants was struck

down. It was further observed that though, W.A.No.4917/2021

filed against identical case in Writ Petition no.44318/2015

disposed of on 10.02.2021 and there was no stay of judgment,

therefore, ratio would be applicable.

10. On said finding, learned Single Judge allowed Writ

Petition, quashed endorsement dated 28.10.2016 and directed

KPTCL to reconsider petitioner's case for appointment on

compassionate grounds, if she were found eligible in all other

respects bearing in mind the law laid down in the order passed

in W.P.No.17788/2018 dated 15.12.2020. Respondents were

directed to pass appropriate orders in accordance with law within

three months. Petitioner was enjoined to give an undertaking

that she would take care of her mother during remainder of her

lifetime.

11. Sri. Shirish Krishna, learned counsel for appellant, at

the outset, submitted that in the case of State of Madhya

Pradesh & Ors. Vs. Amith Shrivas reported in 2020 (10) SCC

496, Apex Court held that there was no inherent right to

compassionate appointment and it could be claimed only in

conformity of eligibility criteria stipulated in the scheme. Learned

counsel further submitted that though, it was not in dispute that

K. Ramesh died while in service of KPTCL on 27.11.2015 and

application for appointment on compassionate grounds was filed

on 30.05.2016 claiming benefit under Regulations, application

was rejected on 28.10.2016 taking note of status of petitioner as

'married' mentioned in her application. Rejection was in

conformity with Regulations providing exclusion of 'married

daughters' from definition of 'family of deceased employee', as it

stood on date of death. It was submitted that reliance was

placed upon decision in the case of Smt. Bhuvaneshwari V

Puranik (supra) would not be appropriate, as said decision was

rendered after considering challenge to Rules applicable to

government servants and not the Regulations applicable to

KPTCL. It was also submitted that challenge to validity of

Regulations was not pressed and not decided by learned Single

Judge. Therefore, direction issued would be unsustainable in law.

12. It was further submitted that a three Judges Bench of

Hon'ble Supreme Court in the case of N.C. Santhosh Vs. State

of Karnataka & Ors. reported in 2020 (7) SCC 61, held that

basis for consideration of application for compassionate

appointment would be the norms prevailing at the time of

consideration. But, in the case of Seema Kausar Vs. State of

Maharastra & Others, in Spl. Leave to Appeal (C) no.19252

of 2018 disposed of on 06.09.2021, Hon'ble Supreme Court held

that policy prevailing at the time of death of government

employee would apply for consideration of application for

compassionate appointment. Even in the case of Director of

Treasuries in Karnataka and Another Vs. V. Somyashree

reported in 2021 SCC OnLine SC 704, interpreting definition of

'dependent of a deceased government servant', Hon'ble Supreme

Court clarified that daughter, who was married at the time of

death of government employee and subsequently divorced would

not be a dependant and would be ineligible to claim

compassionate appointment. Hon'ble Supreme Court took note of

fact that as on date of death of government employee, applicant

therein was not divorced and shown her status as 'married' in

application. It was held that subsequent event of divorce would

not entitle her to claim compassionate appointment. It was

submitted that this would also be indicative of legal position that

Regulations prevalent on date of death would be the

consideration.

13. Again in the case of Secretary to Government

Department of Education (Primary) & Others Vs.

Bheemesh @ Bheemappa reported in 2021 SCC OnLine SC

1264, Hon'ble Supreme Court while specifically examining

proposition for retrospective application of amendment to

definition of 'members of family', after referring to decision in

N.C. Santhosh & Others, (supra) held that basis for

consideration of application for compassionate appointment

would be Rules prevailing on date of death of government

employee and not date of consideration of application.

       14.     It     was     submitted         that    KPTCL       had   amended

Regulations      by       notification     dated        08.11.2021        expanding

definition of 'family of deceased employee' by including 'married

daughters' also. The amendment was brought into force with

effect from 09.04.2021. As petitioner's case has to be considered

with reference to Regulations prevalent on date of death of

petitioner's father, grant of relief amounted to giving

retrospective effect to amended Regulations, which were

expressly stated to be effective from 09.04.2021.

15. It was also submitted that in the case of Ramkanali

Colliery of BCCL Vs. Workmen reported in (2001) 4 SCC

236, Hon'ble Supreme Court explained effect of expression

'substituted' used in context of deletion of provisions of law,

stating that where an existing provision is deleted and a new

provision is substituted, such deletion has effect of repealing

existing provision and introduction of new provision. If vested

rights under repealed provision were taken away by substituted

provision, it could no longer be contended that right under

repealed provision should be enforced. In view of above law, it

was submitted that as Regulations prevalent on date of death

had since been amended, but with prospective effect, rights

under un-amended Regulations stood eclipsed and could not be

enforced. On said ground also, order passed by learned Single

Judge calls for interference.

16. Learned counsel elaborated stating that learned Single

Judge in Smt. Bhuvaneshwari's case (supra) after interpreting

phrase 'dependent of a deceased government servant' had struck

down exclusion of 'married daughters' from ambit of expression

'family' in Rule 2 (1) (a) (i), Rule 2(1)(b) and Rule 3 (2) (i) (c) of

Karnataka Civil Services (Appointment on Compassionate

Grounds) Rules, 1996 as illegal and unconstitutional. Said

decision was given after considering decisions in Ranjana M.

Anerao; C.B. Muthamma and Sou. Swara Sachin Kulkarni

(supra) etc., none of which were decided considering Regulations

applicable to KPTCL. It was submitted that decision in Ranjana

M. Anerao's case (supra) referred to Aparna Zambre's case

(supra), which in turn referred to decisions of this Court in

Manjula and R. Jayamma (supra).

17. In Manjula's case (supra), while considering Rules

applicable to government employees, it was held that for

consideration of application for appointment on compassionate

grounds, 'dependency' should be the yardstick and not

'marriage', after distinguishing decision in W.A.No.1856/1992

and connected matters. Discrimination in refusing appointment

only on ground that applicant was married woman would be

violative of Constitution, but said decision would not apply to

KPTCL.

18. It was submitted that decision in R. Jayamma (supra)

having been set-aside in Writ Appeal No.1856/1992 and

connected matters, without distinguishing this case from

R Jayamma (supra), allowing of writ petition by learned Single

Judge would not be justified.

Decision of Division Bench of this Court in the case of

Managing Director KPTCL & Others Vs. Smt. K.M.

Meghashree in W.A.No.497/2021 disposed of on 30.07.2021,

with a direction to consider case of 'married daughter' for

compassionate appointment by referring to earlier Division Bench

decision in Smt. Bhagyashree (supra). It was submitted that

said decision was rendered following earlier decision in the case

of State of Karnataka & Others Vs. Smt. C.N. Apporva

Shree & Another, in W.P.No.5409/2021 disposed of on

22.03.2021 and Spl. Leave to Appeal (c) No.20166/2021

filed before Hon'ble Supreme Court challenging decision in

C.N. Apporva Shree (supra) was dismissed on 17.12.2021, by

referring to decision in Smt. Bhuvaneshwari (supra). In none

of these cases Regulations were challenged nor held

unconstitutional. In fact, in Asha Vs. M.D. KPTCL & Others in

W.A.No.200027/2021 disposed of on 26.11.2021, challenge to

clause (3) of Regulations insofar as exclusion of 'married

daughters' for appointment on compassionate grounds was

dismissed by Division Bench. On above submission, learned

counsel sought for allowing the appeal.

19. On the other hand, Sri N.B. Patil, learned counsel for

respondent, at the outset, submitted that in paragraphs no.16 to

18 of Writ Petition, constitutional validity of Regulations was

questioned. The nature of discrimination against 'married

daughters' under Rules applicable to government employees and

Regulations being pari materia, proceeded to follow the law laid

down in Smt.Bhuvaneshwari's case (supra) to allow writ

petition by issuing appropriate consequential directions. As

discrimination against 'married daughters' insofar as right to

claim appointment on compassionate grounds, having been spelt

upon consistently by Courts of law, no interference with order

passed by learned Single Judge was called for.

20. He relied upon following decisions:

In the case of C.B. Muthamma Vs. Union of India and

Others reported in AIR 1979 SC 1868, Hon'ble Supreme Court

held that provision requiring permission before marriage and

denial of employment to 'married women' as discriminatory and

violative of Articles 14 & 16 of the Constitution.

21. In the case of State of West Bengal Vs. Purnima

Das, reported in 2017 SCC Online Cal 1321, Division Bench of

High Court of Calcutta, considering similar issue of denial of

appointment on compassionate grounds to 'married daughters',

struck down such restriction as unconstitutional. Further relying

upon decision in Manjula (supra), High Court of Bombay, in the

case of Aparna Narendra Zambre Vs. Assistant

Superintendent Engineer, reported in 2011 SCC OnLine Bom

994 held that government resolution being manifestly

discriminatory and arbitrary was violative of Articles 14, 15 & 16

of the Constitution of India. Similar view was expressed by

Division Bench of High Court of Bombay in the case of

Sou. Swara Sachin Kulkarni Vs. Superintendent Engineer,

Pune, reported in 2013 SCC OnLine Bom 1549. Thereafter

referring to its decision in Aparna N Zambre (supra), High

Court of Bombay in the case of Ranjana Murlidhar Anerao Vs.

State of Maharastra, reported in 2014 SCC OnLine Bom 910

struck down similar discriminatory provision excluding 'married

daughter' from the expression 'family' from being entitled to

consideration for grant of retail kerosene licence as violative of

Articles 14, 15 and 19(1)(g) of the Constitution of India.

22. Learned counsel also relied upon decision of Division

Bench of High Court of Allahabad in the case of Smt. Vimla

Srivastva Vs. State of Uttar Pradesh & Another in W.P.

No.60881/2015, disposed of on 04.12.2015, wherein exclusion

of 'married daughters' and 'married adopted daughters' from

definition of 'family' in the Uttar Pradesh Recruitment of

Dependents of Government Servants Dying-in-Harness

Rules, 1974, was held as violative of Articles 14 and 15 of

Constitution of India, referring to decisions in C.B. Muthamma

and Manjula and Smt. Ranjana Anerao etc.,(supra).

23. In the case of Meenakshi Dubey Vs. M.P. Poorva

Kshetra Vidyuth Vitran Co., Ltd., and others reported in

(2020) 1 MPLJ 657, Full Bench of High Court of Madhya

Pradesh, while considering clause 2.2 and 2.4 of policy of

compassionate appointment of State Government dated

29.09.2014, which excluded 'married daughter' from zone of

consideration for appointment on compassionate basis, as

violative of Articles 14, 15, 16 and 39(a) of the Constitution of

India.

24. Learned counsel also relied upon decision in the case

of Secretary, Ministry of Defence Vs. Babita Puniya and

others, reported in AIR 2020 SC 1000, Hon'ble Supreme Court

held denial of permanent commission for women officers in

Armed Forces as violative of guarantee of equality under Article

14 of Constitution of India. It was held that an absolute

prohibition of women SSC Officers from obtaining permanent

commission would fall foul of constitutional guarantee of

equality.

25. Reliance was also placed on decisions in

Smt. Bhuvaneshwari and Smt. Bhagyashree (supra). On the

above submissions, learned counsel sought for dismissal of writ

appeal.

26. From the above, it is not in dispute that petitioner's

father - K.Ramesh, died while in service of KPTCL on 27.11.2015.

An application seeking appointment on compassionate grounds

was filed on 30.5.2016. It was rejected by issuing endorsement

on 28.10.2016. The only reason stated therein was that

Regulations did not provide for consideration of application of

'married daughter'. Regulations prevalent on date of death, were

as amended by notification dated 08.10.2012 (Annexure-L).

Regulation 2(a)(i) relevant for the instant case reads as follows:

"2(a) : In the said Regulations, unless the context otherwise requires:-

(i) Dependent of a deceased male Board employee means, his widow, son, unmarried daughter and widowed daughter who were wholly dependent on him and were jointly living with him."

27. Rules considered in Smt. Bhuvaneshwari's case

(supra) viz., Rule 2 (1) (a) (i), Rule 2(1)(b) and Rule 3 (2) (i) (c)

of Rules, 1996 read as follows:

"Rule 2.Definitions:- In these rules unless the context otherwise requires -

(a) Dependent of the deceased government servant means -

(i) In the case of deceased male government servant, his widow, son, unmarried daughter and widowed daughter who were dependent upon him and were living with him; and xxxx

(b) "Family" in relation to a deceased Government servant means his or her spouse and their son, unmarried daughter and widowed daughter, unmarried brother, unmarried or widowed sister, who were living with him."

"Rule 3. Eligibility for appointment:-

(1) xxxx (2) Appointment under these rules shall be restricted to dependant of a deceased government servant in the following order of preference, namely-

(i) In the case of the deceased male government servant-

(a) xxxx

(b) xxxx

(c) an unmarried daughter, if the widow and son are not eligible or for any valid reason they are not willing to accept the appointment;"

28. A bare comparison of Regulations with Rules would

reveal that they are pari materia. The basis for classification and

nature of discrimination are same and for same purpose.

29. Dismissal of Writ petition in Smt. Asha's case (supra)

and its confirmation by Division Bench would not apply to this

case, as it was on ground of suppression of material fact.

Therefore, validity of Regulations cannot be understood as

upheld. As narrated above, such discrimination has been held to

be unconstitutional in a long lineage of judgments (supra)

though rendered considering different Rules, we have no

hesitation to declare discrimination under Regulations likewise,

especially, as provisions of Rules and Regulations are pari

materia and when petitioner had in fact challenged constitutional

validity of Regulations in the Writ Petition. In our opinion, it

would be too hyper-technical on the part of appellants to

question order passed by learned Single Judge on the ground

that there was no decision on validity/invalidity of Regulations.

The fact that KPTCL has amended its Regulations to bring them

in tune with decision in Smt. Bhuvaneshwari (supra) is

apparently an acknowledgement of the above legal position.

30. Therefore, we do not find sufficient justification to

interfere with order passed by learned Single Judge directing

appellants to consider case of petitioner in the light of law

declared.

31. The other contention urged by learned counsel for

appellants that in view of prospective amendment to Regulations

w.e.f. 09.04.2021, Regulations prevalent on date of death of

petitioner's father was no longer in existence and therefore,

discriminatory Regulations were not available for this Court to

spell upon, referring to judgment of Hon'ble Supreme Court in

Ramkanali Colliery of BCCL (supra) would also be

misconceived. Firstly, nature of amendment brought in vide

notification dated 08.11.2021 w.e.f., 09.04.2021 is not by

substitution, but by way of addition. Therefore, Regulations

(Annexure-L) would be available for scrutiny by this Court. As

noted above, provisions of Regulations and Rules are same.

32. From perusal of impugned order, it is noted that

learned Single Judge was appraised of amendment made to

Regulations by KPTCL deleting word 'unmarried'. The only

submission made by learned counsel for appellants as recorded

was that some clarification was sought from government.

Learned counsel for appellants has not explained either about

clarification sought or how same would prevent learned Single

Judge from passing orders after coming to conclusion that there

was no justification for denying consideration of petitioner's case

for compassionate appointment.

33. It appears that there was no attempt made to justify

Regulations except a feeble submission that order dated

10.02.2021 passed in W.P.No.44318/2015, (perhaps relied upon

by petitioner) was pending in W.A.No.497/2021, therefore,

impugned endorsement was rightly opined as being unjustifiable.

It was specifically noted that Division Bench had not granted stay

of order dated 10.02.2021. The position as it now stands is that

W.A.No.497/2021 was disposed of on 30.07.2021, following

decision in Smt. Bhagyashree (supra), which in turn followed

earlier decision in Smt. C.N. Apporva Shree (supra), and which

is confirmed by Hon'ble Supreme Court in Spl. Leave to Appeal

(C) No.20166/2021 on 17.12.2021. Therefore, ratio of

Smt. Bhuvaneshwari's case (supra) has received affirmation at

the hands of Apex Court also apart from being reiterated in the

long lineage of decisions referred to by learned counsel herein.

34. Even contention regarding retrospective application of

amendment to Regulations dated 08.11.2021 would be

misconceived as amendment is prospective and not by way of

substitution, i.e., prior to amendment, KPTCL sought to justify

discrimination against 'married daughters' on the basis of

reasonable classification as upheld in W.A.No.1856/1992 and

connected matters. But, basis for classification was distinguished

in Manjula's case (supra), which as narrated above received

affirmation in W.A.No.497/2021 relied upon by appellant before

learned Single Judge. Said decision as stated above has been

affirmed by Apex Court. Therefore, quashing of endorsement

dated 28.10.2016 and issuance of direction to reconsider

petitioner's application for appointment on compassionate

grounds, if she is otherwise eligible does not call for interference.

In the result, we pass following:

ORDER

Writ Appeal is dismissed.

However, appellants are directed to consider case of

petitioner as ordered by learned Single Judge, within three

months from today.

Sd/-

JUDGE

Sd/-

JUDGE Bvk/Psg*