Karnataka High Court
Durgappa S/O Fakkirappa Madar vs The State Of Karnataka on 2 August, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC-D:8105
WP No. 101695 of 2023
C/W WP No. 148684 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 101695 OF 2023 (S-RES)
C/W
WRIT PETITION NO. 148684 OF 2020 (S-RES)
W.P. NO. 101695 OF 2023:
BETWEEN:
1. SHRI. DURGAPPA S/O FAKKIRAPPA MADAR,
AGE.. 43 YEARS, OCC.. POURAKARAMIKARU,
TOWN MUNICIPALITY BANKAPUR-581202,
TQ.. SHIGGAON, DIST.. HAVERI.
2. SHRI. DURGAPPA S/O YALLAPPA MADAR,
AGE.. 36 YEARS, OCC.. POURAKARAMIKARU,
TOWN MUNICIPALITY BANKAPUR-581202,
TQ.. SHIGGAON, DIST.. HAVERI.
3. SHRI. NAGAPPA S/O SANGAPPA KUDAL @ MADAR,
AGE.. 36 YEARS, OCC.. POURAKARAMIKARU,
VISHAL TOWN MUNICIPALITY BANKAPUR-581202,
NINGAPPA TQ.. SHIGGAON, DIST.. HAVERI.
PATTIHAL 4. SHRI. SURESH S/O DURGAPPA MADAR,
AGE.. 40 YEARS, OCC.. POURAKARAMIKARU,
Digitally signed by TOWN MUNICIPALITY BANKAPUR-581202,
VISHAL NINGAPPA TQ.. SHIGGAON, DIST. HAVERI.
PATTIHAL
Date: 2023.08.09 5. SHRI. UDACHAAPPA S/O DURGAPPA MADAR,
11:24:39 +0530
AGE.. 45 YEARS, OCC.. POURAKARAMIKARU,
TOWN MUNICIPALITY BANKAPUR-581202,
TQ.. SHIGGAON, DIST.. HAVERI.
6. SMT. NIRMALA S/O FAKKIRAPPA MADAR,
AGE.. 43 YEARS, OCC.. POURAKARAMIKARU,
TOWN MUNICIPALITY BANKAPUR-581202,
TQ.. SHIGGAON, DIST.. HAVERI.
... PETITIONERS
(BY SRI. PRUTHVI K S., ADVOCATE)
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NC: 2023:KHC-D:8105
WP No. 101695 of 2023
C/W WP No. 148684 of 2020
AND:
1. THE STATE OF KARNATAKA,
RPTD. BY ITS PRL. SECRETARY,
DEPT. OF PRIMARY & SECONDARY EDUCATION,
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU-560001.
2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION,
VIKAS SOUDHA, AMBEDKAR VEEDHI,
BENGALURU-560001.
3. THE DEPUTY COMMISSIONER,
HAVERI, TQ. & DIST.. HAVERI,
EX-OFFICIO PRESIDENT SELECTION & DIRECT
RECRUITMENT AUTHORITY (POURAKARMIKAS),
HAVERI-581110, DIST.. HAVERI.
4. THE TOWN MUNICIPALITY,
BANKAPUR-581202,
TQ.. SHIGGAON, DIST.. BANKAPUR,
RPTD BY ITS CHIEF OFFICER.
... RESPONDENTS
(BY SRI. V S KALASURMATH, HCGP FOR R1-R3;
SRI. K H BAGI, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICELS 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER
DTD.22/02/2023 BEARNG NO. JINAKO/ POUNE/VAHI-150/2017-18
VIDE ANNEXURE-H PASSED BY THE RESPONDENT NO.3 IN SO FAR
AS PETITIONERS ARE CONCERNED.
W.P. NO. 148684 OF 2020:
BETWEEN:
1. DURGAPPA S/O FAKKIRAPPA MADAR,
AGE. 41 YEARS, OCC. POURAKARMIKARU,
TOWN MUNICIPALITY, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115.
2. SURESH S/O DURGAPPA MADAR,
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NC: 2023:KHC-D:8105
WP No. 101695 of 2023
C/W WP No. 148684 of 2020
AGE. 38 YEARS, OCC. POURAKARMIKARU,
TOWN MUNICIPALITY, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115.
3. DURGAPPA S/O YALLAPPA MADAR,
AGE. 34 YEARS, OCC. POURAKARMIKARU,
TOWN MUNICIPALITY, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115.
4. NAGAPPA S/O SANGAPPA KUDAL @ MADAR,
AGE. 34 YEARS, OCC. POURAKARMIKARU,
TOWN MUNICIPALITY, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115.
5. MALTESH @ MAHANTESH S/O NEELAPPA RAMGERI
SINCE DECEASED BY HIS LR'S
5A. SMT. NIRMALA W/O LATE MALTESH RAMGERI,
AGE. 35 YEARS, OCC. COOLIE,
HARIJAN KERI, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115.
5B. KUMAR. NEELAPPA S/O LATE MALTESH RAMGERI,
AGE. 17 YEARS, OCC. STUDENT,
HARIJAN KERI, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115.
MINOR REPRESENTED BY M/G MOTHER
PETITIONER NO.5A
6. NAGAPPA S/O DURGAPPA MADAR,
AGE. 34 YEARS, OCC. POURAKARMIKARU,
TOWN MUNICIPALITY, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115.
7. NINGAPPA S/O MAILAPPA MADAR,
AGE. 25 YEARS, OCC. POURAKARMIKARU,
TOWN MUNICIPALITY, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115.
8. UDACHAPPA S/O DURGAPPA MADAR,
AGE. 43 YEARS, OCC. POURAKARMIKARU,
TOWN MUNICIPALITY, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115.
... PETITIONERS
(BY SRI. PRUTHVI K.S., ADVOCATE)
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NC: 2023:KHC-D:8105
WP No. 101695 of 2023
C/W WP No. 148684 of 2020
AND:
1. THE STATE OF KARNATAKA,
REPTD. BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
BOARDS & MUNICIPAL ADMINISTRATION,
M.S. BUILDING, BENGALURU-01.
2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION,
VIKAS SOUDHA, AMBEDKAR VEEDHI,
BENGALURU-01.
3. THE DEPUTY COMMISSIONER, HAVERI,
TQ. & DIST. HAVERI,
EX-OFFICIO PRESIDENT SELECTION
& DIRECT RECRUITMENT AUTHORITY,
PURAKARMIKAS, HAVERI-581110.
4. THE PROGRAM DIRECTOR,
TREASURY URBAN DEVELOPMENT,
OFFICE OF DEPUTY COMMISSIONER,
HAVERI-581110.
5. THE TOWN MUNICIPALITY, BANKAPUR,
TQ. SHIGGAON, DIST. HAVERI-581115,
RPTD., BY ITS CHIEF OFFICER.
... RESPONDENTS
(BY SRI. V S KALASURMATH, HCGP FOR R1-R4;
SRI. K H BAGI, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICELS 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE
NATURE OF CERTIORARI BY QUASHING THE IMPUGNED FINAL
SELECTION PROCEEDING LIST VIDE ANNEXURE.H DTD. 17.11.2020
BRG. NO. NIL ISSUED/PASSED BY THE RESPONDENT NO.3 & ETC.
THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:8105
WP No. 101695 of 2023
C/W WP No. 148684 of 2020
ORDER
1. Petitioners are before this Court seeking following prayer:
IN WP.No.101695-2023:
i) Issue a writ in the nature of certiorari by quashing the impugned order dtd.22/02/2023 bearing no.
JINAKO/ poune/vahi-150/2017-18 vide annexure-h passed by the respondent no.3 in so far as petitioners are concerned.
ii) Issue such other suitable orders or directions as this Hon'ble court deems fit and proper in the nature and circumstances of the case, in the interest of justice and equity.
IN WP.No.104684-2020:
i) To issue writ in the nature of certiorari by quashing the impugned final selection proceeding list vide Annexure-H, dated 17.11.2020 brg. no. nil issued/passed by the respondent no.3 & etc.
ii) Issue writ in the nature of mandamus directing the respondent no.3 to objections of the petitioners vide Annexure-j and j1, dated 30.11.2020 and further direct the respondent no.3 to consider the case of the petitioner and absorb them by way of direct recruitment (neera nemakati), in the interest of justice and equity.-6-
NC: 2023:KHC-D:8105 WP No. 101695 of 2023 C/W WP No. 148684 of 2020
iii) Issue such other suitable orders or directions as this Hon'ble court deems fit and proper in the nature and circumstances of the case, in the interest of justice and equity.
2. Learned counsel for petitioners submits that issue in the lis stands covered by the judgment rendered by the Co-ordinate Bench in W.P.No.6155/2019, disposed of on 22.6.2022, wherein the Co- ordinate Bench has held as follows:
ORDER The petitioners were stated to have been appointed as 'Pourakarmikas' (civil labour) by respondent No.4 in the office of the Pattana Panchayathi, Jagaluru in the year 2002. It is further submitted that they were working on ad- hoc basis and continued to work till their removal as per the order at Annexure- G dated 06.09.2018. It is further submitted that a policy decision was taken for filling up of posts of Pourakarmika as per the Government Order dated 07.08.2017 at Annexure- A. It is submitted that in terms of clause (D) "ªÉÄîÌAqÀ ¤AiÀĪÀÄUÀ¼ÀAvÉ gÁdåzÀ°è£À ªÀĺÁ£ÀUÀgÀ¥Á°PÉUÀ¼ÀÄ (§ÈºÀvï ¨ÉAUÀ¼ÆÀ gÀÄ ªÀĺÁ£ÀUÀgÀ¥Á°PÉ M¼ÀUÉÆqÀAvÉ), £ÀUÀgÀ¸À¨sÉ, ¥ÀÄgÀ¸À¨sÉ ªÀÄvÀÄÛ ¥ÀlÖt ¥ÀAZÁ¬ÄwUÀ¼À°è ¥Àæ¸ÀÄÛvÀ SÁ° JgÀĪÀ ¥ËgÀPÁ«ÄðPÀgÀ ºÀÄzÉÝUÀ¼À£ÀÄß ¨sÀwð ªÀiÁqÀĪÀÅzÀÄ ºÁUÀÆ ¥Àæ¸ÀÛgÀ PÉëêÀiÁ©üªÀÈ¢Ý, ¢£ÀUÀÆ°, UÀÄwÛUÉ, ¸ÀªÀiÁ£À PÉ®¸ÀPÉÌ ¸ÀªÀiÁ£À ªÉÃvÀ£À ªÀÄvÀÄÛ ºÉÆgÀUÀÄwÛUÉ, DzsÁgÀzÀ ªÉÄÃ¯É PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀªÀ vÁvÁÌ°PÀ ¥ËgÀPÁ«ÄðPÀjUÉ DzÀåvÉ ¤ÃqÀĪÀÅzÀÄ", the vacant posts of Pourakarmika in the Municipal Corporation and Town Municipal Corporation were to be filled up and where the employees were working on daily wage contractual basis and in other -7- NC: 2023:KHC-D:8105 WP No. 101695 of 2023 C/W WP No. 148684 of 2020 categories as indicated therein, preference was to be given to such employees in the process of recruitment. It is further submitted that as per the Notification at Annexure- B, guidelines were laid down relating to appointment of Pourakarmika reiterating the terms and conditions at Annexure-A. It is submitted that the appointment must be made on the basis of seniority and in the event of multiple applicants fulfilling the criteria, resort also to be had to lottery system in terms of clause (4) of the said Notification.
2. It is submitted that pursuant to Annexures- A and B, selection process was held and selection list came to be notified as per Annexure- E dated 18.07.2018. It is submitted that the only ground on which the petitioners' application were rejected was that they were not working as 'Pourakarmikas'.
3. Learned counsel appearing for the petitioners submits that the selection and rejection list at Annexure- E itself details the date of joining of service of the petitioners at coloumn No.3 and the remark that "the petitioners were not working as Pourakarmikas"
requires to be re-looked. It is further pointed out that as per the order of removal on 06.09.2018 at Annexure- G, the petitioners were shown as loaders/valvemen. It is submitted that though the petitioners were working as loaders/valvemen by virtue of Annexure- C dated 04.12.2017, there is a -8- NC: 2023:KHC-D:8105 WP No. 101695 of 2023 C/W WP No. 148684 of 2020 clarification that during the process of employing of Pourakarmika, the loaders and the cleaners who were working in Solid Waste Management Work are also to be treated as 'Pourakarmika' during the process of taking them on "out source basis". It is submitted that the petitioners were performing the work of Pourakarmikas and even as per the endorsement at Annexure- L series, all the petitioners were stated to be working as 'loaders' by the respondents themselves. The petitioners submit that the policy decision at Annexure- C ought to have been taken note of while considering the eligibility of the petitioners in terms of Annexure- A and for filling up of posts subsequent there to.
4. Learned HCGP appearing for the State submits that the primary ground on which the petitioners' name have been deleted from the selection list is on the ground that the petitioners were not working as 'Pourakarmikas' and accordingly, though as per the order at Annexure- E they were working from 2002 onwards, which finds a mention in coloumn No.3 that as they were not working as Pourakarmikas, they were not considered for selection in terms of the scheme of recruitment pursuant to Annexures- A and B.
5. Insofar as the petitioners working as Assistant valvemen and loaders, the said aspect is not in dispute in light of the very order at Annexure- G which mentions the petitioners having worked and have been ordered for their -9- NC: 2023:KHC-D:8105 WP No. 101695 of 2023 C/W WP No. 148684 of 2020 removal. The only point that would then remain is as to whether the petitioners stood excluded to claim the benefit under Annexures- A and B by virtue of their designation while rendering previous work in the Town Municipal Council. It is not in dispute that the petitioners though were given different designations, were performing the work of Pourakarmika and this would become clear from the letter of appointment at Annexure- Q relating to the petitioners wherein, it is clearly specified that the petitioners are also required to perform the work of cleaning of street and other work related to Solid Waste Management. The endorsement at Annexure- L series refers to the work of the petitioners as 'loaders'. Though, there appears to be some contradiction as regards the description of the post of the petitioners, the fact that they were employed in work relating to Solid Waste Management is not in dispute. The order of appointment at Annexure- Q dated 25.12.2002 describes the work of all petitioners as 'sweeping of waste, collection and transportation' while the work of petitioner No.1 is described as 'driver of the vehicle which transports waste'. The preamble of such order reads that the petitioners have been appointed temporarily for the purpose of 'cleaning work'. The endorsements at Annexure- L series describes all the petitioners as 'loaders' and accordingly have not been considered for appointment. Considering the nature of work and the endorsement at Annexure- L, the petitioners could be construed
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NC: 2023:KHC-D:8105 WP No. 101695 of 2023 C/W WP No. 148684 of 2020 to be 'loaders'.
6. Accordingly, it is to be noticed that the petitioners were performing the work of Pourakarmika though appointed as loaders/sweepers/driver of vehicle used to transport waste, in terms of the Notification at Annexure- C. Looking into the nature of work being performed, they are entitled to be construed as working as 'Pourakarmikas' and accordingly, petitioners are to be considered as being eligible for the benefit of recruitment at Annexures- A and B. The petitioners were senior to those who were selected as is self evident from the order of appointment at Annexure- E. Exclusion of petitioners as per the order at Annexure- E is bad in law. At this point of time, it may not be appropriate to take note of the illegality in appointment of other persons who were junior to that of the petitioners. The only point that would remain is whether the case of the petitioners are required to be considered for appointment In terms of Annexures- A and B, as the petitioners have otherwise fulfilled other eligibility conditions, accordingly the respondents to consider their appointment insofar as available vacant posts are concerned.
7. Learned counsel appearing for the petitioners has produced Annexure- R, which asserts that 13 posts are remained vacant as on date. If that were to be so, the case of the petitioners who were otherwise illegally denied the benefit given to those who are already
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NC: 2023:KHC-D:8105 WP No. 101695 of 2023 C/W WP No. 148684 of 2020 working having been selected as stipulated in Annexures- A and B ought to be considered for appointment as regards vacant posts.
8. Accordingly, rejection of the petitioners' application at Annexure- E is set aside. Case of the petitioners to be considered in terms of Annexures- A and B as regards the selection process carried out culminating in Annexure- E insofar as vacant posts are concerned. The endorsements at Annexures- L1 to L9 are set aside. The proceedings at Annexure- G insofar as the petitioners names are found in the rejected list is set aside.
9. Accordingly, petition is disposed off. It is made clear that the age limit in Annexure- A is required to be relaxed in light of the matter pending before this Court and the case of the petitioners ought to be considered in terms of the discussion made above.
3. Learned counsel for the petitioners would further submit that petitioners who are identically placed are entitled to the same order that is passed by the Co-ordinate Bench.
4. Learned HCGP though would refute the submission but admit that petitioners are similarly placed to that of petitioners in the aforesaid case.
5. For the aforesaid reasons, following:
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NC: 2023:KHC-D:8105 WP No. 101695 of 2023 C/W WP No. 148684 of 2020 ORDER IN WP.No.101695-2023:
Rejection of the petitioners' application at Annexure- H is set aside. Case of the petitioners to be considered in terms of Annexure-
F as regards the selection process carried out culminating in Annexure- H insofar as eight vacant posts are concerned. The proceedings at Annexure- H insofar as the petitioners names are found in the rejected list is set aside.
Accordingly, petition is disposed off. It is made clear that the age limit in Annexure- F is required to be relaxed in light of the matter pending before this Court and the case of the petitioners ought to be considered in terms of the discussion made above.
IN W.P. NO. 148684 OF 2020:
Rejection of the petitioners' application at Annexure- H is set aside. Case of the petitioners to be considered in terms of Annexure-
H as regards the selection process carried out culminating in Annexures - C and D insofar as eight vacant posts are concerned.
The proceedings at Annexure-H insofar as the petitioners names are found in the rejected list is set aside.
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NC: 2023:KHC-D:8105 WP No. 101695 of 2023 C/W WP No. 148684 of 2020 Accordingly, petition is disposed off. It is made clear that the age limit in Annexure- H is required to be relaxed in light of the matter pending before this Court and the case of the petitioners ought to be considered in terms of the discussion made above.
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