Karnataka High Court
Shri. Prashant S/O Madhukar Naik vs Union Of India on 9 November, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2023:KHC-D:13141-DB
WP No. 104946 of 2023
C/W WP No. 104948 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
WRIT PETITION NO. 104946 OF 2023 (S-CAT)
C/W
WRIT PETITION NO. 104948 OF 2023 (S-CAT)
IN WP.NO. 104946/2023
JAGADISH BETWEEN:
TR SHRI. PRASHANT S/O. MADHUKAR NAIK,
AGE: 44 YEARS, OCC.
R/O. CHENDIA PO.,
Digitally signed
by JAGADISH T TQ. KARWAR-581324.
R - PETITIONER
Date: 2023.11.18 (BY SRI. MAHESH WODEYAR, ADVOCATE)
11:13:43 +0530
AND:
1. UNION OF INDIA,
REP. BY ITS SECRETARY,
MINISTRY OF DEFENCE (NAVY),
GOVERNMENT OF INDIA,
NEW DELHI-110001.
2. HEAD QUARTERS,
WESTERN NAVAL COMMAND,
SAHID BHAGAL SING ROAD,
MUMBAI-400023.
3. HEAD QUARTERS,
KARNATAKA NAVAL AREA,
NAVAL BASE, KARWAR-581308.
- RESPONDENTS
(BY SRI. VENKATESH M. KHARVI, A.S.G.I.)
THIS WRIT PETITION IS FILED U/A 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER DATED 13.01.2023 PASSED BY THE CAT BENGALURU BENCH
IN O.A.NO.170/00075/2020 VIDE ANNEXURE-A & ETC.
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NC: 2023:KHC-D:13141-DB
WP No. 104946 of 2023
C/W WP No. 104948 of 2023
IN WP.NO. 104948/2023
BETWEEN:
SHRI. MAHESH S/O. KRISHNA HARAKANTRA,
AGE. 40 YEARS, OCC.
R/O. 506, HEAD BUNDER ROAD,
SHASHIHITTAL PQ,
TQ. KUMTA-581343.
- PETITIONER
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND:
1. UNION OF INDIA,
REP. BY ITS SECRETARY,
MINISTRY OF DEFENCE (NAVY),
GOVERNMENT OF INDIA,
NEW DELHI-110001.
2. THE FLAG OFFICER COMMANDING IN CHIEF (FOR CCPO)
WESTERN NAVAL COMMAND, MUMBAI 40001.
3. HEAD QUARTERS,
WESTERN NAVAL COMMAND
SAHID BHAGAT SINGH ROAD,
MUMBAI-400023.
4. HEAD QUARTERS,
KARANATAKA NAVAL AREA,
NAVAL BASE, KARWAR 581308
- RESPONDENTS
(BY SRI. VENKATESH M. KHARVI, ASGI)
THIS WRIT PETITION IS FILED U/A 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO, I) A WRIT OR DIRECTION IN
THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER
DATED. 13.01.2023 PASSED BY THE CAT BENGALURU BENCH IN O.A
NO. 170/00073/2020 VIDE ANNEXURE-A & ETC,
THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, S.SUNIL DUTT YADAV J., MADE THE
FOLLOWING:
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NC: 2023:KHC-D:13141-DB
WP No. 104946 of 2023
C/W WP No. 104948 of 2023
ORDER
W.P.No.104946/2023 and W.P.No.104948/2023 arise from same factual matrix and raise identical legal questions and accordingly are taken up together and disposed off by a common order.
2. The petitioners have filed the present writ petitions seeking to quash the order of the Central Administrative Tribunal, Bangalore Bench, Bengaluru (for short 'CAT') passed in O.A. No. 170/00075/2020 in which he had sought for appointment for the post of Tindal of Lascar in pursuance of the provisional selection. The CAT had rejected the applications while holding that the said posts had been filled up by promotion pursuant to the orders in the other O.As by other employees. The said order came to be challenged in the present writ petition.
3. Before the Tribunal the petitioner had filed an application seeking to consider the case of the applicant/petitioner to be appointed for the post of Tindal Lascar at NSRY, Karwar in pursuance of the Provisional Selection List at Annexure-A3. The recruitment notification for the said post was issued in October, 2013.
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NC: 2023:KHC-D:13141-DB WP No. 104946 of 2023 C/W WP No. 104948 of 2023
4. During the pendency of such recruitment procedure, it is stated that Singuru Murali Krishna and Dinesh K. Kittappa had filed original applications 349/2016 and 350/2016 seeking promotion from Lascar First Class to Tindal of Lascar. The said applications came to be disposed off on 17.11.2016 and 20.12.2016 recording the assurance of the Department that the posts would not be filled up till regular decision was taken by the Departmental Promotion Committee (DPC). Directions were passed to the Department to convene the DPC and pass orders. Thereafter, it is made out from the facts that DPC was convened and posts were filled up. Accordingly, in light of the filling up of vacancies by way of promotion the recruitment process that was kept in abeyance did not progress to the stage of issuance of appointment orders. On such reasons made out the CAT had rejected the application of the employees.
5. After hearing the matters for some time learned counsel for the petitioner has filed a memo which reads as follows:
"1. Petitioner has filed the above writ petition challenging the legality and validity of the order dated 13.01.2023 passed by the CAT Bengaluru in O.A. No. 170/00075/2020 whereby -5- NC: 2023:KHC-D:13141-DB WP No. 104946 of 2023 C/W WP No. 104948 of 2023 the CAT has dismissed the application filed by the petitioner herein.
2. It is submitted that during the pendency of the above writ petition petitioner herein submitted application under RTI Act requesting the respondent No.3 to furnish the details of the vacancy available after filled-up through promotion as per the order passed in OA No.349/2016 and 350/2016. The respondent No.3 has furnished information regarding availability of vacancies vide letter dated 15-09-2023 and the same is produced here with for the kind perusal of this Hon'ble court. As per the information vacancies are available as on today for the appointment to the post of Tindal of Lascar. Hence petitioner restricts his prayer in the writ petition as follows, Therefore it is respectfully prayed that this Hon'ble court may kindly be pleaded to " issue a writ or order or direction in the nature of mandamus ,direction to the respondents to consider the appointment of the petitioner for the post of Lascar of Tindal at NSRY, Karwar in pursuance of his provisional selection, in the existing vacancies in the interest of justice and equity."
6. A submission is made that the prayer is restricted to issuance of direction to the respondents to consider appointment of the petitioner for the post of Tindal of Lascar pursuant to the provision selection in lieu of existing vacancies. -6-
NC: 2023:KHC-D:13141-DB WP No. 104946 of 2023 C/W WP No. 104948 of 2023
7. Along with the said memo, response under the 'Right to Information Act' has been filed and relevant query and information furnished at column no. B reads as follows:
(b) At present how many unfilled At present vacancies are as vacancies are available for tindal follows:-
of lascer and greaser post Tindal of Lascar:- (Category wise).
SC ST OBC UR Total 03 02 05 06 04
8. Accordingly it is submitted that even as on date insofar as both the applicants who are the petitioners herein they belonged to 'OBC' Category, they are five vacancies for the said post. Accordingly, it is submitted that the writ petitions may be disposed of by issuing appropriate direction.
9. Statement of objections have been filed by the respondents.
10. Heard both the sides.
11. Insofar as the order of the CAT the reasoning applied is on the premise that vacancies were filled up by promotional posts and hence were not available to be filled. The Tribunal has observed that the recruitment process would have to be made subject to filling up of posts by way of promotion. While -7- NC: 2023:KHC-D:13141-DB WP No. 104946 of 2023 C/W WP No. 104948 of 2023 the reasoning of the Tribunal cannot be faulted, however in light of the information placed regarding vacancies this court is of the view that respondents may be directed to consider the case of the petitioner as is permissible as against available vacancies.
12. During the pendency of the present proceedings as noticed above, there are still five vacancies for the said post that are available.
13. No doubt, the right of appointment is not indefeasible right which is a settled position of law however, the Constitution Bench of the Apex Court in the case of SHANKARSAN DAS v. UNION OF INDIA1 has observed that the State cannot act arbitrarily.
14. Observation at Para 7 of the said judgment reads as follows:
7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under 1 (1991) 3 SCC 47 -8- NC: 2023:KHC-D:13141-DB WP No. 104946 of 2023 C/W WP No. 104948 of 2023 no legal duty to fill up all or any of the vacancies.
However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759], or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 :
(1985) 1 SCR 899] .
15. In light of the memo filed all that could be stated is that the respondents to consider as to whether the appointment of petitioners could be considered as regards existing vacancies. Accordingly, the writ petitions are disposed off while making it clear that the consideration ordered above is as is permissible under law and is a decision to be taken at the end of the respondents.
Sd/-
JUDGE Sd/-
JUDGE bvv List No.: 1 Sl No.: 11