Karnataka High Court

Abdul Qadeer @ Khadeer Miyan vs The State Of Karnataka And Ors on 28 June, 2024

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                                                   NC: 2024:KHC-K:4384-DB
                                                           WP No. 203231 of 2022




                                 IN THE HIGH COURT OF KARNATAKA

                                        KALABURAGI BENCH

                              DATED THIS THE 28TH DAY OF JUNE, 2024

                                              PRESENT

                             THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
                                                AND
                               THE HON'BLE MR. JUSTICE RAJESH RAI K

                             WRIT PETITION NO.203231 OF 2022 (S-KAT)

                      BETWEEN:

                      ABDUL QADEER @ KHADEER MIYAN
                      S/O SRI MOHAMMED KHAJA,
                      AGED ABOUT 34 YEARS, OCC NIL,
                      R/O H.NO.5/1434, NEAR ESSOR PETROL PUMPO,
                      BULAND PARWAZ COLONY, KALABURAGI.

                                                                    ...PETITIONER
                      (BY SRI. LIYAQAT FAREED USTAD, AND
                          SRI. PEERAPPA S, ADVOCATES)

Digitally signed by
                      AND:
BASALINGAPPA
SHIVARAJ
DHUTTARGAON           1.   THE STATE OF KARNATAKA
Location: HIGH
COURT OF                   REP BY ITS SECRETARY TO GOVT,
KARNATAKA
                           REVENUE DEPARTMENT,
                           MS BUILDING, BANGALORE 01

                      2.   THE COMMISSIONER OF LAND
                           RECORDS AND SURVEY SETTLEMENT,
                           K.R CIRCLE, BENGALURU -560 001.

                      3.   JOINT DIRECTOR OF LAND RECORDS
                           KALABURAGI DIVISION,
                           KALABURAGI - 585 104.
                                   -2-
                                    NC: 2024:KHC-K:4384-DB
                                           WP No. 203231 of 2022




4.   THE TAHSILDAR
     KALABURAGI 585101.

                                                    ...RESPONDENTS
(BY SMT. MAYA T.R., H.C.G.P)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE THE WRIT IN NATURE OF CERTIORARI AND SET-ASIDE
THE ORDER DATED 17.06.2022 PASSED BY KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL AT KALABURAGI IN APPLICATION
NO.20568/2020 VIDE ANNEXURE -A.     ISSUE ANY OTHER
DIRECTIONS AS THIS HON'BLE COURT DEEMS FIT UNDER
FACTS AND CIRCUMSTANCES OF THE CASE.

     THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY RAJESH RAI K J., MADE THE
FOLLOWING:


                             ORDER

The petitioner in this writ petition assailed the order

dated17.06.2022 passed in application No.20568/2020 by

the Karnataka State Administrate Tribunal, Kalaburagi (for

short 'tribunal'), wherein the tribunal dismissed the

application filed by the petitioner on the ground of delay

and latches as well as on merits.

2. The brief facts leading rise to the filing of this

petition is that:

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The father of petitioner Sri.Mohammad Khaja

(hereinafter referred to as "Government Servant") was

serving as a peon in the office of Assistant Director of Land

Records, Kalaburagi and was a government servant. He

has three daughters and three sons in all six children. The

government servant had left the home on 12.03.1996 and

did not return and missing. Though the family members

were made several attempts to trace government servant,

he was not at all traced. In the meantime, the

departmental enquiry was instituted against the said

government servant and he was dismissed from service

vide order dated 26.07.1999 by the order of Deputy

Director of Land Records without issuing any notice of

enquiry to the government servant nor to his family about

the institution of enquiry proceedings. Though the

jurisdictional police have registered the FIR and made

their efforts to trace the said government servant, but no

avail and 'C' report was filed by the police on 02.10.2007.

Subsequently, wife of the government servant filed a suit

before the Civil Judge (Jr.Dn), Kalaburagi in

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O.S.No.336/2008 and obtained a decree on 19.06.2009 by

declaring that the husband of plaintiff is presumed to be

dead. Accordingly, the death certificate of the government

servant was issued on 18.08.2009. Thereafter, the family

members i.e., petitioner and other approached the

authority for release of family pension and DCRG. The said

request was dismissed by the authority. Against the same,

the wife of government servant approached the tribunal in

application No.20568/2020 and during the pendency of

the said application, the respondent-authority released the

pensionary benefits vide order dated 30.06.2016.

Thereafter, the said application came to be dismissed vide

order dated 09.09.2017. Since the government servant

had been considered to be dead while in service, the

petitioner submitted an application for his appointment on

compassionate grounds on 28.04.2017 to respondent No.4

i.e. Tahsildar, Kalaburagi. The same was forwarded to

respondent No.2 by the Tahsidar and respondent No.2 has

issued an endorsement dated 26.03.2018 intimating that

the petitioner was a minor at the time of death of

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government servant and hence the application for

appointment on compassionate grounds cannot be

considered. Aggrieved by the same, the petitioner

approached the tribunal. After considering the material

available on record, the tribunal dismissed the application

both on delay and latches so also on merits. Challenge to

the same is lis before this Court.

3. Heard the learned counsel for petitioner and

also learned HCGP for respondents.

4. It is the primary contention of the learned

counsel for the petitioner that since the father of petitioner

died during the course of his service and the competent

civil Court declared his death in O.S.No.336/2008, the

respondent-authority ought to have considered the

request of the petitioner for appointment on

compassionate grounds. He would also contend that

absolutely there is no source of income to lead their

livelihood. Hence, on that ground also they are entitled for

appointment on compassionate grounds.

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5. Per contra, learned HCGP submits that though

the endorsement issued by the respondent No.2, the same

was challenged before the tribunal in the year 2020 by

filing an application No.20568/2020, as such there is an

inordinate delay of more than two years in approaching

the tribunal. Hence, the tribunal has rightly dismissed the

application on the ground of delay and latches. She also

contends that petitioner was minor at the time of death of

his father and as per the Rule 5 of The Karnataka Civil

Services (Appointment on Compassionate Grounds) Rules,

1996, the petitioner does not comes under the same.

Hence, on that ground also the tribunal has rightly

dismissed the application.

6. Having heard the learned counsel for the parties

and having perused the order passed by the tribunal, the

only point that arises for our consideration is:

"Whether the tribunal is justified in rejecting the application filed by the petitioner and requires any interference by this Court?

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7. As could be seen from the records, though

father of the petitioner was missing from the year 1996

and the Civil Court has granted a decree of declaration

that declaring that he has presumed death in

O.S.No.336/2008. Nevertheless, it is by admitted fact by

the petitioner that he was minor at the time of death of his

father. Hence, as per Rule 5 of The Karnataka Civil

Services (Appointment on Compassionate Grounds) Rules,

1996, which reads as follows:,

"5. Application for appointment.-Every dependent of a deceased Government servant, seeking appointment under these rules shall make an application within one year from the date of death of the Government servant, in such form, as may be notified by, the Government, from time to time, to the Head of the Department under whom the deceased Government servant was working:

[Provided that in the case of a minor he must have attained the age of eighteen years within one year from the date of the death of the Government servant and he must make an application within one year thereafter:] Provided further that nothing in the first proviso shall apply to an application made by

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the dependent of a deceased Government servant, after attaining majority and which was pending for consideration on the date of commencement of the Karnataka Civil Services (Appointment on Compassionate Grounds) (Amendment) Rules, 1998.]."

8. On perusal of the above rule, it is clear that the

petitioner was not eligible for appointment on

compassionate grounds. Further the petitioner has also

failed to place such materials before the tribunal to

substantiate his claim that his family is under financial

distress and they are not having sufficient source of

income to their livelihood. As held by the Hon'ble Apex

Court in the catena of judgments, appointment on

compassionate grounds cannot be claimed as a matter of

right by the family members and it is only a concession. In

such circumstances, we are of the considered view that

the tribunal has rightly dismissed the application. We find

no good grounds to interfere with the order passed by the

tribunal. Accordingly, we answer the above raised point in

the negative.