Download pdf - Smt Radharani Mahadev Kolambe v State of Karnataka

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/-