Karnataka High Court

Smt D Pushpa vs The Director (A And Hr) on 27 February, 2024

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                                                    NC: 2024:KHC:7950
                                                  WP No. 5605 of 2023




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 27TH DAY OF FEBRUARY, 2024

                                     BEFORE
            THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
                    WRIT PETITION NO. 5605 OF 2023 (S-RES)

            BETWEEN:

            SMT. D. PUSHPA,
            W/O LATE K.MURTHY,
            AGED ABOUT 35 YEARS,
            NO.3198, 2ND CROSS,
            RAJYOTSAVA NAGAR,
            KUMARASWAMY LAYOUT,
            BANGALORE - 560 078.
                                                         ...PETITIONER
            (BY SRI. SRINIVASA K, ADVOCATE)

            AND:

            1.    THE DIRECTOR (A & HR),
Digitally         KPTCL, KAVERI BHAVANA,
signed by         BANGALORE - 560 009.
ALBHAGYA
Location:   2.    THE GENERAL MANAGER (A & HR),
HIGH              BESCOM, K.R.CIRCLE,
COURT OF          BANGALORE - 560 001.
KARNATAKA
            3.    THE SUPERINTENDING ENGINEER (ELE),
                  BANGALORE SOUTH CIRCLE,
                  BESCOM, 14/3, 3RD FLOOR,
                  MAHARSHI ARAVINDA BHAVAN,
                  NRUPATHUNGA ROAD,
                  BANGALORE - 560 002.

            4.    THE EXECUTIVE ENGINEER (ELE),
                  BESCOM, O & M,
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                                                         NC: 2024:KHC:7950
                                                    WP No. 5605 of 2023




    JAYANAGAR DIVISION,
    BANASHANKARI 2ND STAGE,
    BANGALORE - 560 070.
                                                           ...RESPONDENTS
(BY SRI. VENKATESHA T S, ADVOCATE FOR R1 TO R4)

     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ENDORSEMENT BEARING DATED 14/12/2022
ISSUED BY R-4 VIDE ANNEXURE - M TO THE WP AND ETC.

    THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                                    ORDER

The captioned petition is filed seeking following

reliefs:

1. Issue a Writ of Certiorari quashing the impugned endorsement bearing No.PÁ¤E(«)/d«/ É/¸À É/10078-79 dated: 14/12/2022 issued by the 4th respondent vide Annexure-M to the writ petition.

2. Issue a Writ of mandamus directing the respondents to consider the application of the petitioner for appointment on compassionate ground as per Annexure-E to the writ petition and consequently direct the respondents to appoint the petitioner to a suitable post on compassionate ground.

3. Issue such other writ or order or direction that this Hon'ble Court may deems fit to pass under the facts and circumstances of the case, to meet the ends of justice and equity.

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2. Petitioner, who is the widow of deceased

employee of respondents - Corporation is before this Court

assailing the impugned endorsement issued by respondent

No.4 as per Annexure 'M', thereby declining to entertain

the application filed by the petitioner seeking employment

on compassionate grounds. The endorsement issued

indicating that the petitioner being a widow of

Probationary Mazdoor does not possess eligibility to seek

employment on compassionate grounds.

3. Heard learned counsel appearing for the

petitioner and learned standing counsel appearing for the

respondents-Corporation.

4. The issue relating to the rights of Probationary

Mazdoor is given quietus by the Co-ordinate Bench in host

of the judgments rendered in identical cases. To make out

a case on the said issue, the petitioner has placed on

record the judgments rendered by the Co-ordinate Bench

in identical cases. Perused the judgments, which are

placed on record at Annexures 'N' and 'P'. This Court while

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examining the identical issue as to whether the legal heir

of deceased Probationary Mazdoor is entitled to seek

appointment on compassionate grounds has taken

cognizance of the Regulation 6(4) of respondents-

Corporation. The Co-ordinate Bench while referring to

Regulation 5 was of the view that the husband of widow

therein, who was appointed as Probationary Mazdoor on

regular basis is entitled to claim benefit under the said

regulations. The Co-ordinate bench while rejecting the

contention of the respondents - Corporation held that the

legal heirs of Probationary Mazdoor are entitled to seek

employment on compassionate grounds subject to their

eligibility.

5. It would be useful for this Court to cull out

paragraph No.9, which reads as under:

" 9. It is relevant to note, the petitioner's husband late Hussenappa Paraki was appointed as a Gangman in the office of the Executive Engineer, GESCOM on 11.11.1999. After six years of service, the petitioner's husband was treated as probationary Mazdoor. On 16.2.2008 he died while in service. Thereafter, the

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petitioner gave representation to appoint her on compassionate ground. The respondents issued endorsement as per Annexure-F stating that the petitioner's husband was a probationary Mazdoor and the petitioner cannot be appointed on compassionate ground. It was challenged in W.P.No.60656/2012. This court considering the contention that the petitioner is not entitled for compassionate appointment has observed as follows at paras.5 to 8.

"5. It is the definite case of the respondent that under regulation 6(4) of the "regulations", the petitioner a dependent of the probationary Mazdoor is disentitled to appointment on compassionate grounds, while it is the case of the petitioner that her husband, when appointed as probationary Mazdoor on regular basis, is entitled to claim benefit under the said regulations.

Regulation 6 reads thus:

"6. Appointment by competent Authority:

(1) On receipt of the application under Regulation 5, the Head of the Office, if satisfied that the applicant fulfills all the conditions required under these Regulations, shall submit the application to the Board for its approval and upon receipt of the approval, shall issue appointment order if he is the appointing authority and if not, shall forward to the

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concerned authority for issuance of appointment order.

(2) The appointment under sub-regulation (1) shall be made as far as possible within three months from the date of receipt of the application under Regulation 5.

(3) Appointment once made under these regulations shall be final and no fresh appointment to a different post or higher post under these regulations shall be permissible.

(4) The appointment under these regulations shall not be made in the case of the dependent of a deceased person who at the time of death was on re-employment or was employed as casual labourer or on contract basis for a limited period or on adhoc appointment dehors the rules of recruitment."

6. Sub regulation(4) of Regulation 6, no doubt, disentitles the dependent of a deceased who, at the time of death was on re-employment or was employed as casual labourer or on contract basis for a limited period or on adhoc appointment dehors the rules of recruitment. (emphasis supplied)

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7. It is the case of the respondent that the petitioner's husband was employed as a probationary mazdoor, and not any one of the type of engagement dehors the rules of recruitment as set out in clause 6(4) of the "Regulation". In that view of the matter, it is too far fetched for the respondent to contend that petitioner, alleged dependent is disentitled to a compassionate appointment on the death of her husband a probationary Mazdoor.

8. The order Annexure-A and endorsement Annexure-B in the circumstances are unsustainable. Petitioner having made out a case for consideration of her application for compassionate appointment on the death of her husband deserves acceptance."

6. In the light of the view taken by the Co-

ordinate Bench, the petitioner, who is similarly placed, on

parity, is entitled to the relief sought in the captioned

petition. The endorsement issued by the respondents -

Corporation is found to be contrary to the finding recorded

by the Co-ordinate Bench in an identical case. Therefore,

this Court is of the view that the endorsement is not

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sustainable and is liable to be quashed. Hence, I proceed

to pass the following:

ORDER

(i) The writ petition is allowed;

(ii) The impugned endorsement bearing No.PÁ¤E(«)/d«/ É/¸À É/10078-79 dated:

14/12/2022 issued by the 4th respondent vide Annexure-M to the writ petition, is hereby quashed;

(iii) The respondents are hereby directed to consider the application of petitioner seeking employment on compassionate grounds by considering the representation in terms of regulations;