Karnataka High Court
Sri N Krishna Murthy vs The Chairman on 4 July, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JULY, 2017
BEFORE
THE HON'BLE Mr. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.47643 OF 2012 (S - RES)
BETWEEN:
SRI. N.KRISHNA MURTHY
S/O GATTU NARASIMHALU
AGED ABOUT 50 YEARS
ASSISTANT ENVIRONMENTAL OFFICER
KARNATAKA STATE POLLUTION
CONTROL BOARD
R/O NO.367, 12TH CROSS
4TH MAIN, MAHALAKSHMIPURAM
BANGALORE - 560 086
... PETITIONER
(BY SRI.P.N. RAJESWARA, ADVOCATE)
AND:
1. THE CHAIRMAN
KARNATAKA STATE POLLUTION
CONTROL BOARD
PARISARA BHAVAN
NO.49, 5TH FLOOR
CHURCH STREET
BANGALORE - 560 001
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2. THE KARNATAKA STATE POLLUTION
CONTROL BOARD
REPRESENTED BY ITS
MEMBER SECRETARY
PARISARA BHAVAN
NO.49, 5TH FLOOR
CHURCH STREET
BANGALORE - 560 001
... RESPONDENTS
(BY SRI.GURURAJ JOSHI, ADV. FOR R1 & 2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO DIRECT THE RESPONDENT TO
CONSIDER THE WEIGHTAGE AS PER ANNEXURE - G
AND THEREAFTER CONSIDER THE CASE ON
RECRUITMENT AS ASSISTANT ENVIRONMENTAL
OFFICER IN RESPONDENT CONCERN AND
REGULARISE THE SERVICE IN ACCORDANCE WITH
LAW.
THIS PETITION COMING ON FOR DICTATING
JUDGMENT, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this court seeking for a writ of mandamus and for a direction to the respondents to consider awarding weightge as per Annexure-G; and thereafter to consider his case for regularization as Assistant 3 Environmental Officer in the respondent Board and regularize his services in accordance with law.
2. It is the case of the petitioner that he was appointed as a Civil Engineer under contract basis in the respondent-Board, 15 years ago. As per Government Order, dated 12.11.2009, his services are not regularized. Hence, he had filed Writ Petition No.4630/2011 before this Court seeking writ of mandamus to regularize his services.
3. This Court by the order dated 30.3.2011 directed that in respect of the contract employees who have made applications in response to the notification dated 6.10.2010 and who have made applications in pursuance of the interim order dated 23.2.2011 in W.P.No.38300/2010 shall be considered in terms of the qualification prescribed under the Cadre and Recruitment Rules 1992 and weightage as prescribed under the Government order dated 12.11.2009 be given to such applicants.
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4. Thereafter the respondent filed W.P.No.27983- 984/2012. This Court by order dated 21.8.2012 directed the respondent that the contract employees, except three, are not entitled for regularization and weightage as prescribed under the Government Order. The petitioner made a representation to the respondents vide annexure -A, for which the respondents issued an endorsement stating that the petitioner is not qualified, and therefore, not eligible for the post of Assistant Environment Officer vide Annexure-D. Further the petitioner filed an application along with representation vide Annexure-E contending .that as per G.O. dated 12.11.2009, he is entitled for weihtage of 4 marks and his percentage comes to 95.87. The respondent without considering the weightage as per Government proceedings vide Annexure-G, has published lost of ineligible candidates and the petitioner is shown at Sl.No.13 as not eligible for weightage. Aggrieved by the said order, the petitioner has filed this Writ petition.
5. Heard the learned counsel for both sides. 5
6. Learned counsel for the petitioner submits that weightage given as per the Government order dated 12.11.2009 should not be confined to the post in which the contract employees were working and should be extended to all irrespective of the posts for which they have applied for in which they were working. The said benefit should be continued not only once, but also for the future recruitments. He further contended that with regard to qualification for recruitment as per the notification dated 6.10.2010 or for any subsequent recruitment, it should be in accordance with the qualification prescribed under the Cadre and Recruitment Rules 1992. Hence, prays for a direction to the respondents.
7. Learned counsel for the respondents submitted that as per Cadre and Recruitment Rules, 2010, applicant must fulfill the requisite qualification, but the qualification prescribed in the notification dated 6.10.2010 cannot be altered. He has also submitted that the Government has 6 extended the benefit of weightage of 4% marks to the contract employees as one time measure and it cannot be made available for all future recruitments and the Board has no objection to consider the case of the contract employees by giving weightage as per the G.O. Dated 12.11.2009. He has further submitted that at the time when they were recruited, they were all qualified for the respective posts, but for the shortage of length of service as on 10.4.2006 some of them were not eligible for regularization. If they were all qualified, as per their experience from the date of recruitment in the said post itself could be treated as a qualification. Accordingly, the petitioner is not eligible for regularization. Hence, prays for dismissal of the petition.
8. It is submitted by the learned Counsel for the respondents that as per 1992 Cadre, Recruitment & Condition of Service Regulations, one should possess a first class Degree in Environment /Public Health/Chemical Engineering and a First Class degree in M.Sc., ( Zoology, Botany,Geology, Microbiology), and preference shall be given 7 to the candidates having experience in the field of Pollution Control/Hazardous waste handling and related activities. As the petitioner has possessed second class degree in Civil Engineering, his application has been rejected on the ground of not possessing the prescribed qualification as per Rules. Hence , question of consideration of the representation of the petitioner does not arise.
9. Learned counsel for the respondents referred to the connected matter in W.P.No.27983-984/2012 disposed of on 21.8.2012 wherein it has been held that:
XXXX XXXX XXXX
2. In respect of the contract employees who have made applications in response to the notification dated 06.10.2010 and who have made application in pursuance of the interim order dated 23.02.2011 in W.P.No.38200/2010, their applications shall be considered in terms of the qualification prescribed under the Cadre and Recruitment Rules of 1992 and 8 Xxx xxxx xxx
10. Therefore, he submitted that this Court has itself made it clear that the application is to be considered in the light of the regulations. As per the Regulations referred to above initially the petitioner was not eligible to the post. Accordingly his application was not considered. Hence, prays for rejecting the application.
11. It reveals from the record that the petitioner is a contract employee vide Government Order dated 12.11.2009 and extension was made on 9.11.2012. In this petition the petitioner prays for a direction to the respondents to consider the weightage as per Annexure-G and to consider his case for regularization as an Assistant Environmental Officer in accordance with law. This Court by an interim order dated 23.2.2011 noticed that some of the contract employees had made applications for recruitment in pursuance of the notification dated 6.10.2010 and the State Government had also passed an order dated 12.11.2009 9 inter alia granting approval for extension of weightage at 4% of marks for each satisfactory completed year of service which is rounded up to next integer and age relaxation extended by the Government order dated 5.8.2002 to those who are working on contract basis.
12. Learned counsel for respondents submitted that the respondent has no objection to consider the case of the contract employees by giving weightage vide Government order dated 12.11.2009. But the recruitments are to be made in accordance with the qualifications prescribed under the Cadre and Recruitment Rules prevailing as on the date of issue of notification.
13. Now the question is whether in the case of this nature the order dated 12.11.2009 and the Government order dated 16.7.2012 prescribing 4% weightage shall be provided or not?
14. As could be seen from the records that the respondents have failed to follow the Government order 10 giving weightage of 4% marks for each completed year of service and adding it to the qualified marks, then the petitioner is entitled for regularization. When the petitioner possesses basic qualification and also experience, i.e., 20 years of service, at this juncture by considering the Government order dated 12.11.2009 and 23.4.2014, the same is to be extended to the benefit of this petitioner and other candidates who have served for a considerable length of time for more than 15-20 years. Considering all these factors, that the petitioner has completed 20 years of service and possessed degree qualification and after adding 4% weightage to his qualifying service, he would definitely be eligible for regularization. Under these circumstances, I hold that the petitioner is eligible for award of 4% weightage given under the Government order dated 12.11.2009 and 23.4.2014.
15. In similar matters, the Hon'ble Apex Court in AIR 2001 Supreme Court 706 in para 26 held as under: 11
26. In the light of the aforesaid decisions we now proceed to examine the proposed scheme. Under Clause 1 it is proposed that all daily wage workers, whether skilled, semi - skilled or unskilled who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31st December, 1999 is to be regularized and be put in the time scale of pay applicable to the corresponding lowest grade in the university. However, the said regularization is subject to some conditions.
Under Clause 1(a) such employee is eligible only if he possess the prescribed qualifications for the post at the time of their appointment. The strong objection has been raised to this eligibility clause. The submission is, those working for a period of 10 or more years without any complaint is by itself a sufficient requiste qualification and any other rider on the facts of this case would prejudice these workers. We find merit in this submission. We have perused the qualifications referred in the aforesaid recruitment rules according to which, 12 qualification for Peon is that he should study up to 8th Std., for Operator-cum-Mechanic, should have Diploma in Mechanic having sufficient knowledge of vehicle repairing experience in automobiles or tractors. Dealers workshop for two years, for Chowkidar, he must be literate and have good physique. Literate is not defined. For Plumber to have I.T.I. Certificate.
We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1(a), need modification to this effect."
16. The judgment referred by the learned counsel for the respondent in 2004 STPL 11485 SC in the case of Umarani Vs. Registrar, Co-operative Societies and others, at para 29 it is held that :
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Regularisation in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of Constitution of India or anybody or authority governed by a statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.
17. This judgment has no application to the present facts and circumstances of the case for the reason that in the said judgment it has been referred, the regulation shall not be ignored in respect of minimum educational qualification and other essential qualifications, as otherwise it would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. The respondent earlier issued notification and incidentally the petitioner was not eligible to make such application. However, he is eligible only in view of the Government order dated 12.11.2009 and 14 23.4.2014. Under these circumstances, the judgment referred to by the respondent has no application.
18. The question would be whether direction to be issued to the respondent to consider the case of the petitioner for the purpose of regularization in response to the notification issued calling for application for selection and appointment. Said notification was issued in the year 2010.
The petitioner has made application and the same has not been considered since he was not having 60% minimum marks. But 4% weightage is to be added with qualifying service and also the marks obtained in the degree examination, then it would come to first class, then the petitioner would be entitled for consideration of his case. In the light of the above, the respondents are directed to consider the case of the petitioner by adding 4% weightage marks in terms of Government orders dated 12.11.2009 and 23.04.2014 and pass appropriate orders in accordance with law within three months from the date of receipt of a copy of this order.
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Accordingly the petition is allowed.
Sd/-
JUDGE Psg*