Karnataka High Court
Praveen S Patil vs Director (Admin And Hr) on 1 February, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 100972 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 100972 OF 2022 (S-RES)
BETWEEN:
PRAVEEN S PATIL
AGE 30 YEARS, OCC. NIL,
R/O. SIDDESHWAR NAGAR,
SHIRGUPPI, TQ. KAGWAD,
DIST. BELAGAVI.
Digitally signed by
CHANDRASHEKAR ...PETITIONER
LAXMAN
KATTIMANI
Location: HIGH (BY SMT. ARCHANA A. MAGADUM, ADVOCATE &
COURT OF
KARNATAKA SRI ARVIND A. MAGADUM, ADVOCATE)
DHARWAD
AND:
1. DIRECTOR (ADMIN. AND HR.)
CORPORATE OFFICE,
KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
KAVERI BHAVAN,
BENGALURU-560 009.
2. CHAIRMAN
HESCOM COMPANY LEVEL
RECRUITMENT COMMITTEE AND
DIRECTOR (TECHNICAL)
HESCOM, HUBBALLI-580025.
3. PUBLIC INFORMATION OFFICER AND ACCOUNTANT
HUBBALLI ELECTRICITY SUPPLY COMPANY LIMITED
OLD P.B. ROAD, NAVANAGAR,
HUBBALLI-580025.
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WP No. 100972 of 2022
...RESPONDENTS
(BY SRI P.V. GUNJAL, ADVOCATE FOR R-1;
SRI B.S. KAMATE, ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OR ORDER IN THE NATURE OF WRIT OF CERTIORARI
QUASHING IMPUGNED NOTIFICATION DATED 01.02.2022 VIDE
ANNEXURE-V TO THE POST OF JUNIOR ENGINEER (ELEC.)
HESCOM UNDER GM RURAL CATEGORY PASSED BY
RESPONDENT NO.1 AND ETC.
THIS PETITION COMING ON FOR FURTHER DICTATION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The 1st respondent - KPTCL had issued a notification dated 8/9/2016 inviting applications from the eligible candidates for appointment to the posts of Junior Engineer (Elec.) (for short `JE (Elec) among other posts in the various ESCOM's across the state, and in terms of the said notification, the petitioner and other candidates submitted applications to consider their case for appointment to the post of JE (Elec.) in Respondent- HESCOM under the GM (Rural) category.
2. The respondent - HESCOM after considering the eligibility of the respective candidates, published the final selection list of JE (Elec.) of the five candidates for appointment to the post of GM (Rural). Out of the total five candidates, two -3- WP No. 100972 of 2022 candidates were not issued with the appointment orders, since verification of their caste and character certificates were pending before the Deputy Commissioner.
3. The petitioner sought information under the Right To Information Act as to why the respondent - HESCOM has not notified the waiting list to the post of JE (Elec.) among other posts. The respondent - HESCOM issued the information under Right to Information Act on 23.3.2020 stating that the vacant posts which have not been filled up will be filled up by treating the same as backlog posts.
4. The petitioner submitted a representation on 9.7.2020 calling upon the respondent - HESCOM to publish the waiting list, since he was eligible. Since the representation was not considered, the petitioner filed WP No.147608/2020. The respondents No.2 and 3 filed a statement of objection contending that the vacant posts will be filled up, by publishing them as backlog vacancies in the next recruitment. This Court by order dated 3/8/2021 directed the respondent-HESCOM to complete the selection process in respect of the unfilled posts. -4- WP No. 100972 of 2022
5. The HESCOM resolved to close the selection process under the notification dated 8/19/2016, and in the meanwhile, KPTCL issued a fresh notification dated 1/2/2022 to fill up the post of JE (Elec) in the ESCOMs across the Karnataka among other posts. Taking exception to the same, this petition is filed.
6. The learned counsel appearing for the petitioner would make the following submissions:
i) Regulation VI of the Recruitment and Promotion Regularizations, Employees (Probation) Regulations and Employees (Seniority) Regulations published by the KPTCL specifies that the recruiting authority shall prepare the reserve list of names of the candidates not included in the list prepared in which number of the candidates to be included shall be 50% of the number of vacancies notified and the said Rules specifies that the waiting list shall be operated for a period of one year from the date of approval of the main list. Hence, the recruiting authority HESCOM ought to have published the waiting list including the name of the petitioner.
ii) Two posts of JE (Elec) having fallen vacant, the petitioner who is meritorious is entitled for appointment to the post of JE (Elec) in the light of the notification dated 8/9/2016.-5- WP No. 100972 of 2022
iii) In respect of the other posts, the HESCOM has published reserve lists and non-publication of the reserve list insofar as it relates to JE (Elec) is arbitrary and discriminatory.
iv) In support of his contentions, reliance is placed on the decisions of Hon'ble Supreme Court in State of Jammu and Kashmir v. Satpal (2013) 11 SCC 737 and K Jayamohan v. State of Kerala and another (1997) 5 SCC 170.
7. On the other hand, learned counsel appearing for the respondent-HESCOM would make the following submissions:
i) Non-publication of the reserve list to the post of JE (Elec.) was due to the fact that the verification of the caste and character certificates were pending consideration before the Deputy Commissioner.
ii) Pending the decision of the HESCOM to publish the reserve list, the KPTCL had issued a fresh notification dated 5/2/2019 inviting applications for filling up of five vacant posts of JE (Elec.) in HESCOM under GM (Rural) category. The publication of the reserve list is not mandatory, since clause VI (C) (v) of the Recruitment and Promotion Regularizations, Employees (Probation) Regulations and Employees (Seniority) Regulations specifies that the list so prepared under (c) (iii) and (iv) above shall be notified in such manner as the Board may -6- WP No. 100972 of 2022 direct and such list shall be sent to the appropriate appointing authority.
iii) Merely because the other ESCOM's have published the reserve list, the HESCOM is not under obligation to publish the reserve list and the same is not mandatory.
iv) A right to seek appointment is not a fundamental right.
8. I have examined the submissions made by the learned counsel for the parties.
9. In pursuance of the notification dated 8/9/2016, the final selection list was published by the HESCOM notifying the selection of five candidates under GM (Rural) category to the post of JE (Elec).
10. Clause VI (C) (i) to (v) of the Recruitment and Promotion Regularizations, Employees (Probation) Regulations and Employees (Seniority) Regulations published by the KPTCL reads as under:
"C) i) The Recruiting Authority shall interview the eligible candidates selected under (b) (i) & (ii) above and award marks on the basis of their performance in the interview. The object of such an interview is to assess the suitability of the candidates for appointment to the post applied for by them and the calibre including intellectual and -7- WP No. 100972 of 2022 social traits of personality. The ratio of marks between academic qualification and interview shall be 90:10. However, in the case of recruitment of Driver Gr. II, the ratio of marks shall be 75: 25 (Refer Regn. No. 19)
ii) The Recruiting Authority shall publish on the notice board of its office, on the day on which the interview/oral test is held or on the day following but before the commencement of the interview or oral test on that day, a list of marks obtained by each candidate in the said interview or oral test, provided that, where the interview or oral test is held in any place other than the place of its office the said list shall be published in such other place.
iii) The Recruiting Authority shall on the basis of the total marks secured in the qualifying examination as determined under (b) (i) above and adding (b) (iii) and of the marks secured at the interview/oral test under (c) (i) above and taking into consideration the orders in force relating to reservation of posts for SC, ST and other backward classes, prepare a main list of candidates eligible for appointment, in the order of merit to the cadre or post. If the aggregate percentage of total marks secured in the qualifying examinations as determined under (b) (i) & (iii) above and of the marks secured at the interview/oral test under (c) (i) above are equal in respect of two or more candidates, the order of merit in respect of such candidates shall be fixed in accordance with Note under (b) (i) above The number and names of candidates, to be included in such list, shall be equal to the number of vacancies notified.
iv) The Recruiting Authority shall in accordance with the provisions of (c) (iii) above also prepare a reserve list of names of candidates not included in the list prepared under (c) (iii) above in which the number of candidates to be included shall be 50% (fifty percent) of the number of vacancies notified, and may be operated within a period of one year -8- WP No. 100972 of 2022 from the date of approval of the main list or till the next recruitment whichever is earlier
v) The lists so prepared under (c) (iii) and (iv) above shall be notified in such manner as the Board may direct and such list shall be sent to the appropriate appointing authority."
11. Reading of Regulation VI (C) (ii) specifies that the Recruiting Authority shall publish on the notice board on the day on which the interview/oral test is held or on the day following but before the commencement of the interview or oral test on that day, a list of marks obtained by each candidate in the said interview or oral test.
12. Regulation VI (C) (iii) specifies that the Recruiting Authority shall on the basis of the total marks secured in the qualifying examination and the marks secured in the interview or oral test under (c) (i) above and taking into consideration the orders in force relating to reservation of posts for SC, ST and other backward classes, prepare a main list of candidates eligible for appointment, in the order of merit to the cadre or post.
13. Regulation VI (C) (iv) specifies that the Recruiting Authority shall in accordance with the provisions of (c) (iii) -9- WP No. 100972 of 2022 above also prepare a reserve list of names of candidates not included in the list prepared under (c) (iii) above in which the number of candidates to be included shall be 50% (fifty percent) of the number of vacancies notified. Regulation VI (C) (V) specifies that the lists so prepared under (c) (iii) and (iv) above shall be notified in such manner as the Board may direct and such list shall be sent to the appropriate appointing authority.
14. In the instant case, HESCOM has not prepared the reserve list as specified under Regulation VI (C) (iv) and sent the same to the board to seek appropriate direction as specified under Regulation VI (C)(v).
15. Meanwhile, the respondent - KPTCL published employment notification dated 25.9.2019 inviting applications to fill up the thirteen posts of JE (Elec.) in HESCOM under Rural quota and four posts under the women quota and physically challenged candidates towards backlog posts.
16. In the proceedings of the respondent - HESCOM held on 4.2.2020, which is produced along with the synopsis, it was resolved not to fill up three unfilled posts of JE (Elec.)
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WP No. 100972 of 2022 under the notification 8.9.2016 stating that the KPTCL had already issued a fresh employment notification dated 25.2.2019. In the proceedings of the respondent - HESCOM held on 28.2.2022, it was resolved to treat all the unfilled posts due to non-receipt of sindhutwa certificates from the concerned authority as backlog posts and conclude the recruitment process by reserving two posts under SC category and one post under 2A category. However, in the very same proceedings, the 1st respondent has taken a decision to fill the unfilled posts of Assistant Accountant, Assistants and Junior Assistants from the waiting list.
17. The two posts of JE (Elec.) under the GM category having been unfilled for non-receipt of sindhutwa certificates, the respondent - HESCOM was obligated under Regulation
(vi)(c)(iv) to prepare a reserve list of the unfilled posts and send the same to the respondent No.1 - KPTCL for approval. The said requirement is mandatory, and there is no provision in the recruitment Rules for treating the unfilled posts as backlog posts so as to deprive the petitioner and similarly situated persons of their rights to be considered for appointment.
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WP No. 100972 of 2022
18. The right to appointment is not a fundamental right. The Hon'ble Supreme Court in the case of State of Jammu and Kashmir -vs- Satpal (2013) 11 SCC 737) at para- 12 has held as follows:
"12. The date of filing of a representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be a different legal proposition, if the appointment authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22-4-2008 by itself leads to the inference that the vacancy under reference arose within the period of one year i.e. during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath negates the proposition posed above i.e. the desire of the employer not to fill up the vacancy. herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy over and above the posts of which the process of selection/recruitment was conducted. Based on the aforesaid inference, we have no
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hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal against the vacancy which was offered to Trilok Nath."
19. The Hon'ble Supreme Court in the case of K Jayamohan -vs- State of Kerala and another (1997) 5 SCC 170 at para-5 has held as follows:
"5. It is a settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non- appointment. Equally, the Public Service Commission/recruitment agency shall prepare a waiting list only to the extent of anticipated vacancies. In view of the above settled legal position, no error is found in the judgment of the High Court warranting interference."
20. The Regulations mandate publication of reserve lists, in the event, the posts remain unfilled due to various factors. The respondent - HESCOM has taken a decision to fill the unfilled posts other than JE (Elec.) posts which is arbitrary
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WP No. 100972 of 2022 and discriminatory. The two posts of JE (Elec.) having not been filled up , the respondent- HESCOM by not publishing the reserve list has deprived the legitimate right of the Petitioner for consideration of his case for appointment , which is in violation of Articles 14 & 16 of the Constitution of India. Hence, the case of the petitioner as well as other similarly situated persons for appointment requires to be considered by publishing the waiting list. Accordingly, I pass the following:
ORDER
i) Writ petition is allowed.
ii) The impugned notification dated 1.2.2022 issued by the 1st respondent at Annexure-V insofar as it relates to selection to the two posts of JE (Elec.) (HESCOM) under the GM Rural category is hereby quashed.
iii) The 2nd respondent is hereby directed to publish the reserve list to the two unfilled posts of JE (Elec.) (GM-Rural category) under the notification dated 8.9.2016 at Annexure-A, and consider the case of the petitioner and other similarly situated persons for selection and
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appointment to the posts of JE(Elec.). The said exercise shall be concluded within a period of two months.
Sd/-
JUDGE Vb/- / bkm