Karnataka High Court
The Karnataka Public Service ... vs Sri. Abduol Gafar on 14 September, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:10659-DB
WA No. 100256 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO. 100256 OF 2021 (S-RES)
BETWEEN:
THE KARNATAKA PUBLIC SERVICE COMMISSION
UDYOGA SOUDHA, BENGALURU-560001,
REPTD. BY ITS SECRETARY.
...APPELLANT
(BY SRI. BASAVARAJ GODACHI AND SRI.M.SIDDARAJ, ADVOCATES)
AND:
1. SRI. ABDUL GAFAR S/O. AMEENODDIN MULLA
AGED ABOUT 38 YEARS,
R/AT NEAR JUNNEDIA URDU
HIGHER PRIMARY SCHOOL,
HAZARAT MASAHEB DARGA ROAD,
KUDACHI-591311, TQ: RAIBAG,
DIST: BELAGAVI.
JAGADISH T R
HIGH COURT
2. THE STATE OF KARNATAKA
OF KARNATAKA
DHARWAD
REPRESENTED BY ITS SECRETARY,
BENCH
2023.10.10
DEPARTMENT OF EDUCATION,
11:11:04 +0530 M.S.BUILDING, BENGALURU-560001.
3. KARNATAKA RESIDENTIAL EDUCATIONAL
INSTITUTIONS SOCIETY,
MORARJI DESAI, KITTUR
RANI CHANNAMMA RESIDENTIAL SCHOOL,
REP. BY ITS EXECUTIVE DIRECTOR,
# 8, M S B-1 6TH AND 7TH FLOOR
CUNNINGHAM ROAD, BENGALURU-560052.
...RESPONDENTS
(BY SRI.SHRIHARSH A. NEELOPANT, ADVOCATE FOR R1;
SRI.G.K.HIREGOUDAR, GOVT. ADVOCATE FOR R2;
SRI.SUNIL S.DESAI, ADVOCATE FOR R3)
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NC: 2023:KHC-D:10659-DB
WA No. 100256 of 2021
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED
09.08.2021 IN WP.NO.120071/2020 PASSED BY LEARNED SINGLE
JUDGE OF THIS COURT AND DISMISS THE SAID WRIT PETITION.
THIS WRIT APPEAL COMING ON FOR ORDERS, THIS DAY,
KRISHNA KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra-Court appeal is directed against the impugned order dated 9.8.2021 passed in WP No.120071/2020, whereby the said petition filed by respondent No.1/writ petitioner was allowed by the learned Single Judge.
2. Heard the learned counsel for the appellant;
learned counsel for respondent No.1, learned Government Advocate for respondent No.2 and learned counsel for respondent No.3. Perused the material on record.
3. The material on record discloses that the appellant/KPSC issued a notification dated 3.11.2016 calling for applications from Diploma holders of Arts and Drawing for recruitment of Arts and Drawing Teachers for 230 posts in the State of Karnataka. In the said -3- NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 notification, persons who were "Project Displaced Persons"
were given reservation and priority for the purpose of recruitment pursuant to which respondent No.1/writ petitioner submitted an application dated 28.11.2016 and communication dated 21.12.2019 was issued calling upon to produce original documents for verification on 9.1.2020 on which date, respondent No.1 appeared before the appellant and produced all relevant documents including Project Displaced Persons certificate dated 21.11.2016 issued by Tahsildar. However, the said certificate was not accepted by the appellant on the ground that respondent No.1 had not claimed any reservation as a Project Displaced Person in his application and since representation dated 13.1.2020 submitted by him to consider his candidature under Project Displaced Person category was not considered by the appellant, respondent No.1 approached this Court by way of instant writ petition.
4. The said petition having been contested by the appellant, the learned Single Judge proceeded to pass the -4- NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 impugned order allowing the petition on the ground that since the respondent No.1/writ petitioner had already obtained Project Displaced Persons certificate on 21.11.2016 much prior to filing his application on 28.11.2016 as well as last date for submitting the application which was fixed as 02.12.2016, the inadvertent error due to oversight committed by the respondent No.1/writ petitioner in not claiming reservation under the Project Displaced Persons category in his application despite belonging to the said category and possessing/having such a certificate, the respondent No.1/writ petitioner was entitled to the relief as sought for by him in the petition. The learned Single Judge also took into account the well settled position of law that for the purpose of claiming eligibility it was only the factum of eligibility that was relevant and not production or evidence of the same which can be cured by subsequent production and merely because respondent No.1 had incorrectly stated due to oversight and inadvertence that he did not belong to the said category, in the light of the judgment of -5- NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 the Hon'ble Apex Court in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board & Others1, necessary directions had to be issued to the appellant to accept the caste certificate dated 21.11.2016 of the respondent No.1/writ petitioner and consider his representation and proceed further in accordance with law. While arriving at the aforesaid conclusion, the learned Single Judge held as under:
"The petitioner has approached this Court with a prayer to issue a writ of mandamus directing respondent No.2 to accept the certificate bearing No.AGRCR/799/16-17 dated 21.11.2016 vide Annexure-C issued by the Tahasildar, Raibag, with regard to the Project Displaced Person for the purpose of considering his candidature to the post of Art & Drawing Teacher pursuant to the notification dated 03.11.2016 vide Annexure-A.
2. Petitioner claims to be a resident of Kudachi, Raibag Taluk, Belagavi District. The land belonging to the father of the petitioner was acquired for the purpose of Hipparagi Dam Project. Respondent No.2 had issued a notification dated 03.11.2016 from 1 (2016) 4 SCC 754 -6- NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 the Diploma holders of Art & Drawing for recruitment of Art & Drawing Teachers for 230 posts in the entire State of Karnataka. In the said notification, the Project Displaced Persons were given reservation and priority for the purpose of recruitment. The petitioner being an eligible candidate had submitted an application on 28.11.2016. It is the case of the petitioner that, by oversight, in the column mentioned for Project Displaced Persons, he has stated 'no'. However, he had a certificate issued by the jurisdictional Tahasildar dated 21.11.2016 to the effect that he was a project displaced person. Respondent No.2 had issued a communication dated 21.12.2019 calling upon the petitioner for the purpose of verification of the original documents on 09.01.2020. The petitioner had appeared before respondent No.2 on 09.01.2020 along with all the original documents including the certificate of project displaced person dated 21.11.2016 issued by the Tahasildar, Raibag. However, respondent No.2 refused to accept the said certificate on the ground that in the application submitted by him, the petitioner had stated that he is not claiming any reservation under the project displaced person quota. Therefore, the petitioner made a representation on 13.01.2020 to respondent No.2 for accepting the project displaced person certificate and to consider his candidature under the project displaced person category. Since -7- NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 respondent No.2 has refused to consider the same, the petitioner has approached this Court.
3. Learned counsel for the petitioner submits that the list of selected candidates has not yet been published and even before the same, the petitioner requested respondent No.2 to consider his project displaced person certificate. He submits that the said certificate is dated 21.11.2016, while the last date for filing the application was on 02.12.2016. He submits that the certificate is earlier to the last date of filing the application and therefore, there should not be any impediment for the respondent to consider the same. He submits that since a competent authority has issued the certificate in favour of the petitioner, it has to be presumed that the petitioner is a person who has been displaced because of the project and when the respondents have published a notification stating that reservation and priority shall be given to such displaced persons, if petitioner's prayer to consider the project displaced person certificate is not granted, the petitioner will be put to hardship. He also submits that since the final list of selected candidates is not yet published, no hardship or injury would be caused to anybody, but on the other hand, if the petitioner's prayer is not granted, he will be put to hardship.
4. Per contra, learned counsel appearing for respondent No.2, who has filed his statement of objections, submits that the petitioner in his -8- NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 application had mentioned that he does not claim any reservation under the project displaced person quota. He also submits that the last date for submitting the application was 02.12.2016 and the petitioner has now come forward with the project displaced person certificate only in the year 2019 and therefore, it is not possible for the respondent to consider the same. He submits that if the petitioner's request is considered, the same is likely to open the Pandora's Box and therefore, the petitioner is not entitled to the relief sought.
5. I have carefully considered the rival arguments addressed on both sides and also perused the material on record.
6. It is not in dispute that pursuant to the notification issued by respondent No.2 calling for applications from eligible candidates to the post of Art & Drawing Teacher, the petitioner had made an application vide Annexure-A. It is also not in dispute that in the said notification, the project displaced persons were given reservation and priority for the purpose of recruitment. The competent Officer has issued the certificate dated 21.11.2016 to the petitioner to the effect that he is a project displaced person, as the land belonging to the father of the petitioner bearing R.S.No.630/6 measuring 32 guntas was acquired for the purpose of Hipparagi Dam Project in the year 2004. Though the petitioner had made an -9- NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 application pursuant to the notification published by respondent No.2 herein, it is stated that by inadvertence, he had not claimed any reservation or priority for recruitment in spite of he holding a certificate as a project displaced person as on the date of he making an application. Since the competent Officer has issued the Project Displaced Person certificate to the petitioner, it has to be presumed that the petitioner is a person who has been displaced due to the Hipparagi Dam Project and he was entitled for reservation or priority with regard to the recruitment under the notification dated 03.11.2016. Though the last date for filing the application was 02.12.2016, it is only in the year 2019, the petitioner was called upon to appear before respondent No.2 for the purpose of verification of the original documents and pursuant to the said communication, the petitioner appeared before respondent No.2 along with all original documents including the project displaced person certificate. However, respondent No.2 had refused to consider the same on the ground that the same was not produced along with the application and since the last date for filing the application was over.
7. It is not in dispute that the final list of selected candidate has not yet been published by respondent No.2. The Hon'ble Supreme Court in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and Another reported in
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NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 (2016)4 SCC 754, in a case where a candidate, who appeared for examination under a specific category and submitted the certificate after the last date mentioned in the advertisement, has held that the authorities were required to consider such certificate. The Hon'ble Supreme Court in paragraphs 16 & 18 has observed as follows:
" 16. In Pushpa (2009 SCC OnLine Del 281), relevant paragraphs from the case of Tej Pal Singh (1999 SCC OnLine Del 1092) have also been extracted, which read thus: (Pushpa case, SCC OnLIne Del para 11) "11. ......15.The matter can be looked into from another angle also. As per the advertisement dated 11-6-1999 issued by the Board, vacancies are reserved for various categories including 'SC' category. Thus in order to be considered for the post reserved for 'SC' category, the requirement is that a person should belong to 'SC' category. If a person is SC he is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to 'SC' category and act thereon by giving the benefit to such candidate for his belonging to 'SC' category. It is not that
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NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 petitioners did not belong to 'SC' category prior to 30-6-1998 or that acquired the status of being 'SC' only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30-6-1998 would be clearly arbitrary and it has no rationale objective sought to be achieved.
16. While taking a particular view in such matters one has to keep in mind the objectives behind the post of SC and ST categories as per constitutional mandate prescribed in Articles 15(4) and 16(4) which are enabling provisions authorising the Government to make special provisions for the persons of SC and ST categories. Articles 14(4) and 16(4), therefore, intend to remove social and economic inequality to make equal opportunities available in reality. Social and economic justice is a right enshrined for protection of society. The right in social and economic justice envisaged in the Preamble and elongated in the Fundamental Rights and Directive Principles of the Constitution, in particular Articles 14, 15, 16, 21, 38, 39 and 46 are to make the quality of the life of the poor, disadvantaged and disabled citizens of the society meaningful." (Tej Pal singh case, SCC OnLIne Del paras 15-16)
18. In our considered view, the decision rendered in Pushpa (2009 SCC OnLine Del 281) is in conformity with the position of law laid down by this
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NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in Indra Sawhney and Valsamma Paul wherein this Court after interpretation of Articles 14,15,16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SCs/STs and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned single Judge. Hence, the impugned judgment and order passed by the Division Bench in the Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in Indra Sawhney and Valsamma Paul (supra). Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment
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NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 and order dated 24.11.2010 passed by the learned single Judge in Ram Kumar Gijroya vs. Govt. (NCT of Delhi) is hereby restored."
8. Even in the present case, it is not the case of respondent No.2 that the petitioner does not belong to the category of project displaced person. The only ground made out by respondent No.2 is that the certificate under the said category was not produced before the last date of filing the application. The Hon'ble Supreme Court in Ram Kumar Gijroya's case (supra) has observed that, non-consideration of such a certificate merely for the reason that the same is filed after the last date of filing the application would defy the rationale objective sought to be achieved. Respondent No.2, while deciding to give reservation and priority to the project displaced person, had called upon the eligible candidates to file their applications and merely for the reason that the petitioner who, otherwise, is eligible had not filed the certificate before the last date to file the application, refusing to consider the same even before the final list of candidates is published would be arbitrary, and on the other hand, if the same is considered by the respondent, no hardship or injury would be caused to anybody.
9. Though the learned counsel for respondent No.2 submitted that in the event of petitioner's prayer to consider the certificate is considered by them, it is
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NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 likely to open the Pandora's Box, he has not pointed out to this Court that any other applicant, who has submitted his application pursuant to the notification dated 03.11.2016, has made similar request to the respondent. It is also not the case of respondent No.2 that any other applicant has produced such a certificate at the stage of verification of the original documents. Under the circumstances, it is a fit case where interference of this Court is called for to consider the case of the petitioner for granting him the relief sought for in this writ petition.
Accordingly, the writ petition is allowed. Respondent No.2 is directed to consider the request of the petitioner to consider the certificate bearing No.AGRCR/799/16-17 dated 21.11.2016 issued by the Tahasildar, Raibag, vide Annexure-C in support of his candidature of the post of Art & Drawing Teacher pursuant to the notification bearing No.PSC.1.R.T(4)B- 3/2016 dated 03.11.2016 and thereafter proceed in accordance with law for the purpose of finalizing the selection list of the candidates to the post of Art & Drawing Teacher."
5. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, we are of the considered opinion that the impugned order passed by the learned Single Judge does not suffer from any illegality
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NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 or infirmity nor can the same be said to be perverse or capricious warranting interference by this Court in the present appeal.
6. Insofar as the application IA No.1/2021 filed by the appellant for additional documents dated 8.11.2021 is concerned, a perusal of the said documents will indicate that the same are neither relevant nor material for the purpose of adjudication of the issue in controversy involved in the present appeal which relates to the question as to whether the request of respondent No.1 to consider his application can be rejected on the sole ground that he had not claimed reservation under the project displaced persons category despite having certificate in this regard. As stated earlier, we have already come to the conclusion that the learned Single Judge was fully justified in holding that non-mentioning/non-claiming of reservation under the category of Project Displaced Persons by the petitioner in his application would not come in the way of him claiming the benefit of reservation
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NC: 2023:KHC-D:10659-DB WA No. 100256 of 2021 particularly, when he undisputedly belongs to the said category and had obtained certificate on 21.11.2016 prior to submitting his application on 28.11.2016 and the omission on his part in filling up the application was due to oversight and inadvertence. Under these circumstances, we do not find any merit in IA No.1/2021 which accordingly, is dismissed.
7. For the foregoing reasons, we do not find any merit in the appeal and same is hereby dismissed.
Sd JUDGE Sd JUDGE JTR List No.: 1 Sl No.: 10