Karnataka High Court
Sushma Sagar vs The State Of Karnataka on 19 October, 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION No.225875 OF 2020 (S-PRO)
Between:
Sushma Sagar
D/o late Maruti Sagar
Aged about 30 years
Occ: Environment Engineer
R/o Haroorgeri
Near Vidya College
Post Gandhigunj
Bidar 585 401
Presently residing at
C/o Shantkumar Nandoor
House No.45, KHB Akkamahdevi Colony
Opp: High Court
Kalaburagi 585 102
...Petitioner
(by Shri Ameet Kumar Deshpande, Advocate)
And:
1. The State of Karnataka
represented by the Principal Secretary
Urban Development Department
Vidhana Soudha
Bengaluru - 560 001
2
2. The Under Secretary (Corporation-2)
Urban Development Department
Government of Karnataka
Vikasa Soudha
Bengaluru - 560 001
3. The Joint Secretary (Hyderabad Karnataka Special Cell)
Department of Personnel and Administrative Reforms
Vidhana Soudha
Bengaluru - 560 001
4. The Directorate of Municipal Administration
Bengaluru - 560 001
...Respondents
(by Shri Shivakumar R. Tengli, AGA)
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to issue an appropriate writ, more
so in the nature of certiorari and quash the impugned
order/notification dated 11.02.2015 issued by the respondent
No.2 in file No.Na.E.328.MNE.2014 insofar as the post of
Technical Assistant (Environment) at Sl.No.4 whereunder only
one post is reserved for the purpose of promotion under the
reservation of 75% Hyderabad-Karnataka Region instead of two;
and etc.
In this petition, arguments being heard, judgment
reserved, coming on for pronouncement of orders, this day, the
Court made the following:
ORDER
The petitioner has challenged the legality of the impugned notification dated 11th February, 2015 passed by the second respondent, reserving one post for promotion in respect of 3 Technical Assistant (Environment) under the reservation of 75% for Hyderabad-Karnataka Region, produced at Annexure-D. The petitioner has also sought for consideration of the representation dated 06th May, 2020, produced at Annexure-F.
2. The facts, in nut-shell, are that, the petitioner has been appointed as Environment Engineer in Mahanagara Palika (City Corporation) by process of selection through Notification dated 16th November, 2016, by the Director of Municipal Administration, Bangalore. The petitioner claims to be a graduate in Bachelor of Engineering (Chemical) and belongs to Scheduled Caste-woman, category under the Hyderabad- Karnataka Region. It is further stated in the writ petition that, during her selection by Notification dated 16th November, 2016, six out of 27 posts, were reserved for Hyderabad-Karnataka Region. It is further averred that the Cadre and Recruitment Rules of State Government envisages that the post of Technical Assistant (Environment) is equivalent to the cadre of Assistant Executive Engineer (Environment), as per Annexure-A and B. It is further stated that the promotional chart of the Health 4 Staff/Revenue published by the Under Secretary of Urban Development Department (Corporation-2) provides that the Environment Engineer appointed through direct recruitment is a feeder cadre for next promotional post for Assistant Executive Engineer (Environment) and thereafter, the next promotional post is KMAS, Municipal Commissioner Grade-II, as per Annexure-C, and as such, there are 12 posts in the State of Karnataka in the cadre of Assistant Executive Engineer (Environment) required to be filled up by promotion from the feeder cadre of Environmental Engineers.
3. The respondent has issued Notification dated 11 th February, 2015, whereby 75% of the post in Group-A in the local bodies have been ear-marked for the purpose of reservation in the local cadre under the provisions of Article 371-J of Constitution of India in respect of Hyderabad-Karnataka Region. The post of Technical Assistant (Environment) which is equivalent to the post of Assistant Executive Engineer (Environment) has two sanctioned posts for the Hyderabad- Karnataka Region and out of the said two sanctioned posts, 75% 5 is reserved to the local candidates belonging Hyderabad- Karnataka Region. It is further stated that though said two posts were sanctioned posts for Hyderabad-Karnataka Region, however, out of two posts, the respondents have erroneously reserved only one post to be filled-up through the local candidates belonging to Hyderabad-Karnataka Region (local cadre). Sl.No.4 in the Notification dated 11 th February, 2015, provides for different promotional avenues for the post of Assistant Executive Engineer/Technical Assistant (Environment). It is further contended that, two posts sanctioned in the cadre of Assistant Executive Engineer (Environment), which was equivalent to Technical Assistant (Environment), should have been ear-marked for Hyderabad-Karnataka Region (local cadre), as the requirement of 75% of the post in each cadre is required to be reserved for Hyderabad-Karnataka Region. It is further stated that Article 371-J was incorporated into Constitution of India by way of amendment and in pursuance of the same, the Government has passd the Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) Order, 2013 (for short, hereinafter referred to as '2013 Order') 6 through Notification-1 (Annexure-E) dated 29th January, 2014 and in view of the same, the Regional local cadre has been defined reserving posts in Category-A (Junior) and Category-B in the Hyderabad-Karnataka Region to the extent of 75%. In view of the said notification, the posts have to be filled up as per 2013 Order in favour of the local candidates by way of Notification by the cadre controlling Authority, i.e. respondent No.2 herein. In view of the said notification, the respondent No.2 is required to promote two candidates belonging to Hyderabad-Karnataka Region (local cadre) to the posts of Assistant Executive Engineer (Environment), i.e. the posts of Technical Assistant (Environment). Since the respondent has reserved only one out of two posts for promotional post as per Notification dated 11 th February, 2015 (Annexure-D), the petitioner gave representation on 06th May, 2020 to the first respondent herein and the same is pending consideration before the first respondent. Being aggrieved by the notification dated 11th February, 2015 issued by the second respondent insofar as reserving only one post of Technical Assistant (Environment) at Sl.No.4, for the purpose of promotion under the reservation of 75% for Hyderabad- 7 Karnataka Region (local cadre), the petitioner has presented the instant petition.
4. After service of notice, the respondents have filed detailed statement of objections contending that since there are only two posts that were to be filled up by promotion in view of the notification dated 11th February, 2015 and 75% of the total posts have to be reserved for the local cadre and the same comes to 1.5 and thereby, one post was reserved as per the provision contained in Article 371-J of the Constitution of India read with 2013 Order, and another post was kept for the rest of Karnataka area and same is in accordance with sub-clause (4) of Clause 8 of 2013 Order.
5. Shri Ameet Kumar Deshpande, learned counsel appearing for the petitioner contended that the main grievance of the petitioner in this petition is that, in view of the Notification dated 29th January, 2014, 75% of the post in Group-A and Group-B of the Hyderabad-Karnataka Region are required to be ear-marked for the candidates belonging to local cadre (Hyderabad-Karnataka Region candidates). In the instant case, 8 there are two posts notified for promotion and in view of the notification dated 29th January, 2014, as 75% of the reservation was required to be made thereon, the respondent-authorities ought to have notified both the posts for promotion by extending reservation in favour of the local cadre candidates in terms of Judgment passed by the Hon'ble Supreme Court in the case of GANESH SUKHDWO GURULE v. TAHSILDAR, SINNAR AND OTHERS reported in (2019)3 SCC 211. He further submitted that the respondents herein have not considered the intent behind the reservation as provided under Article 371-J of Constitution of India and Rules framed thereunder and thereby, the impugned notification dated 11 th February, 2015 is contrary to law and liable to be quashed. He further submitted that the petitioner herein has made representation dated 06 th May, 2020 as per Annexure-F and the same is yet to be considered by the respondent authorities and therefore, he prays for allowing the writ petition.
6. Per contra, Shri Shivakumar R. Tengli, learned Additional Government Advocate, reiterates the contents of the 9 statement of objections. He further submitted that in view of sub-clauses (3) and (4) of clause 8 of 2013 Order, the respondents have rightly reserved one out of two posts called for in the impugned notification for promotional posts and as such, the writ petition deserves to be dismissed.
7. I have carefully examined the provisions contained in 2013 Order and so also, examined the writ papers. Article 371-J of Constitution of India provides for special provisions with respect to State of Karnataka. The said provision was inserted by the Constitution (98th Amendment) Act, 2012 with effect from 24th September, 2013. Article 371-J reads as under:
"371-J. Special provisions with respect to state of Karnataka.- (1) The President may, by order made with respect to the State of Karnataka, provide for any special responsibility of the Governor for-
(a) establishment of a separate development board for Hyderabad-Karnataka region with the provision that a report on the working of the board will be placed each year before the State Legislature Assembly;10
(b) equitable allocation of funds for developmental expenditure over the said region, subject to the requirements of the State as a whole; and
(c) equitable opportunities and facilities for the people belonging to the said region, in matters of public employment, education and vocational training, subject to the requirements of the State as a whole.
(2) An order made under sub-clause (c) of clause (1) may provide for -
(a) reservation of a proportion of seats in educational and vocational training instructions in the Hyderabad-Karnataka region for students who belong to that region by birth or by domicile; and
(b) identification of posts or classes of posts under the State Government and in any body or organization under the control of the State Government in the Hyderabad-Karnataka region and reservation of a proportion of such posts or persons who belong to that region by birth or by domicile and for appointment there to by direct recruitment or by promotion or in any manner as may be specified in the order."11
8. The perusal of the aforesaid provision makes it clear that the State Government, may by order under Article 371- J(2)(b), identify that classes of posts under the State Government and in any body or organization under the control of the State Government in the Hyderabad-Karnataka Region shall provide reservation for a proportion of such posts for persons who belong to that Region by birth or domicile and for appointment thereto by direct recruitment or by promotion or in any manner as may be specified in the order. In pursuance of the aforesaid provision, the State Government has framed the Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) Order, 2013 by Notification dated 16th November, 2013. Sub-clause(1)(e), (f) and (h) of Clause 2 of the 2013 Order reads as under:
"2. Interpretations.- (1) xxx xxx xxx
(a) to (d) xxx xxx xxx
(e) "Local Cadre" means any local cadre under the State Government or in any Local Authority or body or organization organized in pursuance of paragraph 3;12
(f) "Local person" in relation to any local area means a person who qualifies under paragraph 6 as a local person in relation to such local area;
(g) xxx xxx xxx
(h) "Region" or "Hyderabad-Karnataka Region" shall comprise of revenue districts of Bidar, Gulbarga, Raichur, Koppal, Yadgir and Bellary Districts; "
9. Clause 3 of 2013 Order provides for Organization of Local Cadres, and the same reads as under:
"3. Organisation of Local cadres.- (1) the Governor shall within a period of three months from the commencement of this Order, by notification identify posts in the civil services or civil posts under the State Government in the Hyderabad-Karnataka Region or posts in Local Authority or body or organisation under the control of the State Government in that region into the local cadre to the extent and in the manner, hereinafter provided.
(2) 75% of the posts in the region belonging to Group-A (Junior Scale) and Group-B posts in each department of the State Civil Service or in local Authority or body or organization shall be organized into as local cadres."
10. Clause 8 of 2013 Order, provides as under:
13
"8. Reservation in the matter of direct recruitment or promotion.- (1) All posts in any local cadre to be filled by direct recruitment or by promotion at any time under the State Government in any local authority or in any body or organization in that region comprising of and upto Group-A (Junior Scale), Group-B, Group-C and Group-D post shall be reserved in favour of local persons in relation to the local area or the region in respect of such cadre to the extent specified in para 3.
(2) The cadre and recruitment for Group C and D posts shall be organized as district-wise cadre.
(3) While determining under this paragraph the number of posts to be reserved in favour of local persons, any fraction of a post shall be counted as one.
(4) Notwithstanding anything contained in the foregoing provisions of this paragraph,-
(a) there shall be at least one post left unreserved out of the posts filled by direct recruitment at any time to any local cadre;
(b) there shall be, as far as possible, at least one post reserved for the local candidates in respect of each local area."
11. The aforementioned 2013 Order was subsequently amended by Notification dated 29 th January, 2014 as per Annexure-E. In the said amendment, the reservation of 14 Regional Local Cadre has been defined under sub-clause (2)(b)of clause 3 of 2013 Order, as number of posts in Category-A and Category-B in the Hyderabad-Karnataka Region to an extent of 75%. In view of the aforesaid notification, respondent No.2 has notified two posts belonging to Hyderabad-Karnataka Region (local cadre) to the post of Assistant Executive Engineer, equivalent to the post of Technical Assistant (Environment), as per Annexure-D. Sl.No.4 to the Notification provides for 100% promotional avenue and as such, the respondents have sanctioned two posts for promotion to the higher cadre. In the said Notification, in view of the provisions contained in 2013 Order, as well as, subsequent amendment made on 29 th January, 2104, one post was reserved for Hyderabad-Karnataka Region. I have carefully examined the provisions contained in Sub-clause (e), (f) and (h) of Clause 2 of 2013 Order. The said clauses have to be read along with Clause 3 of 2013 Order, which provides for Organization of local cadres. Sub-clause (2)(b) of Clause 3 of 2013 Order provides for reservation of 75% of the post in the Region belonging to Group-A and Group-B posts in each Department of the State Civil Services or in a local 15 Authority or body or organization shall be organized into as local cadres. Sub-Clause (3) of Clause 8 of 2013 Order, provides for any fraction of post reserved in favour of local persons, shall be counted as one. However, the perusal of Sub-clause (4) of Clause 8 of 2013 Order, provides for non-obstante clause. It is evident from the aforesaid Clause 8(4)(a) of the 2013 Order that there shall be at least one post left un-reserved out of the posts filled-up by direct recruitment at any time, to any local cadre and in that view of the matter, the impugned notification issued on 11th February, 2015 reserving one post out of two posts in Hyderabad-Karnataka Region is earmarked for candidates of rest of Karnataka and same is in accordance with the pith and substance of Article 371-J of the Constitution, as well as in consonance with 2013 Order and in that view of the matter, the judgment relied upon by the learned counsel for the petitioner in GANESH SUKHDEO GURULE (supra) is not applicable to the facts of the case on hand. The discussion made at paragraphs 9 to 20 of the judgment is not applicable to the facts of this case in view of the specific provision contemplated sub-clause (4) of clause 8 of 2013 order, and therefore, the contentions raised by the 16 learned counsel for the petitioner does not survive for consideration. It is also submitted by the learned counsel for the petitioner that Sub-clause (4) of Clause 8 of 2013 Order is not applicable to the case on hand. In this regard, the learned counsel for the petitioner submitted that the very object of incorporation of Article 371-J of the Constitution of India would render redundant in view of sub-clause (4) of Clause 8 of 2013 Order. However, the petitioner has not challenged the validity or legality of Clause 8(4) of 2013 Order and therefore, the argument of the learned counsel for the petitioner is beyond the scope of the writ petition. Having considered the said submission of the learned counsel for the petitioner, it is relevant to refer to the judgment rendered by the Hon'ble Supreme Court in the case of KSL & INDUSTRIES LIMITED v. M/S. ARIHANT THREADS LIMITED AND OTHERS reported in AIR 2015 SC 498 wherein, the observation made in the course of judgment, at paragraph 52, reads thus:
"...In Reserve Bank of India Versus Peerless General Finance and Investment Co. Ltd. & Ors.[6], where this Court has observed:-17
"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."18
12. In view of the aforesaid dictum of the Hon'ble Apex Court, the argument advanced by the learned counsel for the petitioner cannot be accepted.
13. As regards the argument of the learned counsel for the petitioner on sub-clause (4) of clause 8 of 2013 Order is contrary to Article 371-J of the Constitution of India is concerned, I have carefully examined the statement and object of Article 371-J of the Constitution of India as well as 2013 Order, produced at Annexure-E. Clause 8(4) of 2013 Order provides for non-obstante clause. The respondents herein, in their wisdom, have considered the fact that while considering the case of the candidates for appointment/promotion, through Article 371-J, have made it clear that at least one post shall be left un-reserved and open for the rest of Karnataka. The object of the said reservation of reserving one post for rest of the Region of Karnataka, would sub-serve the tenets of Article 14 and 16 of the Constitution of India. In this regard, the observation made by the Constitution Bench of the Hon'ble Supreme Court, while dealing with Section 319 of Code of 19 Criminal Procedure, in the case of HARDEEP SINGH v STATE OF PUNJAB reported in AIR 2014 SC 1400 reads thus:
"40. The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. The court cannot re-write, recast or reframe the legislation for the reason that it has no power to legislate.
41. No word in a statute has to be construed as surplusage. No word can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. While construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the Statute. By construction, a provision should not be reduced to a dead letter or useless lumber. An interpretation which renders a provision an otiose should be avoided otherwise it would mean that in 20 enacting such a provision, the legislature was involved in an exercise in futility and the product came as a purposeless piece of legislation and that the provision had been enacted without any purpose and the entire exercise to enact such a provision was most unwarranted besides being uncharitable. (Vide: Patel Chunibhai Dajibha etc. v. Narayanrao Khanderao Jambekar & Anr., AIR 1965 SC 1457; The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529; M.V. Elisabeth & Ors. v. Harwan Investment & Trading Pvt. Ltd. Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, AIR 1993 SC 1014; Sultana Begum v. Prem Chand Jain, AIR 1997 SC 1006; State of Bihar & Ors. etc.etc. v. Bihar Distillery Ltd. etc. etc., AIR 1997 SC 1511; Institute of Chartered Accountants of India v. M/s. Price Waterhouse & Anr., AIR 1998 SC 74; and The South Central Railway Employees Co- operative Credit Society Employees Union, Secundrabad v. The Registrar of Co-operative Societies & Ors., AIR 1998 SC 703).
42. This Court in Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC 30, after placing reliance on various earlier judgments of this Court held:
"The Court has to keep in mind the fact that, while interpreting the provisions of a Statute, it can neither add, nor subtract even a single word A section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof. The 21 Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. The Statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause. under the garb of interpreting the provision, the Court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation"
Thus, by no means it can be said that provisions of Section 319 Cr.P.C. cannot be pressed into service during the course of inquiry. The word inquiry is not surpulsage in the said provision."
14. Having followed the law declared by the Hon'ble Supreme Court in the cases referred to above, the provisions contained in Clause 8(4) of 2013 Order, is within the purview of Article 371-J of the Constitution of India and therefore, 22 contentions raised by the learned counsel for the petitioner is liable to be rejected as devoid of merits.
15. In the light of the discussion made above the respondent No.1 is directed to consider the representation dated 06th May, 2020 produced at Annexure-F and pass appropriate orders in accordance with law.
In the result, writ petition dismissed.
Sd/-
JUDGE lnn