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7/27/2019 Smt Radharani Mahadev Kolambe v State of Karnataka
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IN THE HIGH COURT OF KARNATAKA AT BANGALOREDATED THIS THE 16th DAY OF JANUARY, 2013
BEFORE
THE HONBLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.32858/2009 (S-RES)
BETWEEN:
Smt. Radharani Mahadev Kolambe,Aged 33 years,
D/o. Mahadev Kolambe,R/o. Door No.53/11B, 6th Cross,
Shahunagar,Belgaum 590 010.
... PETITIONER(By Sri H. Subramanya Jois, Sr. counsel for
Sri K.C. Shantkumar, Adv. )
AND:
1. The State of Karnataka,
Represented by its Secretary,Law, Justice and Human Rights
Department, Vidhana Soudha,Bangalore 560 001.
2. The High Court of Karnataka,Bangalore 560 001,Represented by its Registrar General.
3. The Civil Judges (Junior Division),Selection Committee,
High Court of Karnataka,High Court Buildings,
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Bangalore 560 001,
Represented by the Registrar General.... RESPONDENTS
(By Sri Raghavendra G. Gayatri, HCGP)
This writ petition is filed under Article 226 of the
Constitution of India, praying to call for the records anddirect the respondents to issue to the petitioner an order
of appointment as a Civil Judge (Jr.Dn.) in implementing ofthe select list of candidates bearing Notification dated 6th
June 2009 vide AnnexureA expeditiously and without lossof further time.
This petition coming on for hearing this day, the
Court made the following:
O R D E R
In response to a Notification No.CJRC-1/2006 dated
1st April 2006, inviting applications for recruitment to the
posts of Civil Judges (Junior Division), in accordance with
the Karnataka Judicial Services (Recruitment) Rules, 2004,
the petitioner, an advocate, submitted application. The
petitioner was successful in the written examination and
was subjected to Viva-voce test. The select list of 232
candidates vide Annexure-A having been published, the
petitioners name appears at Sl.No.41. The Government
received information regarding the marriage of the
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petitioner with a married man already having another wife
and thereby attracting Sub Rule (2) of Rule 5 of the
Karnataka Civil Services (General Recruitment) Rules,
1977 (for short the Rules), which disqualifies such a
candidate for being appointed to the State Civil Service.
Consequently, petitioners case for appointment was
rejected and her name was not included in the Notification
bearing No.LAW 134 LAC 2008 dated 30th September
2008, as at Annexure-B, issued in exercise of the powers
conferred by Article 234 of the Constitution of India, by His
Excellency, the Governor of Karnataka, appointing 223
persons selected under the Karnataka Judicial Service
(Recruitment) Rules, 2004 as Civil Judges (Junior Division)
in the Karnataka Judicial Service, in the pay scale of
`9,000-14,550. Petitioner having submitted a
representation dated 13.5.2009, as at Annexure-D, an
endorsement dated 15.9.2009, as at Annexure-E having
been issued, rejecting her candidature on the ground that
there is violation of Rule 5(2) of the Rules, this writ
petition has been filed to grant the following reliefs.
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(1) To declare and strike down to Rule 5(2) of theK.C.S.(General Recruitment) Rules, 1977 as ultravires theprovisions of Articles 14, 15, 16(1) and 21 of the Constitutionof India and also as inconsistent with the provisions of the
Karnataka Government Servants (Conduct) Rules 1966;
(2) Quash an endorsement bearing No.LAW 134 LAC
2009 dated 15.9.2009 vide Annexure-E, issued by the 1strespondent;
(3) Direct the respondents to issue to the petitioner anorder of appointment as a Civil Judge (Jr. Divn) inimplementing of the Select List of candidates bearingNotification No.CJRC-1/2006, dated 6th June 2009 vide
Annexure-A .
2. Petitioner has challenged the constitutional
validity of Sub-Rule(2) of Rule 5 of the Rules, which
provides for disqualification for appointment. The main
grounds of challenge are;
(i) It is inconsistent with the provisions of theKarnataka Government Servants (Conduct) Rules, 1966;
(ii) It brings about a hostile discrimination between
a citizen and a citizen and a civil servant, without anyrational basis and inhibits a Hindu ineligible to be appointedto the State civil services, if he has more than one wife livingand that, if such a person being woman, she cannot marry aperson, who already has wife living;
(iii) Keeping in view the provision Rule 5(2) of the
Rules and the Karnataka Government Servants (Conduct)Rules, 1966 permitting bigamous marriages subject toGovernmental sanction, the impugned Rule is opposed toArticle 15 of the Constitution of India, for, the same seeks to
bring about a hostile discrimination between a man and a
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woman. Thus, discrimination on the basis of sex, similarlyas discrimination on the basis of religion is forbidden.
(iv) It is unguided and does not contain or lay downany yardstick for granting an exemption envisaged therein.
3. The State has justified the impugned provision,
by filing statement of objections. It has been stated that;
(i) Granting exemption to a person from the operationof Rule 5(2) is always at the pleasure of the Government andonly in cases where special grounds are available to do so,
that the State can exempt the person from the operation ofthe Rule.
(ii) Granting of exemption from operation of the Rule toa person who has incurred disability being the soleprerogative of the State and the petitioner having been found
to be undeserving for grant of such exemption and therebeing no special ground in the case of the petitioner,entailing her for such special treatment, the respondentsdeclined to extend the benefit of the proviso, to thepetitioner.
(iii) The Rule has been made for just cause with thesole objective of ensuring that the people of high morality areappointed to State Civil Services and the classification madeunder the Rule is to serve an objective purpose and istherefore valid.
(iv) The Rule was framed with the sole aim of achievingan objective purpose, class of persons to be governed by theRule is very well defined, the yardstick employed inclassifying the well defined group of people is just and
reasonable and the Rule has general application to all thepersons who suffer the peculiar disqualification.
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4. Sri H.Subramanya Jois, learned senior counsel, in
support of the prayers made in the writ petition contended
as follows:
(i) Sub Rule (2) of Rule 5 of the Rules is ultravires theprovisions of Articles 14, 16 and 21 of the Constitution ofIndia, apart from being inconsistent with the provisions ofthe Karnataka Government Servants (Conduct) Rules, 1966.
(ii) That the impugned Rule, keeping in view theproviso under Rule 5 (2) of the Rules and the Karnataka
Government Service (Conduct) Rules, 1966 permittingbigamous marriages subject to Governmental sanction, isunconstitutional, the same being opposed to Article 15 of theConstitution of India, for, the same seeks to bring about a
hostile discrimination between a man and a woman and thatsuch discrimination is forbidden in law;
(iii) Alternatively, in view of the facts andcircumstances which the petitioner has narrated in detail inher representation dated 13.5.2009 (Annexure-D), it was,but, necessary that the proviso to Rule 5(2) of the Rulesought to have been applied and failure to do so has infected
the endorsement, as at Annexure-E.
5. Sri Raghavendra G. Gayatri, learned HCGP, on
the other hand contended that;
(i) There is always a presumption of constitutionalityarising in favour of a statute and the onus to prove its
invalidity lies on the person who assails the same.
(ii) The Government is the best Judge of the needs ofthe particular classes and estimates the degree of evil so as
to adjust its legislation accordingly.
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(iii) The disqualification for appointment prescribed inthe Rules is permissible and the same is neither arbitrarynor discriminatory.
(iv) There being no challenge with regard to thecompetence to frame the Rule, the impugned Rule havingbeen made for a just cause, with the sole objective ofensuring that the people of high morality are appointed tothe State Civil Services, the impugned Rule is
constitutionally valid.
(v) Denial of appointment to the petitioner is in thelight of Rule 5(2) of the Rules, as the petitioner has acquireddisability for appointment to State Civil Service - KarnatakaJudicial Service, by virtue of marrying a man who is alreadymarried and has a wife living.
6. The grounds of challenge can be categories into;
(i) The provision is arbitrary and violates Article 14of the Constitution;
(ii) The disqualification does not serve the purpose
sought to be achieved by the Rules;
(iii) The provision is discriminatory and violates
Articles 15 and 16 of the Constitution;
(iv) The provision adversely affects the liberty ofleading personal life and violates Article 21 of theConstitution.
7. Keeping in view the record of writ petition and
the rival contentions, the points for determination are:
(1) Whether Rule 5(2) of the Karnataka CivilServices (General Recruitment) Rules, 1977 is arbitrary,
irrational and violative of Articles 14, 15, 16 and 21 of theConstitution?
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(2) Whether the rejection of the candidature of the
petitioner for the post of Civil Judge (Junior Division) isjustified?
Re-Point No.1:
8. Article 309 of the Constitution empowers the
appropriate legislature to regulate the conditions of service
of persons serving the Union or a State, as the case may
be, by an enactment subject to the provisions of the
Constitution. The competence of the State Legislature in
enacting the Rule is not under challenge. The relevant
portion of the Rule is reproduced below for ready
reference;
5.Disqualification for appointment
(1) No person shall be eligible for appointment to a
State Civil Service unless he is.-
(a) to (e) xxxxxx
(2) No man who has more than one wife living and no
woman who has married a man already having another wife,
shall be eligible for appointment to a State Civil Service:
Provided that the Government may, if satisfied that
there are special grounds for doing so, exempt any person
from the operation of this sub-rule.
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The impugned provision, placed in plain words,
disqualifies a man who is married and has a wife living and
a woman who married a man already having another wife
living, for appointment to State Civil Services.
9. Rule 28 of the Karnataka Civil Services (Conduct)
Rules, 1966 having relevance, the same reads as follows:
28. Bigamous marriage-
(1) No Government servant who has a wife living shallcontract another marriage without first obtaining thepermission of the Government notwithstanding that suchsubsequent marriage is permissible under the personal lawfor the time being applicable to him.
(2) No female Government servant shall marry anyperson who has a wife living without first obtaining the
permission of the Government.
10. It is trite that, Article 14 of the Constitution
forbids classification. However, it does not forbid
reasonable classification for the purpose of legislation. To
satisfy the constitutional test of permissibility, two
conditions must be satisfied, namely;
(i) That the classification is founded on an intelligible
differentia which distinguishes persons or things that aregrouped together from others left out of the group, and;
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(ii) That such differentia has a rational relation to theobject sought to be achieved by the statute in question.
11. The classification in the instant case is well
defined. A married man who has more than one wife living
and a woman who has married a man already having
another wife, are clearly distinguishable from a man
having married but not having a wife living, and, a woman
who having married a man having no wife living. The two
constitute two different classes and the classification is
founded on an intelligible differentia clearly distinguishing
one from the other. Main object sought to be achieved by
the legislation is giving effect to the provisions under
Ss.494 and 495 of IPC. The disqualification enacted by the
provision seeks to achieve the object by bringing in people
of high morality not having committed any crime
amounting to bigamy or polygamy into State Civil service.
The provision has also sought to achieve the objects
sought to be achieved in the family laws applicable to the
citizens. The classification does not suffer from any
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arbitrariness. The provision would serve the purpose of the
Rule as mandated by the Constitution and the other laws.
12. There is always a presumption in favour of the
Constitutionality of an enactment. Where a party seeks to
impeach the validity of a Rule on the ground such Rule
offends Article 14 of the Constitution, the burden is on
such person who attacks the statutory provision. The
legislature is in the best position to understand and
appreciate the needs of the people as enjoined by the
Constitution. It is relevant to notice the ratio of law laid
down by the Apex Court in the case of Mohd. Hanif
Quareshi and others vs. State of Bihar, AIR 1958 SC 731:
15. . The classification, it has been held, may be
founded on different bases, namely, geographical, or
according to objects or occupations or the like and what is
necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration.
The pronouncements of this Court further establish,
amongst other things, that there is always a presumption infavour of the constitutionality of an enactment and that the
burden is upon him, who attacks it, to show that there has
been a clear violation of the constitutional principles. The
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Courts, it is accepted, must presume that the Legislature
understands and correctly appreciates the needs of its own
people, that its laws are directed to problems made manifest
by experience and that its discriminations are based on
adequate grounds.
13. Article 15(1) of the Constitution says, the State
shall not discriminate against the citizen on grounds only of
religion, race, caste, sex, place of birth or any of them. Thus,
while religion, race, caste, sex, place of birth may furnish a
legitimate basis for classification for the purposes of Article
14, so far as citizens are concerned, Article 15(1) forbids
a classification on the ground onlyof religion, race, caste,
sex, place of birth or any of them. The distinction between
Articles 14 and 15 has been noticed and made clear by the
Apex Court, in the case ofKathi Raning Rawat Vs. State of
Saurashtra, AIR 1952 SC 123. It has been held as follows:
All legislative differentiation is not necessarily
discriminatory. In fact, the work discrimination does not
occur in Article 14. The expression discriminate against is
used in Article 15(1) and Article 16(2) and it means,
according to the Oxford Dictionary, to make an adverse
distinction with regard to; to distinguish unfavourably from
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others. Discrimination thus involved an element of
unfavourable bias and it is in that sense the expression has
to be understood in this context. If such bias is disclosed
and is based on any of the grounds mentioned in Articles 15
and 16, it may well be that the statute will, without more,
incur condemnation as violating a specific constitutional
prohibition unless it is saved by one or other of the provisos
to those Articles. But the position under Article 14 is
different. Equal protection claims under that Article are
examined with the presumption that the State action is
reasonable and justified. This presumption of
constitutionality stems from the wide power of classification
which the Legislature must, of necessity, possess in making
laws operating differently as regards different groups of
persons in order to give effect to its policies.
14. From the word onlyappearing in Article 15, it is
clear that discrimination forbidden by Article is
discrimination based solely on the basis of religion etc.,
and no other grounds. If discrimination is based on other
grounds as well, then Article 15(1) does not violate the
statute, as is clear from the enunciation of law in the case
ofAnjali Roy Vs. State of West Bengal, AIR 1952 Calcutta
825, wherein, it has been held as follows:
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Of paramount importance in clause (1) are the words
discrimination and only. What the article forbids is
discrimination and discrimination based solely on all or any
of the grounds mentioned in the Article. All differentiation is
not discrimination, but only such differentiation as is
invidious and as is made, not because any real difference in
the conditions or natural difference between the persons
dealt with makes different treatment necessary, but because
of the presence of some characteristic or affiliation which is
either disliked or not regarded with equal favour but which
has no rational connection with the differentiation made as a
justifying reason. Next, the discrimination which is
forbidden is only such discrimination as is based solely on
the ground that a person belongs to a particular race or
caste or professes a particular religion or was born at a
particular place or is of a particular sex and on no other
ground. A discrimination based on one or more of thesegrounds and also on other grounds is not hit by the Article.
15. S.494 IPC has introduced monogamy, which is
essentially voluntary union of life of one man with one
woman and vice versa, to the exclusion of all others. The
provision indicates that, neither party must have a spouse
living at the time of marriage. Polygamy brings with it
misery, plight and ignominy to a woman. S.4 of Hindu
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Marriage Act nullifies and supersedes the practices of
polygamy, hypergamy, all over the country among the
Hindus. S.494 IPC is intended to achieve the laudable
object of monogamy. The Rule in question also is intended
to achieve the laudable object of monogamy.
16. The offence under S.495 IPC is an aggravated
form of bigamy provided in S.494 IPC. It provides that, if
a person who committed the offence defined under S.494
IPC, conceals to the person with whom the second
marriage is contracted the fact of former marriage, such
person is liable to be punished, as provided therein.
17. In Sarla Mudgal Vs. Union of India - (1995) 3
SCC 635, Apex Court has judicially noticed it being
acclaimed in the United States of America that the practice
of polygamy is injurious to public morals, even though
some religions may make it obligatory or desirable for its
followers, the Apex Court has held that, polygamy can be
superseded by the State just as it can prohibit human
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sacrifice or the practice of sati in the interest of public
order.
18. In Mohd. Ahmed Khan Vs. Shah Bano Begum -
(1985) 2 SCC 556, the Apex Court was confronted with a
canvassed conflict between the provisions of S.125 Cr.P.C.,
and Muslim personal law. The question was; when the
personal law makes a provision for maintenance to a
divorced wife, the provision for maintenance under S.125
Cr.P.C., would run in conflict with the personal law. The
Constitution Bench has laid down two principles; firstly,
the two provisions operate in different fields and,
therefore, there is no conflict, and secondly, even if there
is a conflict it should be set at rest by holding that the
statutory law will prevail over the personal law of the
parties, in cases where they are in conflict.
19. In State of Bombay Vs. Narasu Appa Mali AIR
1952 Bom 84, constitutional validity of the Bombay
Prevention of Hindu Bigamous Marriages Act (25 of 1946)
was challenged on the ground of violation of Articles 14,
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15 and 25 of the Constitution. Considering the contentions
urged, it has been held that,
sharp distinction must be drawn between religious
faith and belief and religious practices. What the State
protects is religious faith and belief. If religious practices
run counter to public order, morality or health or a policy of
social welfare upon which the State has embarked, then the
religious practices must give way before the good of the
people of the State as a whole.
20. Rule 21 of the Central Civil Services (Conduct)
Rules, 1964 restrains any government servant having a
living spouse from entering into or contracting a marriage
with any person. Similar provisions can be found in
several service rules framed by the States, governing the
conduct of their civil servants. Rule 28 of Karnataka Civil
Services (Conduct) Rules 1966 is also to the same effect.
21. In the case ofJaved and others Vs. State of
Haryana and others, (2003) 8 SCC 369, popularly known
as two-child norm case, Apex Court has dealt with problem
of increasing population, the danger which it poses to the
progress of the nation and equitable distribution of its
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resources and upheld the validity of the Haryana
Legislation, imposing a disqualification on persons having
more than two children from contesting for a legislative
office. The constitutional validity of two-child norm as
legislatively prescribed and a departure there-from
resulting in attracting applicability of disqualification for
holding an elective office was upheld as intra vires the
Constitution. It was held that the disqualification is
attracted no sooner a third child is born and is living after
two living children and merely because the couple has
parted with one child by giving it away in adoption, the
disqualification does not come to an end.
22. Right to Appointment in Civil Service of the
State is neither a fundamental right nor a common law
right. What the Constitution guarantees for the citizens is
equality of opportunity under the employment of the
Government and the prohibition of discrimination between
the citizens. Article 309 of the Constitution empowers the
appropriate legislature to regulate the recruitment and also
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the conditions of service of persons serving under the
Union or a State, as the case may be, by an enactment,
subject to the provisions of the Constitution. Right to
appointment is a right conferred by a statute and the same
cannot be equated with a fundamental right. There is
nothing wrong in the statute which confers the right to
seek appointment to a post in State Civil Service, also to
provide for the disqualification. The right to appointment
to a post in the Civil Service of the State is a pure and
simple statutory right. Statutory rights can be subject to
statutory limitations, as is clear from the ratio of decision in
the case ofJyoti Basu and others Vs. Debi Ghosal and
others - (1982) 1 SCC 691. In my opinion, the impugned
Rule does not contravene any Fundamental Rights
guaranteed under part -III of the Constitution nor does it
cross the limits of reasonability. The disqualification as per
the impugned Rule has been devised as a social measure
to be in conformity with the criminal and family laws of the
country.
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23. The Muslim Law permits marrying four women.
The personal law does not mandate it as a duty. In fact,
by enacting Rule 28 in the Karnataka Civil Services Rules,
the State Government has forbidden a Government
servant to marry a second time without the permission of
the Government. The petitioner herein being a Hindu,
cannot be granted permission by the Government to marry
a man already having another wife living, because her
personal law forbids such a marriage.
24. In the case ofBadruddin Vs. Aisha Begum, 1957
Allahabad Law Journal 300, it has been held that though
the personal law of Muslims permitted having as many as
four wives, but it could not be said that having more than
one wife is a part of religion. It has been further held that
neither it is made obligatory of religion nor it is framed by
conscience.
25. In Ram Prasad Seth Vs. State of U.P. (1957) 2
LLJ 172, it has been held, that the act of performing a
second marriage during the lifetime of ones wife cannot be
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regarded as an integral part of Hindu religion nor could it
be regarded as practicing or professing or propagating
Hindu religion.
26. In view of the above, sub-rule (2) of Rule 5 of
the Rules, placing disqualification for appointment to State
Civil Service on a person who has more than one wife
living and a woman who has married a man already having
another wife, is not violative of Articles 14, 15, 16 and 21
of the Constitution of India. The provision is intra vires the
Constitution, being salutary and also in public interest,
being also a social welfare measure.
Re.PointNo.(2):
27. From Annexure-C, it is clear that the petitioner
married Gopala B Patil and has given birth to a male child
by name Anurag. First marriage of petitioners husband
has ended in a divorce. He married one Smt. Shobha B
Lagade, through whom he has 3 children. Smt. Shobha B
Lagade and her 3 children are residing separately.
Thereafter, Gopala B Patil married Smt.Mathura, elder
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sister of the petitioner and out of the said wedlock has 3
children, who are residing with him. Smt.Mathura is alive
and is living with the petitioners husband. The petitioners
marriage with Gopala B Patil was solemnized on
16.8.2002. In Annexure-D, a communication sent by the
petitioner to the Secretary to the Government, Department
of Law, Justice and Human Rights, she denied having
knowledge of the first and second marriages of her
husband as on the date of her marriage with him and also
till a long time after her marriage. However, she has not
denied the marriage of her sister Smt. Mathura and 3
children out of the said wedlock. Since the petitioner has
not denied her marriage with Gopala B Patil, who has a
wife living-Smt.Mathura, sub-rule (2) of Rule 5 being
attracted, the petitioner has incurred the disqualification
for appointment to State Civil Service. Consequently,
respondents are justified in issuing the endorsement dated
15.9.2009, as at Annexure-E and rejecting her candidature
to the post of Civil Judge (Jr.Dn.)
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In view of the foregoing, the writ petition being
devoid of merit is dismissed, with no orders as to costs.
Sd/-
JUDGE
Ksj/-