Karnataka High Court
The State Of Karnataka vs Sri.Sunil S/O Shivaji Rao Patil on 17 April, 2023
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF APRIL 2023
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MR.JUSTICE UMESH M ADIGA
WRIT PETITION NO.147678/2020 ( S-KAT )
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE SECRETARY
TO GOVERNMENT
PRIMARY EDUCATION DEPARTMENT,
M.S. BUILDING,
BENGALORE-01.
2. THE DIRECTOR,
PRIMARY EDUCATION DEPARTMENT
OFFICE OF THE COMMISSIONER
NRUPATUNGA ROAD,
BANGALORE-01.
3. THE COMMISSIONER
DEPT. OF PUBLIC INSTRUCTIONS
NRUPATUNGA ROAD,
BANGALORE-01.
4. THE DEPUTY DIRECTOR
PUBLIC INSTRUCTIONS
CLUB ROAD, BELAGAVI-590 002
BELAGAVI DISTRICT. ... PETITIONERS
(BY SRI G.K.HIREGOUDAR, GOVT. ADVOCATE)
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AND:
1. SRI. SUNIL S/O SHIVAJI RAO PATIL
AGED ABOUT: 50 YEARS, OCC: NIL,
R/O: AT SHIV CHANDRA NILAYA,
NO.297, BHAGYA NAGAR,
3RD CROSS, ANGOL MALL,
BELAGAVI DISTRICT.
2. SMT. SUNITHA D/O DATATRAYA JADAV
AGED ABOUT: 45 YEARS, OCC: NIL
R/AT: H.NO.25, LAXMI ROAD,
JADAV CHAVAL, NAGATI CIRCLE
SHAHAPUR, BELAGAVI DISTRICT.
3. SRI. RIYAZ AHMED
S/O MOHAMMED GOUSE TAHASILDAR
AGED ABOUT: 48 YEARS,
OCC: NIL,
R/AT: SHIV CHANDRA NILAYA,
NO.79/A, SHAHAPUR GALLI,
DHAMNE, BELAGAVI DISTRICT.
4. SMT. SARFOON BANU
D/O IBRAHIM ARKATI
AGED ABOUT: 42 YEARS,
OCC:NIL,
R/O: CCB, NO.243,
SHIVA SATHI NAGAR,
ANGOL,
BELAGAVI DISTRICT. ... RESPONDENTS
(By SRI ANANT P. SAVADI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE
OF CERTIORARI TO QUASH THE IMPUGNED ORDER
DATED 17.12.2019 PASSED BY THE HON'BLE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL,
BENGALURU IN APPLICATION NO.7352-55/2018
VIDE ANNEXURE-'C' AND ETC.
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THIS WRIT PETITION HAVING BEEN HEARD
AND RESERVED ON 17.03.2023 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY,
S. SUNIL DUTT YADAV J., MADE THE
FOLLOWING:
ORDER
The parties are referred to by their ranks before the Tribunal for the purpose of convenience.
2. The present writ petition is filed by the respondent-State calling in question the validity of the order of the Tribunal whereby the application filed by the unselected candidates came to be allowed and the endorsements issued to the applicants were set aside, with a further direction to consider the case of the applicants for selection and to include them in the additional list relating to the year 1997-1998 and 1998-1999 and to appoint them with all consequential benefits.
3. The applicants being aggrieved by the list prepared by the respondents had represented seeking for setting aside of the list prepared and for rectifying the same by deleting the repeated names of the candidates. Eventually the representations were 4 considered and endorsements at Annexure A4 to A7 came to be issued which has been assailed before the Tribunal while the Tribunal has allowed the application granting relief, the same has been challenged by the State in the present writ petition.
BRIEF FACTS:
4. The applicants had applied for the post of Primary School Teachers in the year 1997-1998 and 1998-1999. The Government had extended the benefit of rural weightage under Rule 3 (B) of the Karnataka Civil Services (General Recruitment) Rules, 1977. The selection list was announced after extending the benefit of rural weightage. However, the rule granting rural weightage came to be challenged in W.P.No.13157/1998 and the rule providing for rural weightage came to be set aside, though protecting the appointments made prior to 11.11.1998. The said order came to be challenged in W.A.No.5807/1998 by the Government and an interim order was passed staying the order though eventually the order of the learned 5 Single Judge came to be upheld while however protecting the appointments made prior to 11.11.1998.
5. The State had preferred a Special Leave Petition in SLP No.2065-2084/2000 challenging the said orders which however also came to be rejected thereby confirming the order of the Division Bench.
6. Meanwhile, one Sreedhara .S and others have challenged the order passed in the writ appeal only insofar as protection was granted of the appointments made during the pendency of the appeal, in Civil Appeal No.7105/2001. The Apex Court set aside that portion of the order of the Division Bench whereby protection of selections made during the pendency of the writ appeal was set aside. The court held that the directions of the learned Single Judge protecting appointments made till the rule was struck down could not be extended to appointments made during the pendency of the writ appeal. However, the other relevant observation reads as follows:
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"10. We make it clear that if any of these appointees are otherwise entitled to be appointed even after excluding the weightage given under Rule 3 (B), this judgment will not operate to debar them from being appointed."
7. Subsequently, another direction came to be passed by the Apex Court on 06.05.2003 in Writ Petition (C) No.463/2002 and connected matters in the case of Vithal and Others v. State of Karnataka and others [(2004) 10 SCC 162] whereby the direction passed in the case of Sreedhara.S v. State of Karnataka and Another [(2002) 9 SCC 441] was required to be adhered to in eight weeks. Pursuant to such direction the State Government passed a Circular on 02.07.2003 and the operative portion of the said Circular reads as hereunder:
J) ¢£ÁAPÀ: 11.11.1998gÀ £ÀAvÀgÀ UÁæ«ÄÃt PÀÈ¥ÁAPÀzÀ ¸Ë®¨sÀåzÉÆA¢UÉ £ÉêÀÄPÁw (appointment) ºÉÆA¢gÀĪÀ J&Áè C¨sÀåyðUÀ¼À DAiÉÄÌ ¥ÀnÖUÀ¼À£ÀÄß UÁæ«ÄÃt PÀÈ¥ÁAPÀ gÀ»vÀªÁV ¥ÀjµÀÌj¹, ¥ÀjµÀÌøvÀ DAiÉÄÌ ¥ÀnÖUÀ¼À£ÀÄß ¥ÀæPÀn¸À®Ä PÀæªÀÄ vÉUÉzÀÄPÉƼÀîvÀPÀÌzÀÄÝ;7
©) ¥ÀjµÀÌøvÀ DAiÉÄÌ ¥ÀnÖAiÀÄ°è ¸ÁÜ£À ¥ÀqÉAiÀÄ&ÁUÀzÀ C¨sÀåyðUÀ¼À£ÀÄß ¸ÉêɬÄAzÀ vÉUÉzÀĺÁPÀ®Ä PÀæªÀÄ vÉUÉzÀÄPÉƼÀîvÀPÀÌzÀÄÝ;
¹) ¥ÀjµÀÌøvÀ DAiÉÄÌ ¥ÀnÖAiÀÄ°è ºÉƸÀzÁV ¸ÉÃ¥ÀðqÉAiÀiÁzÀ C¨sÀåyðUÀ¼À£ÀÄß ¸ÉêɬÄAzÀ vÉUÉzÀĺÁQzÀ C¨sÀåyðUÀ¼À ¸ÁÜ£ÀzÀ°è ¨sÀ«µÀåªÀwðAiÀiÁV eÁjUÉ §gÀĪÀAvÉ £ÉêÀÄPÁw ªÀiÁqÀ®Ä PÀæªÀÄ vÉUÉzÀÄPÉƼÀîvÀPÀÌzÀÄÝ.
The selection list was re-worked by excluding rural weightage and preparing a fresh selection list.
8. Out of the vacancies created upon re-working of the list, candidates were invited to participate in the counselling process. In the meanwhile, while noting that many of the candidates did not report, a decision was taken on 18.12.2007 not to operate the additional list to fill the vacancies that remained unfilled. The said order came to be challenged in Application No.1902/2008, which was allowed after noticing the Karnataka Education Department Services (Department of Public Instruction) Recruitment Rules, 1967 which provided for preparation of an additional list of 25% of the number of vacancies notified. The operative portion of the order reads as follows:
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i) The applications are disposed off.
ii) The respondents are directed to
prepare an additional select list being
25% of 465 posts from among the
candidates for selection in 1997-98 & 1998-
99 following the same procedure as was followed for preparing the revised list of 465 candidates;
iii) If any of the Applicants in the batch of Applications before us is found on the basis of the merit as per law in the newly prepared additional select list, the Respondents are directed to grant them selection and appointment under the said recruitment against vacancies which had remained unfilled out of the 465 posts for which revised select list was prepared in compliance with the decision of the Supreme Court of India.
Though the said order was challenged, the same has attained finality and consequently an additional list of 25% of the vacant posts has been prepared.
9. Grievances have been made by the applicants regarding such list and representations given. The 9 respondent authorities have however issued an endorsement stating that the applicants were not eligible as they had scored less. Such of the endorsements had been challenged before the Tribunal which however had set aside such endorsements and the order of the Tribunal is in challenge before this court.
ANALYSIS :
10. At the outset the relief sought for before the Tribunal by the appellants is:
(a) To set aside the endorsements issued to the applicants as well as the additional list dated 25.11.2015 prepared by the fourth respondent.
(b) To direct the respondents to prepare a fresh additional list by deleting names of candidates who were already working and to provide appointment to the applicants.
11. It is not in dispute that the additional list has been prepared on 25.11.2005 keeping in mind the 10 direction passed in Application No.1902/2008 and connected matters. The Tribunal in the aforesaid order based its direction on "The Karnataka Education Department Services (Department of Public Instruction) (Recruitment) Rules, 1967 which were in force at the time of the said recruitment in 1997-98 and 1998-99 under Sl.No.66 of the Schedule thereto, as far as is relevant to the present case, reads as hereunder:
"The Selection Committee shall
prepare an additional list of successful
candidates not included in the above list in which the number of candidates to be included, shall as far as possible, be 25% of the number of vacancies notified. This additional list ceases to operate as soon as the list of selected candidates in the subsequent recruitment is published."
12. Such list is admittedly published but does not have the names of the applicants as they have scored less than the requisite percentage. The scores of the applicants with the cut off marks is as follows: 11
MARATHI Sl. Name of the Percentage Cate Cut Off 25% SEX No. Complentee gory % Percentage 1 Sunil S Patil 49.16667 GM 50.33333 49.27381 M 2 Sunita 43.33333 3B 46.89286 25% ¥ÀnÖAiÀÄ°è W Jadhav 3© UÀÄA¦£À ºÀÄzÉÝ C©ü¸ÀÆavÀªÁ VgÀĪÀÅ¢&Áè URDU Sl. Name of the Percentage Category Cut Off 25% SEX No. Complentee % Percentage 1 Riyaz 47.42857 2B 54.47375 52.2500 M Ahammad Tashildar 2 Sunita 50.79762 3B 54.46429 53.58750 W Jadhav
13. The Tribunal has allowed the application on the premise that the additional list prepared was not done properly; the list had included persons who were already working; that only those who have come to court are entitled to relief viz., the applicants; that the proceedings before various courts would take care of the delay which would not be a ground to deny appointment to those who were otherwise eligible.
14. However, the Tribunal has erred in exercising jurisdiction and granting relief when the applicants had 12 approached belatedly. It must be noted that the additional list of 25% of the vacancies in terms of the Karnataka Education Department Services (Department of Public Instruction) (Recruitment) Rules, 1967, the final additional list was produced on 25.11.2015.
15. Admittedly, the direction for preparation of the list of 25% in terms of the Recruitment Rules, 1967 provides for operation of the list till the next list in the subsequent recruitment is published. The rule provides "this additional list ceases to operate as soon as the list of selected candidates in the subsequent recruitment is published."
16. The Tribunal while passing the impugned order notices the stand of the State in Application No.1902/2008 and has reproduced para 8 of the reply and relevant extract is as hereunder:
"8. I submit that since selection process were concluded very long ago and that selection process need not be re- opened for accommodating these applicants, I further submit that selection process was 13 initiated for the years 2004-05, 2005-06 and 2006-07. I submit that as per the policy decision of the Government, Special Rules 2003 came to be issued. The copy of the said rules is herewith produced and marked as Annexure-R6. I further submit that some of the unfilled vacancies were filled by the Special Rules. Therefore, I submit that there is no sanctioned post of Primary School Teacher."
17. Once it is the stand of the Government as noticed above in the notification under the Special Rules of 2003 that the posts are filled up, the additional list under the Recruitment Rules, 1967 ceases to operate and consequently the applicants cannot continue to claim rights under the additional list, which the Tribunal has failed to notice. By order of the court, there cannot be creation of jobs contrary to the Recruitment Rules and such orders passed are beyond the jurisdiction of the courts. The final additional list was prepared and published on 25.11.2015, in which the names of the applicants is stated to have been left out. The application before the Tribunal was filed in October, 14 2018, a little short than three years. Delay in seeking redressal in service matters which deal with conditions in service is to be ordinarily viewed strictly in light of possibility of creation of new rights in the interregnum.
18. In the present case, it is the assertion of the State that in terms of Karnataka Civil Services (Absorption of the persons appointed to the State Civil Services with the benefit of Rural Weightage (Special) Rules, 2003 (Annexure-A12), posts have been filled up. The factual assertion at para 8 of the application regarding appointment made under the Special Rules, 2003 has been acknowledged and reads as follows:
"8. That the final additional list of the year 1998-1999 contents (sic) the names of candidates who are already working as teachers in their respective schools as per 1st list and Special Rule, 2003 list and its (sic) causing irreparable injury, inconvenience and hardship to the applicants.
(emphasis supplied) 15
19. Accordingly, even on admitted facts if appointments have been made under the Special Rules of 2003, the additional list ceases to exist and no rights can be claimed under it. Accordingly, the right to have such additional list rectified is not available after recruitment has been made under the Special Rules, 2003. Under such rules, such of the employees whose services had been terminated in pursuance of court orders were sought to be absorbed in the civil services of the State as a one time measure. The said rules also provided for application of all other rules 'insofar as they are not inconsistent with the provisions of these rules." (See Section 5 of the Rules).
20. Thus, the question of relying on the additional list would not arise once the appointments have been made under the Special Rules of 2003. Such contentions have been made by the petitioners themselves in para 8 of the application and has been asserted in Application No.1902/2008 and connected matters referred to by the Tribunal. Thus, the delay in challenging the additional list of 2015 in the year 2018 16 has in effect taken away the substantive right to challenge the correctness of the additional list by virtue of the appointment under the Special Rules, 2003. Such aspect not having been considered by the Tribunal goes to the root of the matter, warranting interference in the present proceedings.
21. The applicants have relied upon the judgments in the case of STATE OF JAMMU AND KASHMIR AND OTHERS v. SAT PAL [(2013) 11 SCC 737] and G.MANJUNATHA GAPNGAPPA AND OTHERS v. STATE OF KARNATAKA AND OTHERS [2017 SCC Online KAR 6710].
22. The co-ordinate Bench in the case of G.Manjunatha (supra) had directed the consideration of candidates whose names were there in the additional list despite subsequent notification for recruitment on the specific ground that the posts notified in the earlier round of recruitment were not made a part of the subsequent recruitment notification. Further it is pertinent to note that the candidates in the aforesaid 17 case were in fact called upon to submit their testimonials for verification and documents were verified. However, after issuance of the fresh notification the Government gave up the recruitment under the earlier additional list. In light of the specific finding that the subsequent list did not contain the posts of the earlier list relief was afforded. Such specific plea is absent in the present case and the petitioners have in fact admitted to filling up of posts under the Special Rules and are still seeking for rights under the old list which would not be permissible and accordingly, the said case is not applicable.
23. Insofar as the judgment of the Apex Court in the case of STATE OF JAMMU AND KASHMIR AND OTHERS (supra), the Apex Court was considering the case of a candidate who was high up in the list and just below the selected candidate Triloknath who had not joined. The court noticed that there was no other candidate higher than Sat Pal in the merit list available out of the posts reserved for Scheduled Caste candidates. While observing so, the court held that 18 Sat Pal was required to be appointed against the vacancy which was offered to Triloknath. The factual matrix in the present case is entirely different and the applicants in the present matter fall much below the cut off provided for in the additional list and rest their case on a re-working of the additional list and accordingly, the above judgment also would not come to the aid of the applicants.
24. Accordingly, the petition is allowed and the impugned order passed by the Administrative Tribunal is set aside and the endorsements dated 28.09.2015 issued by the fourth respondent (petitioner No.4 herein) at Annexure-A4 to A7 are upheld.
Sd/-
JUDGE Sd/-
JUDGE Np/-