Karnataka High Court
Maheshwari vs The State Of Karnataka And Ors on 4 April, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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WP No.203125 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
WRIT PETITION NO.203125 OF 2023 (S-KAT)
BETWEEN:
MAHESHWARI
W/O MAHESH (D/O VEERANGOUDA)
AGED ABOUT 28 YEARS
OCC: HOUSEWIFE
R/O GAVIGATTU VILLAGE
TQ: MANVI, DISTRICT: RAICHUR.
...PETITIONER
(BY SRI MAHANTESH PATIL, ADVOCATE)
AND:
Digitally signed by
BASALINGAPPA
SHIVARAJ 1. THE STATE OF KARNATAKA
DHUTTARGAON
Location: High
THROUGH ITS PRINCIPAL SECRETARY
Court Of Karnataka EDUCATION DEPARTMENT
(ADMINISTRATION SERVICE-II)
VIKASA SOUDHA
BANGALORE - 560 001.
2. THE DIRECTOR OF HEALTH AND
FAMILY WELFARE SERVICE
ANANDRAO CIRCLE
BANGALORE - 09.
3. THE DISTRICT HEALTH AND
FAMILY WELFARE OFFICER
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WP No.203125 of 2023
RAICHUR
DISTRICT RAICHUR - 584 101.
4. THE PHYSICIAN
PRIMARY HEALTH CENTER
GILLESUGUR
TQ: AND DIST : RAICHUR - 584 101.
...RESPONDENTS
(BY SRI MALLIKARJUN C. BASAREDDY, GOVT. ADV.,)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE ORDER DATED 13-10-2023 PASSED BY THE
HON'BLE KARNATAKA STATE ADMINISTRATION TRIBUNAL AT
KALABURAGI IN APPLICATION NO. 20744/2022 VIDE
ANNEXURE-C PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL KALABURAGI B) ISSUE A WRIT
OF CERTIORARI ORDER, DIRECTIONS QUASHING THE
ENDORSEMENT ISSUED BY RESPONDENT NO.2 IN FILE
NO.¸ÀASÉå:¹eÉJ(2)EvÀgÉ/35/2021-22 DATED 28.03.2022 VIDE
ANNEXURE-A22 C) ISSUE A WRIT OF MANDAMUS, DIRECTING
THE RESPONDENTS TO CONSIDER THE APPLICANTS
REPRESENTATION AND APPOINT HER ON COMPASSIONATE
GROUND D) ISSUE SUCH OTHER WRIT OR ORDER OR
DIRECTION AS THIS HON'BLE COURT DEEMS JUST AND
PROPER UNDER THE FACTS AND CIRCUMSTANCES OF THE
CASE AND ALLOW THIS WRIT APPEAL, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B" GROUP THIS DAY H.T.NARENDRA PRASAD
J., MADE THE FOLLOWING:
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WP No.203125 of 2023
ORDER
1. This writ petition is filed under Articles 226 and
227 of the Constitution of India challenging the order
dated 13.10.2023 passed by the Karnataka State
Administrative Tribunal, Kalaburagi (for short 'KSAT') in
Application No.20744/2022 whereby the application filed
by the petitioner has been dismissed and endorsement
dated 28.03.2022 issued by the respondent No.2
rejecting the claim of the petitioner for her appointment
on compassionate ground has been upheld.
2. Brief facts of the case:
The petitioner's father, Veerangouda, was working
as a Junior Health Assistant at Primary Health Centre,
Gillesugur Village, Raichur. He died on 14.02.2019 while
he was in service, leaving behind his wife and three
daughters. The petitioner, being the third daughter of
the deceased Veerangoud, obtained no objection from
her mother and other two sisters and applied for her
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appointment on compassionate ground on 30.12.2019.
The respondent No.3 by endorsement dated 06.01.2020
has rejected the application of the petitioner on the
ground that she is a married daughter. The said order
dated 06.01.2020 has been challenged by the petitioner
before the KSAT in Application No.20349/2020. The
KSAT vide order dated 25.01.2021 allowed the
application and directed the respondents to consider the
application of the petitioner and appoint her on
compassionate ground. Since the said direction was not
complied, the petitioner filed a contempt application in
CTA No.20108/2021 against the respondents for
disobedience of the directions issued by the KSAT.
During the pendency of the contempt application, the
respondent No.2 filed an affidavit enclosing the
endorsement dated 28.03.2022 along with a memo.
Once again, by endorsement dated 28.03.2022, the
application of the petitioner for her appointment on
compassionate ground was rejected on the very same
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ground that she is a married daughter and she is not
entitled for appointment under Karnataka Civil Services
(Appointment on Compassionate Grounds) Rules 1996
(for short 'Rules 1996'). Being aggrieved by the same,
the petitioner filed an application before the KSAT in
Application No.20744/2022 challenging the endorsement
dated 28.03.2022. The KSAT by order dated 13.10.2023
has dismissed the application by upholding the
endorsement dated 28.03.2022 issued by the
respondent No.2. Being aggrieved by the same, the
petitioner is before this Court.
3. Sri.Mahantesh Patil, learned counsel appearing for
the petitioner has contended that the petitioner's
application for her appointment on compassionate
ground was rejected by respondent No.3 vide
endorsement dated 06.01.2020 and the same has been
challenged before the KSAT in Application
No.20349/2020. During the pendency of the application
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filed by the petitioner, a writ petition was filed by one
Smt.Bhuvaneshwari V Puranik in W.P.No.17788/2018
before the High of Karnataka, Bangalore, challenging the
validity of the Rules 1996. The said writ petition came to
be disposed of on 15.12.2020 and the word 'unmarried'
in Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of
the Karnataka Civil Services (Appointment on
Compassionate Grounds) Rules, 1996 was ordered to be
striked down. The said order passed in
W.P.No.17788/2018 was placed before the KSAT by the
petitioner. Without considering the same, the KSAT by
order dated 13.10.2023 has erroneously dismissed the
application filed by the petitioner. He further contended
that once the Court strikes down the Rule and unless
held prospective, it will only mean that it is inoperative
and ineffective and thus unenforceable. Therefore, there
is no provision for rejecting the application on the
ground that the applicant is a married daughter. In
support of his contention, he has relied upon the
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judgment of the Apex Court in the case of CBI -v-
R.R.Kishore reported in 2023 LiveLaw (SC) 770. Further,
he has relied upon the Division Bench judgment of this
Court passed in W.P.No.3340/2020 c/w
W.P.No.1002/2021 disposed of on 28.05.2021 wherein
the Division Bench in a similar circumstance following
the judgment of this Court passed in
W.P.No.17788/2018 in the case of Smt.Bhuvaneshwari
V Puranik -v- State of Karnataka and another has held
that unmarried daughters are also entitled for
appointment on compassionate ground. Hence, he
sought for allowing the writ petition.
4. Per contra, Sri.Mallikarjun C. Basareddy, learned
Government Advocate appearing for the respondents-
State has contended that as on the date of death of the
petitioner's father on 14.02.2019, the Rule which was
existing is that the married daughters are not entitled
for appointment on compassionate ground. Even on the
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date of the application by the petitioner, the said Rule
was in existence. Therefore, the authority has rightly
issued the endorsement rejecting the request of the
petitioner. He further contended that the judgment of
this Court passed in W.P.No.17788/2018 in the case of
Smt.Bhuvaneshwari V Puranik (supra) is applicable only
with prospective effect and in respect of application,
which was considered before the order passed in
W.P.No.17788/2018, the said judgment is not
applicable. Hence, he sought for dismissal of the writ
petition.
5. Heard the learned counsel appearing for the
petitioner and learned Government Advocate appearing
for the respondents. Perused the writ papers.
6. It is not in dispute that the petitioner's father,
Veerangouda, was working as Junior Assistant at District
Health Family Welfare, Raichur. He died on 14.02.2019
while he was in service. Thereafter, the petitioner, being
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the third daughter of the deceased-Veerangouda after
obtaining no objection from her mother and other
sisters, filed an application dated 30.12.2019 seeking for
her appointment on compassionate ground. The
respondent No.3 has issued an endorsement dated
06.01.2020 rejecting the claim of the petitioner on the
ground that she is a married daughter. Being aggrieved,
the petitioner challenged the said endorsement dated
06.01.2020 by filing an application before the KSAT in
Application No.20349/2020. During the pendency of the
application, one Smt.Bhuvaneshwari V Puranik filed a
writ petition before the High Court of Karnataka,
Bangalore in W.P.No.17788/2018 wherein she had
challenged the constitutional validity of Rule 2(1)(a)(i),
Rule 2(1)(b) and Rule 3(2)(i)(c) of the Rules 1996. This
Court by order dated 15.12.2020 allowed the said Writ
Petition and has striked down the word 'unmarried' in
Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the
Rules 1996. Thereafter, the State Government has made
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amendment to the Rules 1996 and the word 'unmarried'
has been removed. This Court while striking down the
word 'unmarried' has not held prospective overruling.
Hence, the said Rule is void ab initio.
7. The Apex Court in the case of CBI -v- R.R.Kishore
(supra) in paragraph 42 has held as follows:
"42. A brief reference to the case law on the point
would be necessary at this stage. It may be
worthwhile to mention that the earlier seven-
judge Bench and Constitution Bench judgments
relate to Article 13(1) of the Constitution, dealing
with pre-existing laws at the time of
commencement of the Constitution. There are later
judgments relating to Article 13(2) of the
Constitution. However, reliance is placed upon the
judgments on Article 13(1) while interpreting the
word 'void' used in Article 13(2).
(i) The facts in the case of Keshavan Madhava
Menon (supra), was that a prosecution was
launched against the appellant therein under the
provision of the Indian Press (Emergency Powers)
Act, 193157 for a publication issued without the
necessary authority under Section 15(1) of the
said Act, and as such, became an offence
punishable under Section 18 (1) of the same Act.
This prosecution had been launched in 1949 itself
and registered as Case No. 1102/P of 1949. During
the pendency of the said proceedings, the
Constitution of India came into force on
26.01.1950. The appellant therein took an
objection that provisions of 1931 Act were ultra
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vires of Article 19(1)(a) read with Article 13(1) of
the Constitution and would, therefore, be void and
inoperative as such he may be acquitted. The High
Court was of the view that the proceedings
pending on the date of commencement of the
Constitution would not be affected even if the 1931
Act was inconsistent with the Fundamental Rights
conferred by Part III of the Constitution. However,
the same would become void under Article 13(1) of
the Constitution only after 26.01.1950.
(ii) The seven-judge Bench of this Court gave rise
to three separate opinions: Justice Sudhi Ranjan
Das authored the majority judgement with Chief
Justice Kania, Justice M. Patanjali Sastri and
Justice N. Chandrasekhara Aiyar concurring;
Justice Mehar Chand Mahajan authored a separate
opinion concurring with the majority view; Justice
Fazal Ali wrote a dissenting judgment with Justice
B.K. Mukherjea agreeing with him. The majority
agreed with the view taken by the High Court.
They accordingly dismissed the appeal. Para 16 of
the report which contains the dictum is reproduced
hereunder:
"16. As already explained above, Article 13(1) is
entirely prospective in its operation and as it was
not intended to have any retrospective effect there
was no necessity at all for inserting in that article
any such saving clause. The effect of Article 13(1)
is quite different from the effect of the expiry of a
temporary statute or the repeal of a statute by a
subsequent statute. As already explained, Article
13 (1) only has the effect of nullifying or rendering
all inconsistent existing laws ineffectual or
nugatory and devoid of any legal force or binding
effect only with respect to the exercise of
fundamental rights on and after the date of the
commencement of the Constitution. It has no
retrospective effect and if, therefore, an act was
done before the commencement of the
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Constitution in contravention of the provisions of
any law which, after the Constitution, becomes
void with respect to the exercise of any of the
fundamental rights, the inconsistent law is not
wiped out so far as the past act is concerned, for,
to say that it is, will be to give the law
retrospective effect. There is no. fundamental right
that a person shall not be prosecuted and punished
for an offence committed before the Constitution
came into force. So far as the past acts are
concerned the law exists, notwithstanding that it
does not exist with respect to the future exercise
of fundamental rights.
However, Justice Fazal Ali was of the view that
though there can be no doubt that Article 13(1)
will have no retrospective operation and
transactions which are past and closed, and rights
which have already vested will remain untouched.
However, with regard to inchoate matters which
were still not determined when the Constitution
came into force, and as regards proceedings not
begun, or pending at the time of enforcement of
the Constitution and not yet prosecuted to a final
judgment, the answer to this question would be
that the law which has been declared by the
Constitution to be completely ineffectual, can no
longer be applied. To be precise, paragraph no. 63
of the report from SCC Online referred has been
reproduced hereunder:
"There can be no doubt that Article 13(1) will have
no retrospective operation, and transactions which
are past and closed, and rights which have already
vested, will remain untouched. But with regard to
inchoate matters which were still not determined
when the Constitution came into force, and as
regards proceedings whether not yet begun, or
pending at the time of the enforcement of the
Constitution and not yet prosecuted to a final
judgment, the very serious question arises as to
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whether a law which has been declared by the
Constitution to be completely ineffectual can yet be
applied."
(iii) In the case of Behram Khurshed Pesikaka
(supra), a seven-judge Bench of this Court was
considering the legal effect of the declaration made
in the case of State of Bombay Vs. F.N.
Balsara58, whereby part of Section 13 clause (b)
of the Bombay Prohibition Act (Act 25 of 1949) was
declared unconstitutional. It was held by the
majority opinion that declaration of such provision
as invalid and unconstitutional will only mean that
it is inoperative and ineffective and thus
unenforceable.
(iv) The Constitution Bench in the case of M.P.V.
Sundararamier and Co. (supra) was dealing
with the validity of Sales Tax Laws Violation Act,
1956. In paragraph 41, while dealing with
difference between law being unconstitutional on
account of it being not within the competence of
the legislature or because it was offending some
constitutional restrictions differentiated between
the two. Relevant extract is reproduced here
under:
"41. Now, in considering the question as to the
effect of unconstitutionality of a statute, it is
necessary to remember that unconstitutionality
might arise either because the law is in respect of
a matter not within the competence of the
legislature, or because the matter itself being
within its competence, its provisions offend some
constitutional restrictions. In a Federal Constitution
where legislative powers are distributed between
different bodies, the competence of the legislature
to enact a particular law must depend upon
whether the topic of that legislation has been
assigned by the Constitution Act to that legislature.
Thus, a law of the State on an Entry in List 1,
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Schedule VII of the Constitution would be wholly
incompetent and void. But the law may be on a
topic within its competence, as for example, an
Entry in List II, but it might infringe restrictions
imposed by the Constitution on the character of
the law to be passed, as for example, limitations
enacted in Part III of the Constitution. Here also,
the law to the extent of the repugnancy will be
void. Thus, a legislation on a topic not within
the competence of the legislature and a
legislation within its competence but violative
of constitutional limitations have both the
same reckoning in a court of law; they are
both of them unenforceable. But does it follow
from this that both the laws are of the same
quality and character, and stand on the same
footing for all purposes? This question has been
the subject of consideration in numerous decisions
in the American Courts, and the preponderance of
authority is in favour of the view that while a law
on a matter not within the competence of the
legislature is a nullity, a law on a topic within its
competence but repugnant to the constitutional
prohibitions is only unenforceable. This distinction
has a material bearing on the present discussion. If
a law is on a field not within the domain of the
legislature, it is absolutely null and void, and a
subsequent cession of that field to the legislature
will not have the effect of breathing life into what
was a still-born piece of legislation and a fresh
legislation on the subject would be requisite. But if
the law is in respect of a matter assigned to the
legislature but its provisions disregard
constitutional prohibitions, though the law would
be unenforceable by reason of those prohibitions,
when once they are removed, the law will become
effective without re- enactment.
(emphasis supplied)"
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The distinction drawn was that where a law is not
within the domain of the legislature, it is absolutely
null and void. But where a law is declared to be
unconstitutional, then it would be unenforceable
and to that extent void, as per Article 13(2) of the
Constitution.
(v) The challenge in the case of Deep Chand
(supra) was with respect to the validity of the
Uttar Pradesh Transport Service (Development)
Act, 1955. The Constitution Bench, after discussing
merit of Article 13(2) of the Constitution, was of
the firm view that a plain reading of the Clause
indicates, without any reasonable doubt, that the
prohibition goes to the root of the matter and
limits the State's power to make law; the law
made in spite of the prohibition is a still born law.
The relevant extract which is part of the paragraph
13 (from the AIR reference), is reproduced
hereunder:
"13. ...A Legislature, therefore, has no power to
make any law in derogation of the injunction
contained in Art. 13. Article 13(1) deals with laws
in force in the territory of India before the
commencement of the Constitution and such laws
in so far as they are inconsistent with the
provisions of Part III shall, to the extent of such
inconsistency be void. The clause, therefore,
recognizes the validity of, the pre- Constitution
laws and only declares that the said laws would be
void thereafter to the extent of their inconsistency
with Part III; whereas cl. (2) of that article
imposes a prohibition on the State making laws
taking away or abridging the rights conferred by
Part III and declares that laws made in
contravention of this clause shall, to the extent of
the contravention, be void. There is a clear
distinction between the two clauses. Under cl. (1),
a pre-Constitution law subsists except to the
extent of its inconsistency with the provisions of
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Part III; whereas, no post-Constitution law
can be made contravening the provisions of
Part III, and therefore the law, to that
extent, though made, is a nullity from its
inception. If this clear distinction is borne in mind,
much of the cloud raised is dispelled. When cl. (2)
of Art. 13 says in clear and unambiguous terms
that no State shall make any law which takes
away or abridges the rights conferred by Part III, it
will not avail the State to contend either that the
clause does not embody a curtailment of the power
to legislate or that it imposes only a check but not
a prohibition. A constitutional prohibition
against a State making certain laws cannot be
whittled down by analogy or by drawing
inspiration from decisions on the provisions
of other Constitutions; nor can we appreciate
the argument that the words " any law " in the
second line of Art. 13(2) posits the survival of the
law made in the teeth of such prohibition. It is said
that a law can come into existence only when it is
made and therefore any law made in contravention
of that clause presupposes that the law made is
not a nullity. This argument may be subtle but is
not sound. The words " any law " in that clause can
only mean an Act passed or made factually,
notwithstanding the prohibition. The result of such
contravention is stated in that clause. A plain
reading of the clause indicates, without any
reasonable doubt, that the prohibition goes to the
root of the matter and limits the State's power to
make law; the law made in spite of the prohibition
is a still- born law.
(emphasis supplied)"
(vi) In the case of Mahendra Lal Jaini (supra),
again a Constitution Bench dealing with validity of
the U.P. Land Tenures (Regulation of Transfers)
Act, 1952 as also the amendment of 1956 in the
Forests Act, 1957 had the occasion to analyse the
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difference between Article 13(1) and 13(2).
Paragraph nos. 23 and 24 of the report contains
the relevant discussion. In paragraph No. 23, it
was laid down that the distinction between the
voidness in one case arises from the circumstance
that it was a pre- Constitutional law and the other
is post- Constitutional law. However, the meaning
of the word void is used in both the sub-Articles
clearly making the law ineffectual and nugatory,
devoid of any legal force or binding effect in both
the cases. Further in paragraph no. 24 of the
report, the Bench proceeds to deal with the effect
of an amendment in the Constitution, with respect
to the pre-Constitutional laws, holding that
removing the inconsistency would result in revival
of such laws by virtue of doctrine of eclipse as the
pre-existing laws were not still born. However, in
the case of the post-Constitutional laws, the same
would be still born, and as such doctrine of eclipse
would not be applicable to the post-Constitutional
laws. Doctrine of eclipse does not apply in the
present case, for Section 6A of the DSPE Act has
been struck down as unconstitutional. There is no
attempt to re-legislate this provision by removing
the illegality resulting in unconstitutionality. We
may beneficially reproduce paragraph nos. 23 and
24 of the said report hereunder:
"23. It is however urged on behalf of the
respondents that this would give a different
meaning to the word 'void" in Art. 13(1). as
compared to Art. 13 (2). We do not think so. The
meaning of the word "void" in Art. 13 (1) was
considered in Keshava Madhava Menon's case and
again in Behram Khurshed Pesikaka's case In the
later case, Mahajan, C. J., pointed out thatthe
majority in Keshava Madhava Menon's case (3)
clearly held that the word "void" in Art. 13(1) did
not mean that the statute stood repealed and
therefore obliterated from the statute book; nor
did it mean that the said statute was void ab initio.
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This, in our opinion if we may say so with respect,
follows clearly from the language of Art. 13(1),
which presupposes that the existing laws are good
except to the extent of the inconsistency with the
fundamental rights. Besides there could not be any
question of an existing law being void ab initio on
account of the inconsistency with Art. 13(1), as
they were passed by competent legislatures at the
time when they were enacted. Therefore, it was
pointed out that the effect of Art. 13(1) with
respect to existing laws insofar as they were
unconstitutional was only that it nullified them, and
made them "'ineffectual and nugatory and devoid
of any legal force or binding effect". The meaning
of the word "void" for all practical purposes is the
same in Art. 13(1) as in Art. 13(2), namely, that
the laws which were void were ineffectual and
nugatory and devoid of any legal force or binding
effect. But the pre- Constitution laws could not
become void from their inception on account of the
application of Art. 13(1) The meaning of the word
','void" in Art. 13 (2) is also the same viz., that the
laws are ineffectual and nugatory and devoid of
any legal force on binding effect, if they
contravene Art. 13(2). But there is one vital
difference between pre-Constitution and post-
Constitution laws in this matter. The voidness of
the pre-Constitution laws is. not from inception.
Such voidness supervened when the Constitution
came into force; and so, they existed and operated
for some time and for certain purposes; the
voidness of post-Constitution laws is from their
very inception and they cannot therefore continue
to exist for any purpose. This distinction between
the voidness in one case and the voidness in the
other arises from the circumstance that one is a
pre-Constitution law and the other is a post-
Constitution law; but the meaning of the word
void" is the same in either case, namely, that the
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law is ineffectual and nugatory and devoid of any
legal force or binding effect.
24. Then comes the question as to what is the
effect of an amendment of the Constitution in the
two types of cases. So far 'as pre-Constitution laws
are concerned the amendment of the Constitution
which removes the inconsistency will result in the
revival of such laws by virtue of the doctrine of
eclipse, as laid down in Bhikaji Narain's case (1)
for the pre-existing laws were not still-born and
would still exist though eclipsed on account of the
inconsistency to govern pre-existing matters. But
in the case of post-Constitution laws, they would
be still born to the extent of the contravention.
And it is this distinction which results in the
impossibility of applying the doctrine of eclipse to
post-Constitution laws, for nothing can be revived
which never had any valid existence. We are
therefore of opinion that the meaning of the word
"void" is the same both in Art 13 (1) and Art. 13
(2), and that the application of the doctrine of
eclipse in one case and not in the other case does
not depend upon giving a different meaning to the
word "void' in the two parts of Art. 13; it arises
from the inherent difference between Art.13 (1)
and Art. 13 (2) arising from the fact that one is
dealing with pre-Constitution laws, and the other is
dealing with post-Constitution laws, with the result
that in one case the laws being not still-born the
doctrine of eclipse will apply while in the other case
the laws being still born-there will be no scope for
the application of the doctrine of eclipse. Though
the, two clauses form part of the same Article,
there is a vital difference in the language employed
in them as also in their content and scope. By the
first clause the Constitution recognises the
existence of certain operating laws and they are
declared void, to the extent of their inconsistency
with fundamental rights. Had there been no such
declaration, these laws would have continued to
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operate. Therefore, in the case of pre- Constitution
laws what an amendment to the Constitution does
is to remove the shadow cast on it by this
declaration. The law thus revives. However, in the
case of the second clause, applicable to post
Constitution laws, the Constitution does not
recognise their existence, having been made in
defiance of a prohibition to make them. Such
defiance makes the law enacted void. In their case
therefore there can be no revival by an
amendment of the Constitution, MO though the bar
to make the law is removed, so far as the period
after the amendment is concerned. In the case of
post- Constitution laws, it would be hardly
appropriate to distinguish between laws which are
wholly void-as for instance, those which
contravene Art. 31-and those which are
substantially void but partly valid, as for instance,
laws contravening Art. 19. Theoretically, the laws
falling under the latter category may be valid qua
non-citizens; but that is a wholly unrealistic
consideration and it seems to us that such
nationally partial valid existence of the said laws
on the strength of hypothetical and pedantic
considerations cannot justify the application of the
doctrine of eclipse to them. All post Constitution
laws which contravene the mandatory injunction
contained in the first part of Art. 13 (2) are void,
as void as are the laws passed without legislative
competence, and the doctrine of eclipse does not
apply to them. We are therefore of opinion that the
Constitution (Fourth Amendment) Act cannot be
applied to the Transfer Act in this case by virtue of
the doctrine of eclipse It follows therefore that the
Transfer Act is unconstitutional because it did not
comply with Art. 31 (2), as it stood at the time it
was passed. It will therefore have to be struck
down, and the petitioner given a declaration in his
favour accordingly.
(emphasis supplied)"
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(vii) In the case of State of Manipur (supra),
recently a three-judge Bench of this Court, was
dealing with an appeal against the judgment of the
Manipur High Court which had declared the
Manipur Parliamentary Secretary (Appointment,
Salary and Allowances and Miscellaneous
Provisions) Act, 2012 (Manipur Act No. 10 of 2012)
as also the Repealing Act, 2018, as
unconstitutional. Justice L. Nageswara Rao,
speaking for the Bench, observed that where a
statute is adjudged to be unconstitutional, it is as if
it had never been and any law held to be
unconstitutional for whatever reason, whether due
to lack of legislative competence or in violation of
fundamental rights, would be void ab initio.
Paragraph Nos. 22 and 23 of the said judgment are
reproduced hereunder:
"22. Where a statute is adjudged to be
unconstitutional, it is as if it had never been.
Rights cannot be built up under it; contracts which
depend upon it for their consideration are void; it
constitutes a protection to no one who has acted
under it and no one can be punished for having
refused obedience to it before the decision was
made. Field, J. in Norton v. Shelby County,
observed that "an unconstitutional act is not law, it
confers no rights, it imposes no duties, it affords
no protection, it creates no office; it is, in legal
contemplation, as inoperative as though it had
never been passed".
23. An unconstitutional law, be it either due to lack
of legislative competence or in violation of
fundamental rights guaranteed under Part III of
the Constitution of India, is void" ab initio. In
Behram Khurshid Pesikaka v. State of Bombay, it
was held by a constitution bench of this Court that
the law-making power of the State is restricted by
a written fundamental law and any law enacted
and opposed to the fundamental law is in excess of
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the legislative authority and is thus, a nullity. A
declaration of unconstitutionality brought about by
lack of legislative power as well as a declaration of
unconstitutionality brought about by reason of
abridgement of fundamental rights goes to the root
of the power itself, making the law void in its
inception. This Court in Deep Chand v. State of
Uttar Pradesh & Ors. summarized the following
propositions:
"(a) Whether the Constitution affirmatively confers
power on the legislature to make laws subject-wise
or negatively prohibits it from infringing any
fundamental right, they represent only two aspects
of want of legislative power;
(b) The Constitution in express terms makes the
power of a legislature to make laws in regard to
the entries in the Lists of the Seventh Schedule
subject to the other provisions of the Constitution
and thereby circumscribes or reduces the said
power by the limitations laid down in Part III of the
Constitution;
(c) It follows from the premises that a law made in
derogation or in excess of that power would be ab
initio void...
(emphasis supplied)"
Further after discussing the law laid down by the
previous pronouncements, the principles were
deduced in paragraph no. 28 to state that a statute
declared unconstitutional by a court of law would
be still born and non est for all purposes.
Paragraph 28 of the report is reproduced
hereunder:
"28. The principles that can be deduced from the
law laid down by this Court, as referred to above,
are:
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I. A statute which is made by a competent
legislature is valid till it is declared unconstitutional
by a court of law.
II. After declaration of a statute as unconstitutional
by a court of law, it is non est for all purposes.
III. In declaration of the law, the doctrine of
prospective overruling can be applied by this Court
to save past transactions under earlier decisions
superseded or statutes held unconstitutional.
IV. Relief can be moulded by this Court in exercise
of its power under Article 142 of the Constitution,
notwithstanding the declaration of a statute as
unconstitutional.
(emphasis supplied)"
8. In a similar circumstance, the Division Bench of
this Court in W.P.No.3340/2020 c/w W.P.No.1002/2021
disposed of on 28.05.2021 in paragraphs 21, 22 and 23
has held as follows:
"21. Resultantly, the writ petition is dismissed. The
State Government is directed to consider the case
of the respondent on merits and to pass necessary
orders within a period of 60 days from the date of
receipt of certified copy of this order and the claim
of the respondent shall not be rejected on the
ground of delay and laches.
22. In the other connected matter ie., WP
No.1002/2021, the Tribunal has dismissed the
application filed by the petitioner by taking shelter
of Rule 3 of the Karnataka Civil Services
(Appointment on Compassionate Grounds) Rules,
1996.
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23. In the considered opinion of this Court, in the
light of the order passed in WP.No.3340/2020 as
this Court has held the married daughter to be
entitled to be considered for grant of
compassionate appointment, the present petition is
allowed. The order dated 3.1.2018 passed in
Application No.14/2018 by the Karnataka State
Administrative Tribunal, Bangalore, is set aside.
The State Government is directed to consider the
case of the petitioner on merits and to pass
necessary orders within a period of 60 days from
the date of receipt of certified copy of this order
and the claim of the petitioner shall not be rejected
on the ground of delay and laches. No order as
costs."
9. Therefore, it is very clear that in view of striking
down the word 'unmarried' in Rule 2(1)(a)(i), Rule
2(1)(b) and Rule 3(2)(i)(c) of the Rules 1996, it
becomes inoperative and ineffective and thus
unenforceable and therefore, it is obliterated from the
statute book.
10. In this fact scenario, the contention of the
Government Advocate that the judgment of this Court
passed in W.P.No.17788/2018 in the case of
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Smt.Bhuvaneshwari V Puranik (supra) is in prospective
operation, cannot be accepted.
11. In view of the above discussions, this Court is of
the considered opinion that the KSAT is not justified in
dismissing the application of the petitioner by upholding
the endorsement dated 28.03.2022 issued by the
respondent No.2 rejecting the claim of the petitioner for
her appointment on compassionate ground. Hence, the
order passed by the KSAT is unsustainable and is liable
to be set aside and endorsement dated 28.03.2022 is
liable to be quashed.
12. In the result, the following order is passed:
ORDER
a) The writ petition is allowed.
b) The order dated 13.10.2023 passed by the KSAT
in Application No.20744/2022, is hereby set
aside. Consequently, the endorsement dated
28.03.2022 issued by the respondent No.2, is
quashed.
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c) Respondents are directed to consider the case of
the petitioner for her appointment on
compassionate ground within a period of three
months from the date of receipt of copy of this
order, if she satisfies all other conditions.
Sd/-
JUDGE
Sd/-
JUDGE
DM
