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2013 Supreme(Kar) 47
High Court of Karnataka
A.N. VENUGOPALA GOWDA, J.
Mrs. Radharani Mahadev Kolambe Belgaum
Versus
The State of Karnataka, rep. by its Secretary, Law, Justice & Human Rights Department & Others
Writ Petition No. 32858 of 2009 (S-RES)
Decided On : 16-01-2013
Advocate Appeared:
For the Petitioner:H. Subramanya Jois, Sr. Counsel for K.C. Shantkumar, Advocate.
For the Respondents: Raghavendra G. Gayatri, HCGP.
Headnote:LABOUR & SERVICES - Appointment: [A.N. Venugopala Gowda, J] Appointment to State Civil Service - Disqualification of a man who has more than one wife living and woman who has married a man already having another wife - Karnataka Civil Services (General Recruitment ) Rules, 1977, Rule 5 (2) - Karnataka Civil Services (Conduct) Rules, 1966, Rule 28 - Challenge as to - Held, Sub-rule (2) of Rule 5 of 1977 Rules, placing disqualification for appointment to State Civil service on man who has more than one wife living and woman who has married a man already having another wife is not violative of Articles 14, 15, 16 & 21 of the Constitution. Provision is intra vires the Constitution, being salutary and also in public interest, being also a social welfare measure.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 Sections 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 arbitrariness.
Section 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.
Right to appointment in Civil Service of the State is neither a fundamental right nor a common law right. What the Constitution guarantee for the citizens is equality of opportunity under the employment of the Government and the prohibition of discrimination between the citizens. Article 309 empowers the appropriate legislature to regulate the recruitment and also 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 impugned Rule does not contravene any Fundamental Rights guaranteed under part-III of the Constitution not does it cross the limits of reasonability. The disqualification as per the impugned Rule has been devised as a social measure to be inconformity with the criminal and family laws of the country.
1. 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 petitioner’s name appears at Sl.No.41. The Government received information regarding the marriage of the 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, petitioner’s case for appointment was rejected and her name was not included in the Notification bearing No.LAW 134 LAC 2008 dated 30 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 Rs.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.
"(1) To declare and strike down to Rule 5(2) of the K.C.S. (General Recruitment) Rules, 1977 as ultra vires the provisions of Articles 14, 15, 16(1) and 21 of the Constitution of 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 1st respondent;
(3) Direct the respondents to issue to the petitioner an order of appointment as a Civil Judge (Jr. Divn) in implementing of the Select List of candidates bearing Notification 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 the Karnataka Government Servants (Conduct) Rules, 1966;
(ii) It brings about a hostile discrimination between a citizen and a citizen and a civil servant, without any rational basis and inhibits a Hindu ineligible to be appointed to the State civil services, if he has more than one wife living and that, if such a person being woman, she cannot marry a person, 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 to Governmental sanction, the impugned Rule is opposed to Article 15 of the Constitution of India, for the same seeks to bring about a hostile discrimination between a man and a woman. Thus, discrimination on the basis of sex, similarly as discrimination on the basis of religion is forbidden.
(iv) It is unguided and does not contain or lay down any 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 operation of Rule 5(2) is always at the pleasure of the Government and only in cases where special grounds are available to do so, that the State and exempt the person from the operation of the Rule.
(ii) Granting of exemption from operation of the Rule to a person who has incurred disability being the sole prerogative of the State and the
