Karnataka High Court
The State Of Karnataka vs S Jahnavi on 27 May, 2013
Bench: D.V.Shylendra Kumar, B.S.Indrakala
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 27th day of May, 2013
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MRS JUSTICE B S INDRAKALA
Writ Petition No. 11020 of 2013 (S-KAT)
BETWEEN:
THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
HOME DEPARTMENT,
VIDHANA SOUDHA
BANGALORE - 560 001. ... PETITIONER
[By Sri C Jagadish, Spl. Govt. Advocate]
AND:
S JAHNAVI
D/O M SRINIVASAMURTHY
AGED ABOUT 32 YAERS
R/AT NO.12, GOMATHI
8TH MAIN, BINNY HBCS LAYOUT
2ND STAGE, VIJAYANAGAR
BANGALORE - 560 040 ... RESPONDENT
[By Sri P S Rajagopal, Sr. Counsel for
Sri B M Irishad Ahmed, Adv. for C/R]
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT,
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI,
QUASHING THE ORDER DATED 21.11.2012 PASSED BY THE
HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL AT
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BANGALORE IN APPLICATION NO.614/2010 PRODUCED
ANNEXURE - A AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, SHYLENDRA KUMAR J., MADE THE FOLLOWING:
ORDER
This writ petition by the state of Karnataka is directed against the order dated 21-11-2012 passed by the Karnataka Administrative Tribunal, Bangalore in Application No 614 of 2010, an application filed by the respondent in this writ petition, and allowing the application, by quashing the endorsement dated 7-1-2010 bearing No ME 44 ¥ÀÉÆ ¹¥À 2008 (¨sÁUÀ), issued to the respondent by the state government, declining to issue an appointment order in favour of the respondent for the reason that the appeal filed by one Smt Rajashree Yamanappa Nayak, against the validation of the caste certificate issued by the district caste verification committee in favour of the respondent is pending before the appellate authority.
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2. Respondent was an aspirant for appointment under the State and had written an examination conducted by the Karnataka public service commission in respect of selection to the posts of gazetted probationers group A and B posts. The respondent had been selected to the post of deputy superintendent of police [Group-A] and had been recommended for appointment to be made by the state government. Respondent had applied against a post reserved in favour of a person belonging to scheduled tribe [woman] and her candidature was considered under this category.
3. State government has not issued appointment order in favour of the respondent, mainly for the reason that there was a dispute about the caste validity certificate issued in favour of the respondent; that the certificate validating her caste as issued by the district caste verification committee, Bangalore district, was questioned by a private person by name Smt Rajashree Yamanappa 4 Nayak, by filing an appeal to the appellate authority and that the matter is pending before the appellate authority and therefore pending disposal of the appeal, there was no need to issue an appointment order in favour of the respondent.
4. It is questioning this decision of the state government to defer the appointment of respondent pending decision of the appellate authority, respondent approached the tribunal seeking for relief of a direction to the state government to appoint her.
5. The application was resisted on several grounds and it was principally put forth by the state government that the father of the applicant had played fraud by tampering his school records; that school records though originally showed that he belonged to Kaniyar caste, it had been later manipulated to show that he belongs to Kaniyan caste, the significance of which being that in Kollegal taluk of Chamarajanagar district, from which place the 5 respondent claims to hail, Kaniyan caste is a scheduled tribe caste, whereas Kaniyar caste is one of the castes listed in backward class category IIA.
6. It was urged on behalf of the state that there is no need to appoint the respondent-applicant even when an appeal is pending before the appellate authority regarding the validity of the caste certificate; that as the certificate issued in favour of the respondent-applicant was under
cloud, the state was justified in deferring issue of appointment order to the respondent-applicant.
7. However, this argument on behalf of the state did not find favour with the tribunal and the tribunal noticing that the respondent-applicant's selection and appointment being disputed by a private person and on the other hand the caste certificate issued by the tahsildar indicating that she belongs to Kaniyan caste, which is an ST caste, had not been disproved or set aside, but on the other hand had been verified and confirmed by 6 the district caste verification committee and therefore opined that denying appointment on the ground of pendency of an appeal in the matter, cannot be proper and consequently issued directions to the state government to forthwith appoint the respondent-applicant and at any rate within a period of one month and fixed her seniority and pay on par with the junior in the list who had been selected and appointed already.
8. It is aggrieved by this order, the present writ petition by the state government.
9. While Sri C Jagadish, learned special government advocate, appears for the petitioner-state, respondent had entered caveat through counsel and is represented by Sri P S Rajagopal, learned senior counsel.
10. Though the matter has come up for preliminary hearing, with the consent of both counsel, it is taken up for disposal.
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11. Appearing on behalf of the petitioner-state, Sri C Jagadish would vehemently urge that the tribunal failed to see that the respondent-applicant was a person who had played fraud; that she did not deserve any sympathy or indulgence before the tribunal; that her caste certificate which had been issued in the year 2009 is certified, not necessarily in conformity with the school records of her father, which had earlier indicated that caste of her father as Kaniyar; that it had been subsequently tampered to show that he belongs to Kaniyan caste and based on that the respondent- applicant had also obtained a false caste certificate, as one belongs to Kaniyan caste and therefore the tribunal should have dismissed the application and at any rate even if any direction is to be issued, it should have been necessarily made subject to the outcome of the appeal pending before the appellate authority. 8
12. Sri Jagadish has placed reliance on the decision of the Supreme Court in the case of GEETHA vs STATE OF MP [2007 AIR SCW 3892], particularly the observations contained in para-22, distinguishing the earlier decision of the Supreme Court rendered in the case of KUMARI MADHURI PATIL vs ADDITIONAL COMMISSIONER, TRIBAL DEVELOPMENT [(1994) 6 SCC 241] and submits that this court should set aside the order passed by the tribunal and dismiss the application.
13. On the other hand, Sri P S Rajagopal, learned senior counsel appearing for the respondent-applicant, has very vehemently urged that the respondent is a person who had produced a caste certificate issued by the competent authority indicating that she belongs to Kaniyan caste; that this caste is treated as an ST caste in Kollegal taluk; that this has also been verified by the district caste verification committee and not disproved and in this state of affairs, even assuming that an appeal is filed against 9 these proceedings by a private party, that cannot come in the way of the state government making appointment pending decision by the appellate authority and appointment can always be subject to the outcome of the appeal proceedings before the appellate authority.
14. Sri Rajagopal would also submit that the fact that independent criminal proceedings initiated at the instance of a private party by the state government, one against the respondent-applicant and the other against her father and sister, which were subject matter of criminal petitions before this court and in exercise of jurisdiction under Section 482 CrPC, this court had quashed these criminal proceedings and though it is claimed that an SLP has been filed before the Supreme Court by the private party challenging the said decision of this court, it cannot come in the way of the respondent being appointed against a selected post so long as the 10 appointment is made subject to the outcome of the pending proceedings.
15. Sri Rajagopal would place reliance on the decision of the Supreme Court in the case of R KANDASAMY vs CHIEF ENGINEER, MADRAS PORT TRUST [(1997) 7 SCC 505]. It is submitted that when once competent authority has issued a caste certificate and verified by other competent verification committee, such certificate should be acted upon and cannot be doubted, unless it has been set aside or cancelled in a manner known to law and as of now, except for pendency of an appeal before the appellate authority challenging the caste certificate, no stay is granted by any authority, the state government is bound to act upon the caste certificate and therefore submits that the order passed by the tribunal is very correct and in accordance with law and does not call for interference.
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16. Sri Rajagopal would also urge that the allegation of fraud is let loose on the respondent without much thought and the state, which by itself is not taking any action is only relying upon the action of a private person, which cannot be taken note of for interference with the order passed by the tribunal.
17. It is not in dispute that the caste certificate produced by the respondent-applicant and based on which the selection has been made and recommended for appointment is remained in force as on date. It is neither cancelled nor stayed by any competent authority. Even criminal proceedings which had been initiated at the instance of the private person have met an end by the order passed by this court exercising jurisdiction under Section 482 CrPC. In this state of affairs, we do no think that the tribunal has committed any grave error or illegality warranting interference by this court in the 12 exercise of jurisdiction under Article 227 of the Constitution of India.
18. However, we make it amply clear that for the satisfaction of the petitioner and others, law is not any different and appointment is always subject to the outcome of the pending appellate proceedings before the appellate authority relating to issue of caste certificate in favour of the respondent. In fact this is the position even according to Rule 5A of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments etc) Rules, 1992.
19. Consequently, this writ petition is disposed of subject to the observation that the appointment order being issued to the respondent in terms of the direction of the tribunal shall be always subject to the outcome of the pending appellate proceedings initiated before the appellate authority by a private person, who had complained against the conduct of the respondent. 13 Appointment proceeding shall be completed within two months from today.
Sd/-
JUDGE Sd/-
JUDGE *pjk