Karnataka High Court
Noor Ahmed vs The State Of Karnataka on 22 June, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.6155/2019 (S-RES)
BETWEEN:
1. NOOR AHMED
S/O IMAM HUSSAIN SAB
AGED ABOUT 47 YEARS,
(WORKING AS POURAKAMIKA AT
JAGALURU PATTANA PANCHAYAT)
R/AT CHALLKERE ROAD, ASHWATH BADAVANE,
JAGALURU, DAVANAGERE DISTRICT.
2. J R KRISHNAMURHTY
S/O RAMAPPA
AGED ABOUT 46 YEARS,
(WORKING AS POURAKARMIKA AT
JAGALURU PATTANA PANCHAYAT
R/AT MANJUNATHA BADAVANE
OLD A K COLONY
JAGALUR, DAVANAGERE DISTRICT.
3. PARASAPPA
S/O CHOWDAPPA
AGED ABOUT 42 YEARS,
(WORKING AS POURAKARMIKA AT
JAGALURU PATTANA PANCHAYAT)
R/AT MANJUNATHA BADAVANAE
OLD A K COLONY, JAGALURU,
DAVANAGERE DISTRICT.
4. MALLAPPA
S/O SANNA DURUGAPPA
AGED ABOUT 47 YEARS,
(WORKING AS POURAKARMIKA AT
2
JAGALUR PATTANA PANCHAYAT)
R/AT OPPOSITE MARAMMA DEVASTHANA BADAVANE
JAGALURU, DAVANAGERE DISTRICT.
5. ANJINAPPA
S/O CHOWDAPPA
AGED ABOUT 34 YEARS,
(WORKING AS POURAKARMIKA AT
JAGALUR PATTANA PANCHAYAT)
R/AT MANJUNATHA BADAVANE, OLD A K COLONY
JAGALURU, DAVANAGERE DISTRICT.
6. RAMESH @ P SHIVAPPA
S/O VEERAPPA
AGED ABOUT 37 YEARS,
(WORKING AS POURAKARMIKA AT
JAGALUR PATTANA PANCHAYAT)
R/AT MANJUNATHA BADAVANE
JAGALURU, DAVANAGERE DISTRICT
7. BASAVARAJA
S/O RANGAPPA
AGED ABOUT 38 YEARS,
(WORKING AS POURAKARMIKA AT
JAGALUR PATTANA PANCHAYAT)
R/AT JCR BADAVANE,
CAMP- JAGALUR, DAVANAGERE DISTRICT.
8. SHIVANNA
S/O ANJINAPPA
AGED ABOUT 40 YEARS,
(WORKING AS POURAKARMIKA AT
JAGALUR PATTNA PANCHAYAT)
R/AT RASTE MACHIKERE,
JAGALURU, DAVANAGERE DISRICT.
9. P RAMACHANDRA
S/O PEDDAPPA
AGED ABOUT 42 YEARS,
(WORKING AS POURAKARMIKA AT
JAGALUR PATTANA PANCHAYAT)
R/AT JCR BADAVANE
3
JAGALURU, DAVANAGERE DISTRICT.
10. MALLESH @ MALLESHAPPA
S/O LATE YELLAPPA
AGED ABOUT 42 YEARS,
(WORKING AS POURAKARMIKA AT
JAGALUR PATTANA PANCHAYAT)
R/AT A K COLONY, JCR BADAVANE,
JAGALURU TOWN, DAVANAGERE DISTRICT.
... PETITIONERS
(BY SRI M.R.HIREMATHAD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA, DR AMBEDKAR VEEDHI
ANGALORE-1.
2. THE DIRECTOR
DIRECTORATE OF MUNICIAPL ADMINISTRATION
9TH FLOOR & 10TH FLOOR, VISHVESHWAAIAH TOWER
DR.B.R. AMBEDKAR VEEDHI
BANGALORE-560 001.
3. THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT
DAVANAGERE-577 001.
4. THE CHIEF OFFICER
JAGALURU PATTANA PANCHAYATI
JAGALURU-577528
DAVANAGERE DISTRICT.
... RESPONDENTS
(BY SRI D.C.PARAMESHWARAIAH, HCGP FOR R1 TO R3
SRI MARUTHI G.B., ADVOCATE FOR R4)
4
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
PROCEEDINGS/ORDER DATED 06.09.2018 PRODUCED AT
ANNEXURE-G PASSED BY THE R-3 IN SO FAR AS PETITIONERS
ARE CONCERNED AS WELL AS QUASH THE ENDORSEMENT OF
THE R-3 DATED 30.01.2018, PRODUCED AT ANNEXURE- K TO K-
9 HEREIN AND DIRECT THE RESPONDENT TO CONSIDER THE
REPRESENTATION MADE BY THE PETITIONER DATED 20.10.2018
PRODUCED AT ANNEXURE- J TO J-9 AND ETC.
THIS WRIT PETITION COMING ON ORDERS THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
The petitioners were stated to have been appointed as 'Pourakarmikas' (civil labour) by respondent No.4 in the office of the Pattana Panchayathi, Jagaluru in the year 2002. It is further submitted that they were working on ad-hoc basis and continued to work till their removal as per the order at Annexure- G dated 06.09.2018. It is further submitted that a policy decision was taken for filling up of posts of Pourakarmika as per the Government Order dated 07.08.2017 at Annexure- A. It is submitted that in terms of clause (D) "ªÉÄîÌAqÀ ¤AiÀĪÀÄUÀ¼A À vÉ gÁdåzÀ°è£À ªÀĺÁ£ÀUg À ¥ À Á°PÉUÀ¼ÀÄ (§ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUg À À¥Á°PÉ M¼ÀUÆ É AqÀAvÉ), £ÀUg À À¸À¨sÉ, ¥ÀÄgÀ¸¨ À sÉ ªÀÄvÀÄÛ ¥ÀlÖt ¥ÀAZÁ¬ÄwUÀ¼À°è ¥Àæ¸ÀÄv Û À SÁ° EgÀĪÀ ¥ËgÀPÁ«ÄðPÀgÀ ºÀÄzÉÝU¼ À £ À ÀÄß ¨sÀwð ªÀiÁqÀĪÀÅzÀÄ ºÁUÀÆ ¥Àæ¸ÀÄÛvÀ PÉëêÀiÁ©üªÀÈ¢Ý, ¢£ÀUÆ À °, UÀÄwÛU,É ¸ÀªÀiÁ£À PÉ®¸ÀPÉÌ ¸ÀªÀiÁ£À ªÉÃvÀ£À ªÀÄvÀÄÛ 5 ºÉÆgÀUÀÄwÛUÉ, DzsÁgÀzÀ ªÉÄÃ¯É PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÄÀ ªÀ vÁvÁÌ°PÀ ¥ËgÀPÁ«ÄðPÀjUÉ DzÀåvÉ ¤ÃqÀĪÀÅzÀÄ", the vacant posts of Pourakarmika in the Municipal Corporation and Town Municipal Corporation were to be filled up and where the employees were working on daily wage contractual basis and in other categories as indicated therein, preference was to be given to such employees in the process of recruitment. It is further submitted that as per the Notification at Annexure- B, guidelines were laid down relating to appointment of Pourakarmika reiterating the terms and conditions at Annexure-A. It is submitted that the appointment must be made on the basis of seniority and in the event of multiple applicants fulfilling the criteria, resort also to be had to lottery system in terms of clause (4) of the said Notification.
2. It is submitted that pursuant to Annexures- A and B, selection process was held and selection list came to be notified as per Annexure- E dated 18.07.2018. It is submitted that the only ground on which the petitioners' 6 application were rejected was that they were not working as 'Pourakarmikas'.
3. Learned counsel appearing for the petitioners submits that the selection and rejection list at Annexure- E itself details the date of joining of service of the petitioners at coloumn No.3 and the remark that "the petitioners were not working as Pourakarmikas" requires to be re-looked. It is further pointed out that as per the order of removal on 06.09.2018 at Annexure- G, the petitioners were shown as loaders/valvemen. It is submitted that though the petitioners were working as loaders/valvemen by virtue of Annexure- C dated 04.12.2017, there is a clarification that during the process of employing of Pourakarmika, the loaders and the cleaners who were working in Solid Waste Management Work are also to be treated as 'Pourakarmika' during the process of taking them on "out source basis". It is submitted that the petitioners were performing the work of Pourakarmikas and even as per the endorsement at Annexure- L series, all the petitioners were stated to be 7 working as 'loaders' by the respondents themselves. The petitioners submit that the policy decision at Annexure- C ought to have been taken note of while considering the eligibility of the petitioners in terms of Annexure- A and for filling up of posts subsequent there to.
4. Learned HCGP appearing for the State submits that the primary ground on which the petitioners' name have been deleted from the selection list is on the ground that the petitioners were not working as 'Pourakarmikas' and accordingly, though as per the order at Annexure- E they were working from 2002 onwards, which finds a mention in coloumn No.3 that as they were not working as Pourakarmikas, they were not considered for selection in terms of the scheme of recruitment pursuant to Annexures- A and B.
5. Insofar as the petitioners working as Assistant valvemen and loaders, the said aspect is not in dispute in light of the very order at Annexure- G which mentions the petitioners having worked and have been ordered for their 8 removal. The only point that would then remain is as to whether the petitioners stood excluded to claim the benefit under Annexures- A and B by virtue of their designation while rendering previous work in the Town Municipal Council. It is not in dispute that the petitioners though were given different designations, were performing the work of Pourakarmika and this would become clear from the letter of appointment at Annexure- Q relating to the petitioners wherein, it is clearly specified that the petitioners are also required to perform the work of cleaning of street and other work related to Solid Waste Management. The endorsement at Annexure- L series refers to the work of the petitioners as 'loaders'. Though, there appears to be some contradiction as regards the description of the post of the petitioners, the fact that they were employed in work relating to Solid Waste Management is not in dispute. The order of appointment at Annexure- Q dated 25.12.2002 describes the work of all petitioners as 'sweeping of waste, collection and transportation' while the work of petitioner No.1 is described as 'driver of the vehicle 9 which transports waste'. The preamble of such order reads that the petitioners have been appointed temporarily for the purpose of 'cleaning work'. The endorsements at Annexure- L series describes all the petitioners as 'loaders' and accordingly have not been considered for appointment. Considering the nature of work and the endorsement at Annexure- L, the petitioners could be construed to be 'loaders'.
6. Accordingly, it is to be noticed that the petitioners were performing the work of Pourakarmika though appointed as loaders/sweepers/driver of vehicle used to transport waste, in terms of the Notification at Annexure- C. Looking into the nature of work being performed, they are entitled to be construed as working as 'Pourakarmikas' and accordingly, petitioners are to be considered as being eligible for the benefit of recruitment at Annexures- A and B. The petitioners were senior to those who were selected as is self evident from the order of appointment at Annexure- E. Exclusion of petitioners as per 10 the order at Annexure- E is bad in law. At this point of time, it may not be appropriate to take note of the illegality in appointment of other persons who were junior to that of the petitioners. The only point that would remain is whether the case of the petitioners are required to be considered for appointment In terms of Annexures- A and B, as the petitioners have otherwise fulfilled other eligibility conditions, accordingly the respondents to consider their appointment insofar as available vacant posts are concerned.
7. Learned counsel appearing for the petitioners has produced Annexure- R, which asserts that 13 posts are remained vacant as on date. If that were to be so, the case of the petitioners who were otherwise illegally denied the benefit given to those who are already working having been selected as stipulated in Annexures- A and B ought to be considered for appointment as regards vacant posts.
8. Accordingly, rejection of the petitioners' application at Annexure- E is set aside. Case of the 11 petitioners to be considered in terms of Annexures- A and B as regards the selection process carried out culminating in Annexure- E insofar as vacant posts are concerned. The endorsements at Annexures- L1 to L9 are set aside. The proceedings at Annexure- G insofar as the petitioners names are found in the rejected list is set aside.
9. Accordingly, petition is disposed off. It is made clear that the age limit in Annexure- A is required to be relaxed in light of the matter pending before this Court and the case of the petitioners ought to be considered in terms of the discussion made above.
Sd/-
JUDGE PN