Karnataka High Court
Maruti Kadahalli @ Madar vs The Engineer-In-Chief on 13 June, 2023
Bench: S.Vishwajith Shetty
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WP No. 100311 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 100311 OF 2017 (S-RES)
BETWEEN:
MARUTI KADAHALLI @ MADAR S/O SHIVAPPA,
AGE: 22 YEARS, R/O C/O: KAREMMA CHIKKAMANI,
NEAR VITHAL DEVAR GUDI, BHAJANTRI ONI,
BELUR, TQ & DIST: DHARWAD
... PETITIONER
(BY SRI. RAVI HEGDE, ADVOCATE)
AND:
1. THE ENGINEER-IN-CHIEF,
WATER RESOURCE DEVELOPMENT INSTITUTE
(W.R.D.I.), ANANDA RAO, BENGALURU-560009.
Digitally
signed by
2. THE ADMINISTRATIVE OFFICER,
RAKESH S
HARIHAR KARNATAKA NEERAVARI NIGAM LTD.,
RAKESH Location: HALIYAL ROAD, VIJAYA COMPLEX,
High Court of
S
HARIHAR
Karnataka,
Dharwad NEAR SRINAGAR CIRCLE, DHARWAD.
Date:
2023.06.15 ... RESPONDENTS
11:01:55
+0530 (BY SRI. RAMESH N MISALE, ADVOCATE FOR R2;
R1 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE WRIT OF MANDAMUS OR ANY OTHER WRIT OR ORDER,
DIRECTING THE RESPONDENTS TO CONSIDER THE
REPRESENTATION AT ANNEXURE-F DATED: 08.11.2016
WITHOUT INSISTING THE DOCUMENTS AT SL.NO.1 AT
ANNEXURE-E WITHIN TIME FRAME & ETC.
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WP No. 100311 of 2017
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner who has filed an application
seeking appointment on compassionate ground has
preferred the instant writ petition seeking the following
reliefs:
a) Issue writ of mandamus or any other writ or order,
directing the Respondents to consider the
representation at Anneexure-F dated: 08.11.2016
without insisting the documents at sl.no.1 at
Annexure-E within time frame.
b) Issue writ of certiorari quashing the communication
dated 4-3-2015 in No.PÀ¤Ã¤¤/PÉÃPÀ/JJ¹Ö/¹-10/C.£ÉÃ
/2014-15/8239/ issued by 2nd Respondent vide
Annexure-E-1 in so far as it relates to directing the
parties to approach the Police station by filing
complaint and after resolving approach them seeking
appointment with documents.
c) Pass such other orders as this Hon'ble Court may
deem fit in the circumstances of the case including as
to be cost of this writ petition.
2. Heard the learned counsel for the parties and
also perused the material on record.
WP No. 100311 of 2017
3. The petitioner's father Shivappa Kadahalli @
Madar was working as peon in Water Resource
Development Institute, Dharwad. The said Shivappa
Kadahalli is said to have died in harness on 02.06.2012. It
appears that Shivappa Kadahalli had two wives and the
petitioner is the son of the 2nd wife namely Smt.Gangavva.
The 1st wife of Shivappa Kadahalli namely Smt.Nagavva
and her children had filed O.S.No.75/2013 after the death
of Shivappa Kadahalli seeking for the relief of declaration,
partition and separate possession. The 2nd wife of
Shivappa Kadahalli and her children were defendants in
the said suit. The said suit was decreed on 12.03.2013, on
the basis of a compromise petition. As per the terms of
compromise decree, the parties to the suit had agreed that
the petitioner herein was entitled for the benefit of
compassionate appointment after the death of his father
Shivappa Kadahalli. Subsequent to the said decree passed
in O.S.No.75/2013, it appears that the petitioner had
made an application on 18.04.2013 seeking
compassionate appointment. Considering the said
WP No. 100311 of 2017
application, the 2nd respondent on 12.12.2013 had
forwarded the petitioner's application to the 1st respondent
with a recommendation to appoint the petitioner on
compassionate ground. The 2nd respondent appears to
have also forwarded as many as 21 documents along with
this recommendation. The said recommendation was
followed with communication Annexure-D dated
22.01.2015, wherein the 2nd respondent has forwarded
certain other documents to the 1st respondent at his
request. Thereafter the 1st respondent has issued
communication at Annexure-E dated 08.01.2015
addressed to the 2nd respondent, seeking certain other
particulars to consider the candidature of the petitioner for
compassionate appointment.
4. When the matter stood thus, it appears that the
1st wife of Shivappa Kadahalli has filed objections before
the 2nd respondent opposing petitioner's candidature for
appointment on compassionate ground. After receiving the
said objection, the 2nd respondent has issued
WP No. 100311 of 2017
communication Annexure-E1 to the petitioner and his
mother for settling the dispute inter se between the family
members and thereafter to report to Office.
5. After receiving the communication at Annexure-
E dated 08.01.2015, the petitioner has submitted a
representation on 08.11.2016 with a prayer to consider his
candidature for appointment on compassionate ground,
based on the recommendation made by the respondent
No.2. It appears that the said representation is still
pending consideration and no orders have been passed on
the application filed by the petitioner seeking
compassionate appointment in spite of there being a
recommendation by the 2nd respondent. It is under these
circumstances, the petitioner is before this Court.
6. Learned counsel for the petitioner submits that
though the petitioner is the son of the 2nd wife of deceased
Shivappa Kadahalli, in view of the law laid down by the
Division Bench of this Court in the case of Sri.J.Mahendra
Vs.The General Manager, BESCOM Ltd., Bangalore
WP No. 100311 of 2017
and Another reported in ILR 2014 Kar 2480, there is
no bar for considering his claim for appointment on
compassionate ground. He submits that in view of the
decree passed in O.S.No.75/2013, the right to claim
compassionate appointment is only for the petitioner and
not to any other family members. He submits that the
very purpose of compassionate appointment is being lost,
having regard to the inordinate delay caused in
considering the petitioner's application.
7. Per contra, learned counsel for the contesting
respondents submits that since the petitioner is admittedly
the son of 2nd wife, in view of the judgment of the Division
Bench of this Court in Writ Appeal No.442/2010 disposed
of on 24.08.2013, his candidature cannot be considered.
He also submits that since the 1st wife and son of
deceased Shivappa Kadahalli have raised objections for
considering the petitioner's candidature, the
communication vide Anenxure-E1 has been issued to him
to settle the dispute within the family. Since the same has
WP No. 100311 of 2017
not been reported till date, the petitioner's application has
not been considered.
8. The question whether the son born to the 2nd
wife of the deceased employee is entitled for
compassionate appointment has been considered by the
Division Bench of this Court in the case of Sri.J.Mahendra
(supra) and taking into consideration the judgment of the
Hon'ble Supreme Court in the case of Vidhyadhari and
others Vs.Sukhranabai and others reported in (2008)
2 SCC 238 and in the case of Rameshwari Devi
Vs.State of Bihar and others reported in (2000)2 SCC
431. The Division Bench has held that even the son born
to the 2nd wife of the deceased employee was eligible to
seek compassionate appointment, even though the second
marriage was contracted during the subsistence of the first
marriage.
9. The judgment in WA No.442/2010 disposed of
on 29.08.2013, on which reliance has been placed by the
learned counsel for the respondents, has been passed
WP No. 100311 of 2017
without taking note of the earlier judgment of the Hon'ble
Supreme Court in the case of Vidhyadhari (supra) and in
the case of Rameshwari (supra) and therefore the same
is per incuriam.
10. The material on record would go to show that
pursuant to the compromise decree passed in
O.S.No.75/2013, the petitioner has made an application in
the prescribed form before the 2nd respondent on
18.04.2013 and considering the same, recommendation
has been made by the 2nd respondent to the 1st
respondent vide Annexures-C and D dated 12.12.2013 and
22.01.2015. Shivappa Kadahalli has died on 02.06.2012.
The petitioner's application is within the period of 1 year
from the date of death of Shivappa Kadahalli. Till issuance
of recommendation by the 2nd respondent, it appears that
no claim was made either by the 1st wife or by her
children seeking compassionate appointment. It is only
subsequently an objection is raised by the 1st wife of
Shivappa Kadahalli. Even if there was any such objection,
WP No. 100311 of 2017
it was for the competent authority to consider the
application of the petitioner in accordance with law and
pass appropriate orders on the same, if necessary, after
giving an opportunity of being heard to the 1st wife and
her children, who have now raised an objection for
petitioner's compassionate appointment. The scheme of
compassionate appointment is to provide relief to the
family of the deceased employee immediately after his
death and by keeping the application pending, the very
purpose of compassionate appointment is being lost and
under these circumstances, I proceed to pass the
following:
ORDER
Writ petition is allowed.
The communication at Annexure-E1 dated
04.03.2015 is quashed and a direction is issued to
consider the petitioner's application for compassionate
appointment in the light of the recommendation made by
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WP No. 100311 of 2017
the 2nd respondent at Annexures-C and D and pass
appropriate orders on the same as expeditiously as
possible, but not later than a period of 6 months from the
date of receipt of certified copy of this order.
The 1st respondent is at liberty to grant an
opportunity of being heard to the 1st wife of Shivappa
Kadahalli namely Smt.Nagavva and her children before
passing final order on the application filed by the petitioner
seeking compassionate appointment.
Sd/-
JUDGE
Kgk/Ct:Bck
