Karnataka High Court
Ningappa vs State Of Karnataka on 10 September, 2018
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
WRIT PETITION NOS.31765-31843/2018 (S-RES)
BETWEEN
1.NINGAPPA
S/O. MALLAPPA BADIGER,
AGED ABOUT 30 YEARS,
STAFF NURSE,
2.KUBERA. B
S/O. BASAVARAJAPPA,
AGED ABOUT 30 YEARS,
STAFF NURSE,
3.SRI. NAGARAJ
S/O. SHARANAPPA,
AGED ABOUT 29 YEARS,
STAFF NURSE,
4.ARUNA. K
D/O. KADIRAPPA,
AGED ABOUT 27 YEARS,
STAFF NURSE,
5.ROOPA. Y. D.
D/O. DOODANAIK,
AGED ABOUT 28 YEARS,
STAFF NURSE,
6.BHAGYALAKSHMI. H. N.
W/O. KUMAR. S,
AGED ABOUT 32 YEARS,
2
STAFF NURSE,
7.KAVITHA. R
W/O. MANJUNATHA. D,
AGED ABOUT 28 YEARS,
STAFF NURSE,
8.VIJAYAKUMARA. G. N.
S/O. NAGANNA,
AGED ABOUT 30 YEARS,
STAFF NURSE,
9.DURGAPPA PADASALI
S/O. BHIMAPPA,
AGED ABOUT 31 YEARS,
STAFF NURSE,
10.RAMESH
S/O. MANIKAPPA,
AGED ABOUT 29 YEARS,
STAFF NURSE,
11.GEETHAMMA. D
W/O. PRASANNA KUMAR. T,
AGED ABOUT 34 YEARS,
STAFF NURSE,
12.SHAMSHAD BEGUM WALIKAR
W/O. MAHEBOOB SAB,
AGED ABOUT 35 YEARS,
STAFF NURSE,
13.SHRUTHI. N
D/O. NAGAPPA,
AGED ABOUT 26 YEARS,
STAFF NURSE,
14.MALATHI. T
D/O. THIPPE SWAMY.T,
AGED ABOUT 24 YEARS,
3
STAFF NURSE,
15.MANJULA Y. A.
D/O. ASHWATHAPPA,
AGED ABOUT 25 YEARS,
STAFF NURSE,
16.GEETHA B. S.
D/O. SOMANNA. B. K.,
AGED ABOUT 29 YEARS,
STAFF NURSE,
17.LAKSHMI DEVI. G
W/O. C. MALLAPPA,
AGED ABOUT 24 YEARS,
STAFF NURSE,
18.POORNIMA M. T.
D/O. THIMMAPPA GOWDA,
AGED ABOUT 30 YEARS,
STAFF NURSE,
19.HONNAMMA. B
W/O. BORANNA,
AGED ABOUT 32 YEARS,
STAFF NURSE,
20.SHOBHA. H. K.
W/O. SOMASHEKAR. S
AGED ABOUT 29 YEARS,
STAFF NURSE,
21.KEMPAMMA. N
D/O. NARASIMHA MURTHY,
AGED ABOUT 26 YEARS,
STAFF NURSE,
22.MANGALAMMA. T
D/O. THIPPE SWAMY,
AGED ABOUT 30 YEARS,
STAFF NURSE,
4
23.UMADEVI. R
D/O. RANGANATHA,
AGED ABOUT 25 YEARS,
STAFF NURSE,
24.SOUJANYA. S
W/O. PRASANNA KUMAR. K,
AGED ABOUT 24 YEARS,
STAFF NURSE,
25.KAVITHA. Y. A.
D/O. ASWATHAPPA,
AGED ABOUT 28 YEARS,
STAFF NURSE,
26.VISHALAKSHI. B
D/O. B. R. CHOWDARY,
AGED ABOUT 37 YEARS,
STAFF NURSE,
27.SAVITHA. R
D/O. RAMACHANDRAPPA,
AGED ABOUT 25 YEARS,
STAFF NURSE,
28.SANDHYA. D
D/O. DINESH,
AGED ABOUT 21 YEARS,
STAFF NURSE,
29.YALLAVVA. H
D/O. MAHADEVA,
AGED ABOUT 23 YEARS,
STAFF NURSE,
30.PRASHANTH. G
S/O. GOVINDA NAIK,
AGED ABOUT 29 YEARS,
STAFF NURSE,
5
31.SARASWATHI. A
D/O. APPAJI GOWDA,
AGED ABOUT 26 YEARS,
STAFF NURSE,
32.RADHA. D. T.
D/O. THIPPESWAMY,
AGED ABOUT 24 YEARS,
STAFF NURSE,
33.ASHARANI. K
D/O. KARIYAPPA,
AGED ABOUT 26 YEARS,
STAFF NURSE,
34.GIREESHA. L
S/O. LATE LINGA RAJE GOWDA,
AGED ABOUT 30 YEARS,
STAFF NURSE,
35.SHRUTHI. M. C.
D/O. CHANDRAPPA,
AGED ABOUT 25 YEARS,
STAFF NURSE,
36.RASHMI. B. M.
D/O. MANJE GOWDA,
AGED ABOUT 25 YEARS,
STAFF NURSE,
37.BASAVARAJA
S/O. HANUMAPPA ILAL,
AGED ABOUT 30 YEARS,
STAFF NURSE,
38.N. M. DEEPIKA
D/O. MOHAN NAIK,
AGED ABOUT 25 YEARS,
STAFF NURSE,
6
39.VASUNDARA. N
D/O. NANJUNDAPPA,
AGED ABOUT 27 YEARS,
STAFF NURSE,
40.RAJESH C. DODDAMANI
S/O. CHANDRASHEKAR,
AGED ABOUT 29 YEARS,
STAFF NURSE,
41.VANAJAKSHI C
D/O CHINNAPPA
AGED ABOUT 25 YEARS
STAFF NURSE
42.GANGAMANI B R
W/O SANJAY C
AGED ABOUT 31 YEARS,
STAFF NURSE
43.RAJESHWARI T S
D/O SIDDARAMAIAH
AGED ABOUT 27 YEARS,
STAFF NURSE
44.MANGALAGOWRAMMA G C
D/O CHALUVAIAH
AGED ABOUT 27 YEARS,
STAFF NURSE
45.SHAMSHIRA BANU
D/O BASHA SAB
AGED ABOUT 25 YEARS,
STAFF NURSE
46.LAKSHMI DEVI K
W/O OBANNA B
AGED ABOUT 28 YEARS
STAFF NURSE
7
47.KALAVATHI D R
D/O RAMAPPA T
AGED ABOUT 29 YEARS,
STAFF NURSE
48.SHASHIKALA T N
D/O PANDURANGE GOWDA
AGED ABOUT 29 YEARS,
STAFF NURSE
49.SWETHA C R
D/O. REVANNA C K,
AGED ABOUT 24 YEARS
STAFF NURSE,
50.YASHODHA U R
D/O. U D RAJU,
AGED ABOUT 25 YEARS
STAFF NURSE,
51.RANJITHA R
D/O. RANGAIAH T,
AGED ABOUT 24 YEARS
STAFF NURSE,
52.SAVITHA
D/O. MURTHY,
AGED ABOUT 31 YEARS
STAFF NURSE,
53.SHEWATHA K
D/O. KAREKALLAPPA,
AGED ABOUT 25 YEARS
STAFF NURSE,
54.PRABHA M C
D/O. CHANNE GOWDA,
AGED ABOUT 28 YEARS
STAFF NURSE,
WORKING IN KIDWAI CANCER
8
55.SHUBHA G
D/O. ANNAPURNA,
AGED ABOUT 27 YEARS
STAFF NURSE,
56.SHOBHA R K
W/O. NAVEEN P,
AGED ABOUT 40 YEARS
STAFF NURSE,
57.KAMALAMMA C
D/O CHIKARANGAPPA,
AGED ABOUT 38 YEARS
STAFF NURSE,
58.NETHRAVATHI J
D/O JAGGAPPA,
AGED ABOUT 29 YEARS
STAFF NURSE,
59.SAMPATH KUMARI N
D/O NARASIMAIAH,
AGED ABOUT 27 YEARS
STAFF NURSE,
60.ASHRITHA D.K.
D/O DAKAPPA,
AGED ABOUT 23 YEARS
STAFF NURSE,
61.BHEEMAKKA
D/O ANJNAPPA,
AGED ABOUT 31 YEARS
STAFF NURSE,
62.SOWMYA SUDHA N.R.
W/O BALASUBRAMANYAM,
AGED ABOUT 29 YEARS
STAFF NURSE,
9
63.ARUN V
S/O A.R.VENKATESHAIAH,
AGED ABOUT 27 YEARS
JUNIRO MEDICAL LAB TECHNOLOGIST,
64.NAVEEN KUMAR C.H.
S/O HUCHAIAH C.H.,
AGED ABOUT 25 YEARS
LAB TECHNICIAN,
65.VISHWANATH
S/O C.ANATHA REDDY,
AGED ABOUT 30 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST,
66.OBANNA B
S/O BORAIAH,
AGED ABOUT 37 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST,
67.NAGARAJU.S
S/O SIDDACHAR,
AGED ABOUT 42 YEARS
JUNIOR MEDICAL LABA TECHNOLGIST,
68.MAHANTESH MATH
S/O IRAYYA,
AGED ABOUT 26 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST,
69.SARASWATHI
D/O MALLAPPA,
AGED ABOUT 28 YEARS
JUNIRO MEDICAL LAB TECHNOLOGIST,
70.VIKAS KUMAR N.S.
S/O SIDDARAMAYYA,
AGED ABOUT 28 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST,
10
71.DARASHAN KUMAR A.R.
S/O RAMACHANDRAPPA,
AGED ABOUT 28 YEARS
JUNIOR MEDICAL LAB TECHNOLGIST
72.SWAPNA RAMESH
D/O YESUPATHAM
AGED ABOUT 32 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST
73.DEEPA N
D/O NARAYAN V
AGED ABOUT 30 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST
74.SRINIVAS K
S/O KRISHNAMURTHY V
AGED ABOUT 29 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST
75.GOURISH HOSAMANI
S/O ASHOK HOSAMANI
AGED ABOUT 27 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST
76.GEETA VITTAL MANTOOR
D/O VITTAL MANTOOR
AGED ABOUT 27 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST
77.HARISH P V
S/O VENKATESH P
AGED ABOUT 29 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST
78.JAYASHREE HEGDE
D/O GANAPATHI HEGDE
AGED ABOUT 29 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST
11
79.MAMATHA B B
D/O BASAPPA B
AGED ABOUT 25 YEARS
JUNIOR MEDICAL LAB TECHNOLOGIST
...PETITIONERS
(By SRI M R SHAILENDRA, ADVOCATE)
AND
1.STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
MEDICAL EDUCATION DEPT
M S BUILDING
DR AMBEDKAR VEEDHI
BANGALORE-560001
2.THE DIRECTOR OF MEDICAL
EDUCATION IN KARNATAKA
ANANDA RAO CIRCLE
BANGALORE-560009
3.KIDWAI CANCER INSTITUTE/
KIDWAI MEMORIAL
INSTITUTE OF ONCOLOGY
DR M H MARIGOWDA ROAD
BANGALORE-560029
REP.BY ITS DIRECTOR,
4.KARNATAKA EXAMINATION AUTORITY
REPRESENTED BY ITS SECRETARY/
EXECUTIVE DIRECTOR
18TH CROSS
MALLESHWARAM
BANGALORE-560003
... RESPONDENTS
(BY SRI E.S.INDRESH, AGA FOR R1 & R2;
BY SRI C.SESHACHALA, SENIOR ADVOCATE FOR
SRI ARAVIND V CHAVAN, ADVOCATE FOR C/R3; &
SRI N.K.RAMESH, ADVOCATE FOR R4)
12
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ENDORSEMENT DATED 2.7.2018
ISSUED BY R-3 AT ANENX-K; DIRECT THE RESPONDENTS
TO GRANT THE BENEFIT OF RELAXATION OF AGE AND
WEIGHTAGE OF SERVICE FOR EACH OF SERVICE
RENDERED ON CONTRACT BASIS BY THE PETITIONER IN
THE R-3 INSTITUTION BEFORE SELECTION TO THE POST
OF STAFF NURSES AND TECHNICALS PURSUANT TO THE
NOTIFICATION DATED 22.5.2018 VIDE ANNEX-C;
THESE WRIT PETITIONS COMING ON FOR ORDERS
TODAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners have filed these petitions to quash the endorsement bearing No.KCI/EST/2R/170/2018-19 dated 02.07.2018 issued by third respondent at Annexure-K and direct the respondents to grant benefit of age relaxation and weightage of service for their service.
2. Petitioners claim that they are working for respondent No.3 as Staff Nurses and Lab Technicians on contract basis through independent contractors from last three to ten years. Petitioners have been discharging their duties continuously till date and they 13 claim that they are entitled for age relaxation and preference should be given, while making general recruitment.
3. This being the case, respondent No.3 has issued recruitment notification vide No.KCI/EST- 1512018-19 dated 22.05.2018 for recruitment of 251 posts of Staff Nurses and 9 posts of Junior Lab Technologists and other posts. The petitioners made representation for considering their service by giving weightage and age relaxation to apply for the posts, which was not considered by the respondents. In order to fortify their case, petitioners have relied upon a judgment passed in similar circumstances in the case of Ningappa and others V/s. State of Karnataka and others in W.P.No44054-44226/2017 dated 21.06.2018 and also in W.A.No.5127/2012 and connected matters between The Karnataka Residential Educational Society V/s. Sri.Siddaraju.S and others dated 28.02.2015, 14 wherein a direction was given to the respondents to provide service weightage. The petitioners also refer to the judgment reported in ILR 1998 KAR 271 between C K Shivegowda and others V/s. Kidwai Memorial Institute of Oncology and others in which similar direction was given to consider service weightage i.e., Nurse or any staff working for any hospital or any healthcare under State to be provided weightage for them. Despite these orders and Government notifications placed before respondent No.3, respondent No.3 rejected the claim and issued an endorsement dated 02.07.2018 vide Annexure-K. Hence, petitioners are before this Court for the relief sought for.
4. Learned counsel for the respondents opposes the petitions and referred to the judgment reported in (2006) 4 SCC 1 between Secretary, State of Karnataka and others V/s.Umadevi and others in which the petitioners are not entitled to service 15 weightage. On the other hand, said judgment was for regularisation of service of temporary employees. The learned counsel for respondents would support the impugned action of respondent No.3 in issuing endorsement dated 02.07.2018 at Annexure-K and prays for dismissal of these writ petitions.
5. It is submitted that these petitioners were not appointed by any regular recruitment process. On the other hand, they were engaged into services as Trainee Nurses and Trainee Lab Technicians on contract basis. Entry of the petitioners into the institute is neither by following due procedure of appointment through advertisement or following the Rules of Kidwai in their appointment. Further, their Ad-hoc appointment is also not against any permanent vacancy. During service of the petitioners, there were no sanctioned posts. But thereafter, a recruitment notification has been issued and posts have been 16 sanctioned by the Government and the petitioners are seeking for age relaxation and weightage, since they have rendered several years of service on the third respondent-institution.
6. Learned Senior Counsel refers to the judgment of the Division Bench of this Court and submitted that, where initial appointment itself is illegal and entry into service is a back door entry, they are not entitled for any preferences in selection. The Division Bench had rejected the plea of the petitioners in that particular case. Hence, endorsement made by respondent No.3 is in terms and compliance of the order of Division Bench.
7. Learned Senior counsel further submitted that judgment of Hon'ble Supreme Court in the case of Sachivalaya Dainik Vetan Bhogi V/s.
State of Rajasthan and others and connected matters reported in 2017 11 SCC 421 it is held that it 17 was agreement between tenderer and trainees to apply for the vacant posts in response to the tender notification and on the basis of that judgment was rendered. This judgment of Hon'ble Supreme Court is not applicable to the facts and circumstances of this case. Hence, learned Senior Counsel prays to dismiss these writ petitions.
8. Learned counsel also referred to the judgment reported in 2005 AIR Kant R 1507 in the case of Dr.T.Prathap and others V/s State of Karnataka by its Principal Secretary and others, it is held that the employees appointment on contract basis even though they continued for longer period, they do not become members of service unless their appointment is according to the rules.
9. Learned counsel further submits that these petitioners were engaged or taken into service not in accordance with any provisions of law and they are not 18 entitled for special treatment by giving service weightage. They also made applications pursuant to the notification issued calling for appointment and participated in the interview. Such being the case it is nothing but estoppel. Hence, learned Government Advocate prays to dismiss the petitions. Further, it is also submitted that the prayer made by the petitioners is contrary to the law and against the Articles of 226 and 227 of Constitution of India.
10. Learned counsel for respondent No.4 submits that some of the petitioners are entered into selection process in view of the interim order granted by this Court. The outcome of these petitions will be a basis to the outcome of the writ petitions filed by them in WP.No.27719-733/2018.
11. I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.
19
12. It is case of the petitioners that they are working for respondent No.3-insittuion for quite a long time i.e., from three to nine years which is disputed in this case. Regularisation of service is the issue involved in these petitions. Petitioners seek for service weightage and extend the service benefit.
13. Learned Senior counsel referred to the judgment in WP.No.44054-44226/2017 and connected matters, wherein it is held that the petitioners to submit their fresh representation. But this judgment is of no use, since, no direction was issued to the respondents to extend the service benefits. Further, in the judgment of Division Bench of this Court in W.A.No.5127/2012 and connected matters it is discussed in para-19 that 'if the initial entry into service is not back door entry, it is considered for weightage'.
20
14. On perusal of these judgments, it is clear that there is no direction to the respondents and it depends on each case to extend the benefit as per the provisions of law. Hence, the contention of the petitioners that they are entitled for the benefit sought for, cannot be accepted. Though the petitioners have gained service experience at respondent No.3- institution, gaining experience cannot be claimed for service weighatage since it is violation of Article 14 of Constitution of India. Article 14 says "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth". Article 16(1) of Constitution of India says "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State"
21
15. Under these circumstances, if the weightage is given to the petitioners, who are not appointed as per the provisions of Rules and Regulations or through any Notification, it is violation of Articles 14 and Articles 16(1) of Constitution of India. What is to be found out is whether the relief is coming under purview of law and provisions of Constitution of India. Whatever may be the judgments of the Courts, ultimately Constitution of India is the law of this land. It has to fit in all the angles. Otherwise, it will be a wrong precedent if mandatory provisions of the Constitution are diluted.
16. Under these circumstances, it is clear that extension of service weightage depends upon each case. Merely serving for some time may not be sufficient unless the recruitment is according to established rules as against an employment notification so as to be entitled for service weightage.
22
17. Considering these provisions, the respondents have issued endorsement Annexure-K dated 02.07.2018 in which they have stated as follows;
"The petitioners had been appointed as Trainee Nurses and Trainee Lab Technicians on contract basis. Their initial entry into service was not in accordance with the relevant recruitment rules; neither have they been appointed after a proper competition with prior advertisement among qualified persons, with a through scrutiny of their qualifications, reservations roaster and over all eligibility. These persons have hardly worked on a continuous basis in the Kidwai Cancer Institute. These persons have also not been appointed to any permanent post. 200 posts of staff nurses were created vide Government order No.HFW 66 KVM 2016 only on 07.04.2018. Therefore, these persons cannot claim a march over others."
18. This view is in consonance with the law declared by the Hon'ble Supreme Court in Secretary, 23 State of Karnataka V/s. Umadevi (2006) 4 SCC 1, where it is held as under;
"Therefore, consistent with the scheme for public employment, this court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end, at the end of the contract, if it were an engagement of appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made Permanent on the expiry of this term of appointment. It has to be clarified; that merely because a temporary employee or a casual Wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular Service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a 24 due process of selection as envisaged by the relevant rules."
19. In addition to this endorsement, learned Senior counsel submits that for fair and proper selection of 200 posts, notification has been issued and this work has been entrusted to Karnataka Examination Authority which is an independent body in order to maintain transparency in selection process, which is based on merit and applicable reservation norms of the Government. Hence, steps taken by respondent No.3 cannot be termed as error or an illegality.
20. In the light of the above, it is pertinent to observe that it is the duty of the authorities while making selection they should follow fair, reliable and proper process, as per rules and regulations of recruitment.
25
21. Hence, I do not find any error in issuing the endorsement at Annexure-K by the respondent No.3. All the contentions raised by the petitioners are rejected.
Accordingly, writ petitions are rejected. Respondent No.4 is directed to finalize the recruitment process and in accordance with law.
Sd/-
JUDGE SB