Karnataka High Court
Subhas Fakkirappa Mushannavar vs The Registrar on 24 November, 2021
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION No.81728/2013 (S - RES)
Between
Subhas Fakkirappa
Mushannavar, Age 55 years,
Occ: Peon, Finance
Dept. Karnataka University Dharwad
Dharwad. ...Petitioner
(By Sri Laxman T Mantagani, Advocate)
And
The Registrar
DPAR Section
Karnataka University
Dharwad. ... Respondent
(By Sri Mallikarjun Hiremath, Advocate (appeared through VC))
This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to quash the impugned
endorsement vide Annexure-G dated 24.2013 issued by the
respondent and etc.,.
This writ petition coming on for hearing this day, the Court
passed the following:
2
ORDER
In pursuance of the notification dated 5.10.2002 issued by the respondent, petitioner submitted an application to consider his case for appointment to the post of peon. However, he was not considered for appointment to the post of peon on the ground that he has not secured any marks in the interview conducted by the respondent - University, which resulted in petitioner filing WP No.8736/2003. This Court by order dated 18.6.2007 allowed the writ petition and further directed the respondent - University to consider the application of the petitioner for appointment to the post of peon on the basis of the marks obtained by him in qualifying examination.
2. Pursuant to the order passed by this Court, the respondent - University again rejected the claim of the petitioner for appointment to the post of peon on the ground that he has not secured any marks in the interview, which again resulted in petitioner filed WP No.20202/2007. This Court by order dated 4.3.2009 allowed the writ petition and directed the respondent - University to consider the application submitted by the petitioner 3 to the post of peon on the basis of the marks obtained by him in the fourth standard without reference to the marks obtained in the interview. The case of the petitioner for appointment to the post of peon was not considered. Hence, petitioner was constrained to file a contempt petition in CCC (Civil) No.2052/2010. During the pendency of the contempt petition, the respondent - University issued an order of appointment in favour of the petitioner appointing him to the post of peon on 20.4.2010. One of the conditions specified in the appointment order was that the government order dated 31.3.2006 would be applicable to the appointment of the petitioner.
3. After the petitioner joined the service in the respondent - University, he was given an option to opt for pensionary benefit under the notification dated 1.1.2006. Thereafter, the petitioner submitted a representation with the respondent - University to consider his appointment with effect from the date of similarly situated persons, who were appointed under the notification dated 5.10.2002. However, the said representation was rejected on the ground that the petitioner 4 was appointed in the year 2010 and as such, the benefit of fixation of seniority and pensionary benefit prior to the government notification dated 1.1.2006 cannot be extended. Hence, this writ petition.
4. Learned counsel for the petitioner submits that because of fault of the respondent - University, petitioner was not appointed as peon as was done in respect of similarly situated persons in pursuance of the notification dated 5.10.2002. Hence, he submits that the seniority as well as pensionary benefit should be considered notionally from the date of appointment of similarly situated persons who were appointed in pursuance of the notification dated 5.10.2002.
5. On the other hand, learned counsel for the respondent - University submits that the petitioner having accepted the appointment order unconditionally cannot be now contended that he is entitled for fixation of seniority as well as pensionary benefit by reckoning the date of similarly situated appointed persons under the notification dated 5.10.2002. 5 Hence, he submits that the writ petition is devoid of merit and the same requires to be dismissed.
6. I have considered the submissions of the learned counsel for the parties.
7. It is not in dispute that in pursuance of the notification dated 5.10.2002, petitioner submitted an application to consider his case for appointment to the post of peon, however, the same was not considered on the ground that he has not secured minimum marks in the interview. This Court directed to consider the case of the petitioner on the basis of the marks obtained by him in the qualifying examination without reference to the marks obtained in the interview. It is only thereafter the petitioner was issued with an appointment order appointing him to the post of peon. The appointment of the petitioner as peon should be construed as one under the notification dated 5.10.2002. Since the appointment of the petitioner was in pursuance of the notification dated 5.10.2002, the seniority as well as the pensionary benefit should be extended from the date of appointment of similarly situated 6 persons, who were appointed under the very same notification on 12.2.2003.
8. The contention of the University that the petitioner having accepted the appointment order unconditionally cannot seek for fixation of seniority as well as pensionary benefits notionally. Petitioner after obtaining the order of appointment has represented with the University so as to set right the anomaly in the appointment order and there is no bar for him to submit a representation to consider his claim to which he is legally entitled to in accordance with law. The respondent - University was at fault in not appointing the petitioner on 12.2.2003 and due to the fault of the University, the petitioner cannot be deprived of his claim to fix seniority and continuity in service notionally. Hence, the submission of the learned counsel for the University that the petitioner cannot approbate and reprobate is not acceptable.
In view of the preceding analysis, I am of the considered view that the seniority of the petitioner as well as the pensionary benefit should be extended notionally by treating his 7 appointment w.e.f. 12.2.2003 on the date on which the similarly situated persons were appointed in pursuance of the notification dated 5.10.2002. Accordingly, I pass the following:
ORDER
i) Writ petition is allowed;
ii) The impugned communication dated 2.4.2013 issued by respondent - University vide Annexure-G is hereby quashed;
iii) The respondent - University is directed to extend the benefit of seniority, promotion and continuity of service notionally treating the date of appointment of the petitioner as 12.2.2003. The said exercise shall be concluded within three months from the date of receipt of certified copy of this order.
Sd/-
JUDGE bkm