Karnataka High Court
The Deputy Director vs Maqsooda Khanum on 9 August, 2018
Bench: A.S.Bopanna, Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE A.S.BOPANNA
AND
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
WRIT PETITION NO.23432/2018(S-KAT)
BETWEEN :
1. The Deputy Director of
Public Instruction,
Chitradurga District,
Chitradurga.
2. The State of Karnataka,
Rep. by its Secretary,
Education Department,
M.S.Buildings,
Vidhana Veedhi,
Bengaluru - 560 001.
3. The Director of
Primary Education,
New Public Offices,
Bengaluru. ...PETITIONERS
(By Sri.I.Tharanath Poojary, Adv.)
AND :
1. Maqsooda Khanum, P.U.C., T.C.H.,
D/o.H.M.Jabbar Khan,
Aged about 28 years,
R/o. D. No.550/5,
Imamnagar, Davanagere.
-2-
2. Najma Sultana,
D/o.Shaik Hunnur Sab,
R/o. D. No.2778,
Horapete, Chitradurga. ...RESPONDENTS
(By Sri.T.T.Kumar, Adv. for R1)
. . . .
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to set-aside the
impugned order at Application No.6899/2003 dated
14.01.2016 on the file of the Hon'ble Karnataka State
Administrative Tribunal at Bengaluru at Annexure 'A'
This Writ Petition coming on for preliminary
hearing, this day, A.S. Bopanna. J., made the
following:
ORDER
Sri.G.T.Kumar, learned counsel has taken notice for respondent No.1. Registry, to print his name. Vakalath be filed in the Registry in four weeks.
2. Considering the nature of relief granted by the Karnataka State Administrative Tribunal ('KSAT' for short) and in that circumstance since in any event the respondent No.2 would not be affected either by the order of the KSAT or by the order to be passed herein, notice to respondent No.2 is dispensed. -3-
3. The respondent No.1 herein was before the KSAT in Application No.6899/2003 seeking that the non-selection of respondent No.1 herein be held as illegal and in that light has sought that respondent No.1 herein be appointed as the Primary School Teacher in Urdu language in Chitradurga District. The case of respondent No.1 before the KSAT was that she had responded to the Notification dated 10.11.1997 inviting applications for 46 posts of Primary School Teachers in Urdu language. The respondent No.1 had also claimed such right as belonging to category 2B. In the process of selection, the respondent No.2 herein who had lesser merit and had secured 54.54 percentage and also persons having even lesser merit than respondent No.2 herein were selected while respondent No.1 who had secured 56.10 percentage and was more meritorious than the other selected candidates had not been provided employment.
4. The KSAT having taken note of these aspects and also the contention on behalf of the petitioners -4- herein that the case of respondent No.1 herein was not considered as she had not been sponsored through the Employment Exchange has arrived at the conclusion that such rejection of the candidature of respondent No.1 would not be justified in view of the decisions as rendered by the Hon'ble Supreme Court in the case of Excise Superintendent, Malkaptnam, Krishna District, AP Vs. K.B.N. Visweswara Rao & others [(1996)6 SCC 216] and also in the case of Union of India Vs. Pritilata Nanda [2011-II LLJ 305(SC)]. In that view, the KSAT having held respondent No.1 to be entitled for such appointment had also taken into consideration the fact that the persons who had been appointed have been discharging their duties for a long time and therefore, it was clarified that if there is no vacancy, supernumerary post be created and respondent No.1 be accommodated therein. The petitioners herein claiming to be aggrieved by such direction issued by the KSAT is before this Court. -5-
5. The learned Government Advocate would seek to sustain the action of the petitioners in declining consideration of respondent No.1 and in that circumstance would contend that the KSAT was not justified in issuing such direction more particularly when such long period had elapsed. It is in that circumstance contended that when the case of respondent No.1 had not been sponsored through the Employment Exchange, merely because she was more meritorious cannot be a consideration to accept her case. Hence, it is contended that the order passed by the KSAT is liable to be set-aside.
6. The learned counsel for respondent No.1 would however seek to sustain the order passed by the KSAT. It is pointed out that through the judgments of the Hon'ble Supreme Court as referred therein, the KSAT has kept in view the legal position that the sponsorship through the Employment Exchange is not a mandatory requirement when applications are invited by issue of Notification, but the same is one of the source to secure -6- the applications. Hence, it is contended that in such circumstance when the respondent No.1 had responded to a Notification calling for applications and in that regard had satisfied the other conditions and was more meritorious, she was entitled to be selected and the KSAT keeping these aspects in view has issued appropriate directions. It is in that light contended that the petitioner has been litigating this aspect as far back as from the year 2003 and therefore mere passage of time cannot be a constraint to grant the benefit to the petitioner.
7. In the light of the contentions as put forth, the fact that respondent No.2 belonging to category 2B and having secured 56.10 percentage cannot be disputed as this fact emerges from the records which were perused by the KSAT. It is also not in dispute that the selected candidates to whom reference is made in the application had possessed lesser merit since the respondent No.2 who was next in merit after respondent No.1 had secured 54.54 percentage. If this aspect of the matter is -7- kept in view, the only reason as put forth by the petitioners before the KSAT for denying the benefit to respondent No.1 herein is that her name has not been sponsored through the Employment Exchange.
8. In the instant facts it is not in dispute that the petitioners had invited applications through a Notification dated 10.11.1997. If that be the position the selection process was not only through the candidates sponsored though Employment Exchange but also by inviting applications by publication of the Notification. Respondent No.1 has responded to the Notification and has made her application seeking employment. If that be the position, the decision as noted by the KSAT to which we have also made reference herein would indicate that the Hon'ble Supreme Court has laid down in no uncertain terms that the sponsorship through the Employment Exchange is not a mandatory requirement, but is one of the source. If that be the position, the view ultimately taken by the KSAT to that effect is justified. -8-
9. With regard to the contention of the learned Government Advocate that sufficient time has elapsed, it is no doubt true that in respect of the Notification dated 10.11.1997, respondent No.1 herein had approached the KSAT in the year 2003. The specific date on which the selection process was completed is not available on record. In any event, it is noticed that after the selection process was completed the respondent No.1 had submitted the representation dated 29.07.2003 and had thereafter approached the KSAT. The KSAT had entertained the Application since in any event the delay was not an issue for consideration therein. Therefore, in that circumstance when the Application filed in the year 2003 was considered by the KSAT only on 14.01.2016, the time that had elapsed in the meanwhile when the respondent No.1 was prosecuting the remedy cannot be held against respondent No.1.
10. Be that as it may in any event, insofar as the nature of the relief granted by the KSAT and in that -9- circumstance keeping in view that respondent No.1 in any event did not discharge her duties and is presently being accommodated without disturbing any selected candidate, the benefit of the service would be available to respondent No.1 from the date of the order passed by the KSAT and no monetary benefit shall be claimed by respondent No.1. However for computing the length of service only for terminal benefits it shall be from the date the other candidates were appointed under the same recruitment process.
With the above clarification, since we do not find any error committed by the KSAT so as to interfere with the order, the instant petition is disposed of as being devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE SPS