Karnataka High Court
Smt N Rasiabi vs The Director on 17 August, 2012
Bench: N.K.Patil, S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF AUGUST, 2012,
: PRESENT :
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
Writ Petition No.10289 of 2012 (S-CAT)
Between:
Smt. N.Rasiabi,
D/o. Pareeth.N,
Age: 43 years,
R/at. LIC 46, 11th Cross,
Gangothri Layout,
Manasa Gangothri,
Mysore-6.
...Petitioner
(By Smt. Manjula R Kamadolli, Advocate)
And :
1. The Director,
All India Institute of Speech
And Hearing,
Ministry of Health and
Family Welfare,
Govt., Of India,
Naimisham Campus,
Manasa Gangotri,
Mysore-6.
2
2. The Secretary,
Ministry of Health and
Family Welfare,
Govt., Of India,
New Delhi.
... Respondents
This W.P. is filed under Articles 226 and 227 of the
Constitution of India, praying to quash the impugned order
passed by the Central Administrative Tribunal in Transferred
application No.508/10, dated 09/03/2012 vide Annexure-A
and the office memorandum dated 28/03/2012, issued by
the R1, vide Annexure-F and etc.,
This W.P. coming on for Preliminary Hearing, this day,
N.K.PATIL J., made the following:
:O R D E R:
The petitioner in this petition has sought for quashing of the impugned order passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore, in Transferred application No.508/10, dated 09/03/2012 vide Annexure-A and the office memorandum dated 28/03/2012, issued by the R1, vide Annexure-F.
2. The petitioner has assailed the correctness of the notification dated 22.2.2007 in W.P.No.6563/2006 which has been transferred to the Tribunal and it has 3 been re-numbered as Transferred application No.508/2010. The said matter had come up for consideration before the Tribunal which in turn, after hearing the parties and after perusing the materials available on record, has dismissed the said application by its order dated 9th March 2012, against which, the petitioner has presented this writ petition.
3. It is the case of the petitioner that, she is fully qualified and eligible for appointment as Special Educator in All India Institute of Speech and Hearing, Ministry of Health and Family Welfare, Government of India, Naimisham Campus, Manasa Gangotri, Mysore. She has applied for the Post of Special Educator and in pursuance of letter dated 9.12.2003 first respondent appointed her as Special Educator on adhoc basis on 19.12.2003. The first respondent instead of confirming her services, continued her on adhoc basis and relieved her from service w.e.f. 24.6.2004 vide Annexure-L. Thereafter, first respondent had appointed the petitioner 4 on similar lines vide Annexure-M dated 28.6.2004 and relieved from service on 27.5.2005. Again, she has been taken on service on 1.6.2005. Thereafter, instead of confirming her services on permanent basis, first respondent vide Annexure-Q notification dated 24.8.2005 called for application from eligible candidates to fill up the posts of Special Educator on regular service basis from those who possess the requisite qualification and eligibility. The said notification indicates that, out of six posts of Special Educators, four posts were earmarked for General merit, one post for SC, one post for OBC . It is her case that, she belongs to OBC category and she has applied for the said post. She was called for interview in pursuance of the said notification vide call letter dated 14.11.2005. It is the further case of petitioner that respondents have not regularized her services though she is fully qualified and eligible and in fact, she has been working as Special Educator in the first 5 respondent- Institute from 19.12.2003. But she came to know that first respondent is intending to terminate her services and to appoint the candidates entrusted by them in pursuance of the notification. It is further submitted by her that, first respondent is trying to appoint persons with less qualifications and experience than that of her in arbitrary manner by violating the rules in force. Therefore, she has filed said application seeking regularisation of her services.
4. The said matter had come up for consideration before the Tribunal, which in turn, after hearing the learned counsel for petitioner and respondents and following the decision of the Constitutional Bench of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1, has dismissed the said application, which is under challenge in this petition.
5. We have heard learned counsel for petitioner. 6
6. The submission of the learned counsel for petitioner Smt. Manjula R. Kamadolli, at the outset, is that, the Tribunal has erred in dismissing the said application, solely on the ground that petitioner has served in the said institution several years and therefore, her name ought to have been considered and selected giving weightage to the service rendered by her. But this relevant factor has not been looked into or considered either by the Selection Authority or by the Tribunal. Therefore, she submitted that the impugned order is liable to be set aside.
7. After hearing the learned counsel for the petitioner and after careful perusal of the grounds urged in this petition, including the order impugned, we do not find any error or illegality or much less material irregularity committed by the Tribunal in declining to grant the relief sought by the petitioner in TA No.508/2010. It is significant to note that, initially, petitioner has been appointed on her request, and not 7 in pursuance of any notification or advertisement issued by the first respondent. Though petitioner had failed in one of the subjects in B.Ed.(Hi) course, she was tentatively appointed as Special Educator on adhoc basis for a period of three months vide order dated 19.12.2003 considering her experience in that school. The Tribunal has observed that, she being a contract employee, she cannot claim any right or lien over the post and once the post of a Special Educator is sought to be filled up on permanent basis after issuing public notification, she has to compete with all others and to make way, if not selected, to the persons who are selected by the Selection Committee. The Tribunal placing reliance on the decision of the Constitutional Bench of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC1, wherein, it is held that:
"43. Thus it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the 8 core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the Constitution. 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 the 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 or 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 his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the terms of the 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 due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right...."
has held that, since the petitioner has been appointed purely on contract basis, she cannot have any right or lien over the post and she has to compete with others and make way for them, if not selected, on regular basis 9 and accordingly, dismissed the same. The reasoning assigned by the Tribunal for dismissing the said application is in strict compliance of the terms ands conditions of the notification. Therefore, we are of the considered view that, interference by this Court in the well-considered order passed by the Tribunal is not called for. Nor the petitioner has made out any good grounds to entertain the relief sought in this petition. Hence, this wit petition is dismissed as devoid of merits.
SD/-
JUDGE SD/-
JUDGE tsn*