Karnataka High Court
The State Of Karnataka vs Sri Hidayathulla K A on 22 April, 2022
Bench: G.Narendar, M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR.JUSTICE G.NARENDAR
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
WRIT PETITION NO.14084 OF 2020(S-KSAT)
C/W
WRIT PETITION No. 795 OF 2021,
WRIT PETITION No. 10411 OF 2021
WRIT PETITION No. 16349 OF 2021
IN WRIT PETITION NO.14084/2020
BETWEEN:
HIDAYATHULLA K. A.
S/O LATE ABDULLA
AGED ABOUT 42 YEARS,
WORKING AS DEPUTY SECRETARY
KARNATAKA GOVERNMENT SECRETARIAT
ROOM NO.340
VIKASA SOUDHA
DR.B.R. AMBEDKAR ROAD
BENGALURU-560 001.
....PETITIONER
(BY SRI. PROF. RAVIVARMA KUMAR, SR.ADVOCATE FOR
SRI. CHIDANANDA KUMAR M.)
AND:
1. STATE OF KARNATAKA
REP. BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
2
DR B.R. AMBEDKAR ROAD
BENGALURU-560 001.
2. STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPT. OF PERSONNEL AND
ADMINISTRATIVE REFORMS
II FLOOR
VIDHANA SOUDHA
DR.B.R. AMBEDKAR ROAD
BENGALURU-560 001.
3. THE COMMISSIONER FOR
PERSONS WITH DISABILITIES
IN KARNATAKA
NO.55 IIND FLOOR
ABHAYA SANKURNA
RESALDAR STREET
KARNATAKA SLUM DEVELOPMENT
BOARD BUILDING
BENGALURU-560 020.
4. KARNATAKA PUBLIC SERVICES COMMISSION
REP. BY ITS SECRETARY
UDYOGA SOUDHA
BENGALURU-560 001.
....RESPONDENTS
(BY SRI. ARUNA SHYAM AAG
A/W SMT. SHILPA S. GOGI, HCGP FOR R1 TO R3;
SRI. A.G. GURURAJ, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR RECORDS PERTAINING TO THE CASE OF THE
PETITIONER IN APPL NO.2139/2010 FROM THE FILE OF
THE HONBLE KSAT BENGALURU BENCH BENGALURU
QUASH THE IMPUGNED ORDER DATED:03.09.2020 MADE
IN APPELLANT.NO.2139/2010 PRODUCED AT ANNEXURE -F
3
AS THE SAME IS ERRONEOUS AND OPPOSED TO LAW AND
ALSO OPPOSED TO THE ART 14 OF THE CONSTITUTION.
IN WRIT PETITION NO.795 OF 2021
BETWEEN:
THE STATE OF KARNATAKA
REP. BY PRINCIPAL SECRETARY
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS
VIDHANA SOUDHA
BENGALURU 560001.
KARNATAKA.
....PETITIONER
(BY SRI.ARUN SHYAM, AAG
A/W SMT. SHILPA S. GOGI, HCGP)
AND:
1. HIDAYULIYUTHULLA K.A.
S/O. ABDULLA
WORKING AS DEPUTY SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
ROOM NO. 340
VIKASA SOUDHA
BENGALURU
2. UNION OF INDIA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF PERSONNEL TRAINING
MINISTRY OF PERSONNEL
PUBLIC GRIEVANCES
AND PENSIONS, NORTH BLOCK
NEW DELHI - 110 001.
3. UNION PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY
DHOLPUR HOUSE
4
SHAHJAHAN ROAD
NEW DELHI - 110 001.
....RESPONDENTS
(BY SMT. IRFANA NAZEER, ADVOCATE FOR R1;
SRI. B. PRAMOD, ADVOCATE FOR R2;
CGA FOR R3 V/O DATED:08.02.2022)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED:17.07.2019 PASSED IN O.A.
NO.170/00410 OF 2019 PASSED BY THE HONBLE CENTRAL
ADMINISTRATIVE TRIBUNAL PRODUCED AT ANNEXURE - A
GRANT AND INTERIM ORDER TO STAY THE OPERATION
AND EXECUTION OF THE ORDER PASSED BY THE HONBLE
CENTRAL ADMINISTRATIVE TRIBUNAL IN O.A.
NO.170/00410 OF 2019, DATED:17.07.2019 VIDE
ANNEXURE -A.
IN WRIT PETITION NO.10411 OF 2021
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY ITS PRICNIPAL SECRETARY
DPAR, VIDHANA SOUDHA
BENGALURU-560001.
....PETITIONER
(BY SRI.ARUN SHYAM, AAG
A/W SMT. SHILPA S. GOGI, HCGP)
AND:
1 . SRI HIDAYATHULLA K.A.
S/O. K.A.ABDULLA
AGED ABOUT 34 YEARS
WORKING AS SECTION OFFICER
MINORITY WELFARE DEPARTEMNT
ROOM NO.215, VIKASA SOUDHA
BENGALURU 560001.
5
AND RESIDING AT ROOM NO.126
KRISHNA BLOCK, NGV
KORAMANGALA
BENGALURU 560047.
2 . SRI MANJUNATH BELLARY
AGED ABOUT 34 YEARS
NOW WORKING AS TAHSILDAR
YELLAPURA TALUK
UTTARA KANNADA DISTRICT - 581 359
3 . SRI PRASANNA KUMAR G.S.
AGED ABOUT 42 YEARS
WORKING AS TAHSILDAR
PAVAGADA TALUK
TUMAKURU DISTRICT 572101.
....RESPONDENTS
(BY SRI. A.S. PONANNA FOR
SRI. BAYYA REDDY N., ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A)
CALL FOR THE RECORDS B) ISSUE WRIT OF CERTIORARI
OR ANY OTHER APPROPRIATE WRIT, ORDER OF DIRECTION
TO QUASH THE ORDER DATED:12.02.2021 IN
APPLICATION NO.2224/2012 (ANNEXURE -A) PASSED BY
THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL C)
CONSEQUENTLY DISMISS THE APPLICATION NO.2224/2021
FILED BY THE RESPONDENT BEFORE THE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL BENGALURU AND ETC.
IN WRIT PETITION NO.16349 OF 2021
BETWEEN:
1 . SRI H.R. PUTTEGOWDA
S/O RANGE GOWDA
AGED ABOUT 47 YEARS
6
WORKING AS ADDITIONAL
SECRETASRY TO THE GOVERNMENT
CO-OPERATION DEPARTMENT
M.S. BUILIDNG
BENGALURU 560001.
2 . APARNA ADIVEPPA PAVATE
D/O ADIVEPPA S. PAVATE
AGED ABOUT 46 YEARS
WORKING AS ADDITIONL SECRETARY
TO THE GOVERNMENT
ENERGY DEPARTMENT
VIKASA SOUDHA
BENGALURU 560001.
3 . DR G.S. MANGALA
W/O J.D. MADHUCHANDRA TEJASWI
AGED ABOUT 42 YEARS
WORKING AS ADDITIONL
SECRETARY TO THE
GOVERNMENT, FINANCE DEPARTMENT
VIDHANA SOUDHA
BENGALURU 560001
4. SRI. J.D. MADHUCHANDRA TEJASWI
S/O G.S. DEVAPPA GOWDA
AGED ABOUT 47 YEARS
WORKING AS ADDITIONAL
SECRETARY TO THE
GOVERNMENT, DPAR
VIDHANA SOUDHA
BENGALURU - 560 001.
5 . SRI CHANDRASHEKAR
S/O M. GANGANNA
AGED ABOUT 42 YEARS
WORKING AS JOINT SECRETARY
TO GOVERNMENT
WAITING FOR POSTING
7
6 . K. CHIRANJEEVI
S/O S. KONDAIAH
AGED ABOUT 48 YEARS
WORING AS JOINT SECRETARY TO
GOVERNMENT, HEALTH AND FAMILY
WELFARE DEPARTMENT
VIKASA SOUDHA
BENGLAURU 560 001.
7. DR. L. GEETHA
W/O RAMESH R.N.
AGED ABOUT 43 YEARS
WORKING AS JOINT SECRETARY TO
GOVERNMENT, HOME DEPARTMENT
VIDHANA SOUDHA
BENGALURU - 560 001.
....PETITIONERS
(BY SRI.SRIRANGA S., ADVOCATE FOR P1 TO P5 & P7
SMT. AKKAMAHADEVI HIREMATH , FOR P6)
AND:
1. SRI HIDAYATHULLA K.A.
WORKING AS JOINT SECRETARY TO GOVT
KARNATAKA GOVT SECRETARIAT
VIDHANA SOUDHA
BENGALURU -560001.
2. THE STATE OF KARNATAKAS
REP BY ITS PRINCIPAL
SECRETARY DPAR
VIDHANA SOUDHA
BENGALURU 560001.
3. SRI MANJUNATH BELLARY
AGED ABOUT 43 YEARS
WORKING AS PERSONAL SECRETARY
8
TO HON'BLE MINISTER FOR LABOUR
VIKASA SOUDHA
BENGLAURU 560001.
4. SRI. PRASANNA KUMAR G.S.,
AGED ABOUT 51 YEARS
WORKING AS JOINT
SECRETARY TO GOVERNMENT, DPAR
VIDHANA SOUDHA
BENGALURU 560001.
....RESPONDENTS
(BY SRI. A.S. PONANNA FOR
SRI. BAYYA REDDY N, ADOVCATE FOR R1
SRI. ARUNA SHYAM, AAG
A/W SMT. SHILPA S. GOGI, HCGP FOR R2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE ENTIRE RECORDS PERTAINING TO THE
IMPUGNED ORDER DATED :12.02.2021 PASSED BY THE
HONBLE KARNATAKA ADMINISTRATIVE TRIBUNAL IN
APPLICATION NO.2224/2012 (ANNEXURE-K) AND ETC.
THESE PETITIONS BEING HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, M.G.S.KAMAL J, MADE THE FOLLOWING:
9
ORDER
All these writ petitions involve common facts and parties and hence, heard analogously and taken for common disposal.
2. Facts leading upto filing of these writ petitions briefly stated are;
IN W.P.NO.14084/2020:
(a) The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (hereinafter referred to the 'Act', 1995) was promulgated with effect from 07.02.1996 with an object of giving effect to the proclamation on the Full Participation And Equality of People With Disabilities in the Asian and Pacific Region to which the India is a signatory.
(b) On 15.12.1999, The Karnataka Public Service Commission issued a notification for 10 recruitment of Gazetted Probationers to the post of Group A and B in the State Services. The said notification did not provide for reservation for the physically disabled person.
(c) In response to the aforesaid recruitment notification, Petitioner namely, Sri.Hidayathulla. K.A being a physically disabled person applied to a post in Group-A and B in the State Civil Services. In the combined competitive examination which was held, the Petitioner was successful and was called for interview. The Respondent-State Government had again issued recruitment notification for the Gazette probationers selection during the year 2005. Yet again, there was no provision of reservation made for the physically disabled persons.
(d) Since, the aforesaid recruitment notifications did not provide for reservation for the physically 11 disabled person in accordance with the provisions of Act, 1995, Petitioner approached the Tribunal by filing an application No.6276/2005 seeking implementation of the provisions of the Act, 1995. Some of the persons who were similarly situated with that of the petitioner and who had appeared in the examination pertaining to 2005 Gazette Probationers selection namely, Sri.Vishwanath.P.Hiremath in application No.3428/2005, Sri.Indiresh R in application Nos.7093-95/2005 and Sri. Shankara Gowda Doddamani in application No.8724/2005 also approached the Tribunal.
(e) The Tribunal by its detailed common Order dated 14.07.2006 allowed the aforesaid applications with a series of directions, directing the Respondent-State to fully comply with the provisions of the Act, 1995.
12
(f) Being aggrieved by the aforesaid Order dated 14.07.2006, Respondents-State preferred a writ petition in W.P.No.13511/2006 before this Court. This Court had declined to grant any interim order of stay and had directed the Respondent-State to implement the Order by creating a Supernumerary post and subject to result of the writ petition. Contempt proceedings were also initiated against the Respondent-State for non-compliance of the order of the Tribunal. The Respondent-State had accordingly passed an order creating five Supernumerary post and the petitioner and the aforesaid applicants were appointed pursuant to the said order by notification dated 19.03.2009 to the post of Section Officer, a Group-B post. In view of the appointment of the petitioner and the said applicants in the supernumerary post and they having completed three years six months of their 13 service and their probationary period having been declared as satisfactory, the writ petition was dismissed as it did not survive for consideration by Order dated 31.07.2008.
(g) That after filing of the aforesaid application before the Tribunal the second Respondent had made amendment to Rule 9(1A) of the Karnataka Civil Services (General Recruitment) Rules, 1997, and issued notification dated 13.09.2005 by providing 3% horizontal reservation in Group-A and B effective from 13.09.2005 to the persons suffering from (i) blindness, (ii) hearing impairment (iii) loco-moto disability and (iv) Celebral palsy and mental illness.
(h) The petitioner aggrieved by the aforesaid Amendment by the Respondent-State effective from 13.09.2005 approached the Tribunal by filing an Application No.2139/2010 seeking 14 various reliefs in the nature of direction to the Respondent-State to appoint the petitioner to the post of Assistant Commissioner, Group-A (Junior Scale) by making proper arrangements in accordance with the provisions of Act, 1995, and for consequential reliefs, on the premise that if 3% reservation had been provided in 1999 Gazette Probationary recruitment notification, the petitioner would have been selected to Group-A post i.e. to the post of Assistant Commissioner, and that non-implementation of the provisions of the Act, 1995 which came into effect from 07.02.1996 and the Respondent-State Government not having provided the reservation accordingly, the petitioner was denied of opportunity and of his statutory rights.
(i) Similarly, aforesaid Sri.Vishwanath P. Hiremath and Sri.Shankar Doddamani, who were the candidates in the recruitment notification of 15 the year 2005 had filed Application Nos.2124/2010 and 3605/2010 respectively, seeking similar reliefs on identical grounds. The Tribunal by its order dated 15.12.2017 allowed the said application Nos.2124/2010 and 3605/2010 directing the Respondent-State to issue modified notification dated 19.03.2009 by appointing the applicants in Group-A, KAS (Junior Scale) as directed by the Tribunal by its earlier Order dated 14.07.2006 in Application No.3428/2005 and connected matters within four months from the date of the receipt of the order.
(j) However, the Tribunal by its Order dated 03.09.2020 passed in Application No. 2139/2010 filed by the petitioner for similar relief as that of in the aforesaid application Nos.2124/2010 and 3605/2010 dismissed the same for the reasons of same having been barred by "res- judicata" and also for the reasons of the petitioner having 16 "acquiesced" by accepting his appointment to Group-B post pursuant to its earlier Order dated 14.07.2006, and was thus "estopped" from seeking any further reliefs. As regards question of parity, the Tribunal declined the plea of the petitioner on the premise that each and every employee shall not approach the Court to seek relief already granted to a co-employee or Officer. However, it reserved the liberty to the petitioner to submit his representation for consideration of the Respondent-State. The petitioner being aggrieved by the dismissal of his application in Application No.2139/2010 by the Tribunal is before this Court in W.P.14084/2020.
IN W.P.NO.795/2021:
(k) The petitioner in the meanwhile had filed an application before the Central Administrative Tribunal, Bengaluru in O.A.No.170/00410/2019 17 on the similar grounds as that of the application filed before the Tribunal in Application No.2139/2010. The Central Administrative Tribunal, by its Order dated 17.07.2019, taking note of the earlier orders of the Tribunal on the subject matter, allowed the said application of the Petitioner declaring that the appointment of the Petitioner from the earliest point of time available in 1999 and directing the respondent-
State herein to notionally take the appointment of the petitioner effective from 1999 and to provide position in seniority list all with notional benefits. Aggrieved by the aforesaid Order dated 17.07.2019 passed by Central Administrative Tribunal, the State Government is before this Court in W.P.No.795/2021.
IN W.P.NO.10411/2021 & W.P.NO.16349/2021:
(l) The Petitioner herein had also filed another application in Application No.2224/2012 before 18 the Tribunal seeking relief of considering his seniority from the period from 01.01.2007 to 31.12.2010 and to assign him the higher cadre, by considering him to have been appointed in the 1999 batch and to assign him the seniority by placing him above the candidate of the 1999 batch placing him between Sl.No.119 and 120 of the Final Seniority List dated 01.01.2011 as per Annexure-A7 to the said application. The Tribunal by its order dated 12.02.2021 allowed the said application of the petitioner directing the Respondent-State to show the name of the petitioner between Sl.No.119 and 120 at 119A in the seniority list of Section Officers as on 01.01.2011 within three months from the date of receipt of the said order.
Aggrieved by the aforesaid order the Respondent- State Government filed writ petition in W.P.No.10411/2021 and one H.R.Puttegowda and six 19 others who were appointed to the post of Gazetted Probationers of the year 2005 batch had filed writ petition in W.P.No.16349/2021.
3. The State Government has filed statement of objections and additional Statement of Objections to the writ petition in W.P.No.14084/2020 and rejoinder and additional rejoinder to the same have been filed by the Petitioner.
4. Sri. Ravivarma Kumar, learned Senior counsel appearing for Sri. Chidananda Kumar, counsel for the petitioner- K.A. Hidayathulla in W.P.No.14084/2020, Sri. A.S. Ponnanna, learned Senior counsel appearing for Sri. Bayyareddy N., learned counsel appearing for the respondent No.1- K.A. Hidayathulla in W.P.No.10411/2021 and W.P.No.16349/2021 and Smt. Irfana Nazeer, learned counsel appearing for respondent No.1 - K.A. Hidayathulla, in W.P.No.795/2021, reiterate the contents of the 20 applications before the Tribunal, the grounds urged in the writ petitions and the re-joinders submitted;
a) that the order of the Tribunal rejecting the application of the petitioner on the grounds of res-judicata and estoppel suffers from patent illegality and is thus unsustainable, inasmuch as, the similarly situated applicants in application Nos.2124/2010 and 3605/2010, namely, Sri. Viswanath P. Hiremath and Sri. Shankargouda C. Doddamani, the candidates from 2005 batch, being juniors to the petitioner, were granted reliefs in the nature of a direction to the respondent-State to modify the notification dated 19.03.2009 by appointing them to the posts of Group -A, KAS (Junior Scale). Said order was passed by the Tribunal solely relying upon its earlier order dated 14.07.2006 passed in application Nos. 3428/2005 and connected 21 matters, in which the petitioner was also one of the applicants.
(b) that the Tribunal by its order dated 14.07.2006 passed in the application No.3428/2005 and connected matters had directed the Respondent-State to create supernumerary post and fully comply with the provision of Act, 1995. The Respondent-State had however, misinterpreted the said order and had given Group- B post to the petitioner though the petitioner had preferred KAS Group -A (Junior scale) in his application as his first preference. The appointment of the petitioner was subject to the out come of Writ Petition No.13511/2006 which was filed by the respondent-State Government against the order of the Tribunal. The said appointment was accepted by the petitioner under the said circumstances though the Government had not identified the post in 22 Group -A in compliance with the order of the Tribunal giving full effect to the provisions of the Act, 1995. It was this subsequent inaction of the Government which was under challenge before the Tribunal in the application No.2139/2010 filed by the petitioner.
(c) The said application though was filed in 2009 much prior to the applications filed by the said Viswanath P. Hiremath, it was numbered in the year 2010 making it appear to have been filed subsequent to the applications of said Viswanath P. Hiremath, which the Tribunal has taken into consideration to deny relief on the grounds of parity by holding that the petitioner had not approached the Tribunal at the earliest point in time.
(d) Learned Senior counsel drawing the attention of this Court to the note sheet prepared by the Government as per Annexure-K4 to the 23 rejoinder, wherein, at paragraph 22, the Government has opined that as per the roster points, 19th vacancy/point is required to be offered to a candidate from 1999 batch of Gazetted Probationer, as such, the only candidate from the 1999 batch among the physically disabled category was the petitioner and none other. It is further submitted that the Government is therefore, bound to offer the post of Group- A (Junior scale) to the petitioner on priority basis before offering the same to the candidates of 2005 batch.
(e) That the Respondent-State Government ought to have identified the posts in 1999 Notification in terms of Sections 32 and 33 of the Act, 1995, and should have carried forward unfilled vacancy in terms of Section 36 of the Act, 1995, if suitable persons were not available. Hence, seeks for allowing of the writ petitions. 24
5. Sri. Arun Shyam, learned Additional Advocate General appearing along with Smt. Shilpa S. Gogi, learned HCGP for State as Respondent in W.P.No.14084/2020 and State as Petitioner in W.P.No.795/2021 and in W.P.No.10411/2021 submitted;
(a) that the petitioner and the similarly placed persons were given appointment as against the supernumerary posts created pursuant to the order dated 14.07.2006 passed by the Tribunal in application No.3428/2005 and connected matters. The petitioner having accepted the said posting to the post of Section Officer as his preference and the same having been notified by notification dated 19.03.2009 and having been promoted periodically cannot be permitted to re-agitate his case on the premise of non compliance of Section 33 of the Act, 1995. 25
(b) The State Government in compliance with Section 33 of the Act, 1995 had amended Rule 9 (1A) of the Karnataka Civil Services (General Recruitment) Rules, 1977 vide Notification dated 03.09.2005 providing 3% horizontal reservation for physically handicapped persons in direct recruitment to the Group -A and Group -B posts as are identified and notified by the Government. In compliance to Section 32 of the Act 1995 Government by Notification dated 30.09.2005 identified the post in Group- A and Group- B to provide reservation to the physically handicapped persons. Therefore, question of carry forward of unfilled vacancies for a period prior to 2005 does not arise.
(c) That the petitioner having filed application in Application No.2139/2010, has simultaneously approached the Central
Administrative Tribunal primarily by filing an 26 application No.170/00410/2019 on the similar grounds that he was deprived of the benefit of the Promotion to the highest cadre, as such, the Central Administrative Tribunal did not have jurisdiction to entertain the said application.
(d) That the petitioner Sri. K.A.Hidayathulla who was one of the candidates for the 1999 selection had claimed reservation under Category-II(B) and had failed to furnish the Certificate at the time of personality test and was thus, declared as ineligible candidate by the KPSC. His selection and appointment to the post of Section Officer was pursuant to the order of the Tribunal and as per his preference, the petitioner not having challenged the said notification of his appointment cannot therefore, seek any benefit at a belated stage.
(e) Drawing attention to the endorsement dated 11.08.2020 issued by the Under Secretary 27 as per Annexure-R5, he submitted, as per the order dated 14.07.2006 passed in application No.3428/2005 and connected matters and also the order dated 15.12.2017 passed in application No.2124/2010 connected with application No.3605/2010, the Government had examined and reviewed the position by providing 3% horizontal reservation for physically handicapped persons in 1998, 1999 and 2004 batch. Even if all three batches are considered, out of 60 KAS (Junior scale) posts, (20 posts of each year) only one roster seat is reserved for disabled candidates and that said single post has been given to Sri. Viswanath P. Hiremath pursuant to the Order dated 15.12.2017 passed in Application No.2124/2010 as he is the one, who had approached the Tribunal at the first instance and petitioner cannot be treated on par therefor. 28
Hence, he seeks for dismissal of the writ petition No. 14084/2020 and allowing of the W.P. No.795/2021 and W.P.No.10411/2021.
6. Sri. Sriranga, learned Senior counsel appearing for petitioner Nos. 1 to 5 and 7 in W.P.No.16349/2021 and Smt. Akkamahadevi Hiremath, learned counsel appearing for petitioner No.6, reiterating the grounds urged in the writ petition submitted that the order dated 12.02.2021 passed on the application No.2224/2012 by the Tribunal, placing the respondent No.1 (Sri. K.A. Hidayathulla) above Serial No.120 in the Seniority List of the 2005 batch considering his appointment along with 1999 batch, is in flagrant violation of principles of natural justice as the same have been passed without arraying the petitioners as parties. He submits that it is settled law that inter-se seniority cannot be passed without arraying those who loose seniority, as parties. That the post of Section Officer was not even notified in 29 1999 recruitment to Gazetted Probationers. As such, if the respondent No.1 was to be appointed to the 1999 batch, his appointment ought to have been in the posts notified by 1999 Notification which did not contain the post of Section Officer. The respondent No.1 had been appointed by way of a judicial order as against the Petitioners who have been appointed on successful completion in the recruitment process. The petitioners were appointed in 2006 whereas, the respondent No.1 has been appointed in 2009 as such, the impugned order, granting him seniority over the petitioners is unsustainable.
7. Heard learned counsel for the parties. Perused the records.
8. The present stalemate is created by the respondent-State Government, firstly, by not giving effect to the mandatory provisions of Sections 32, 33 and 36 of the Act, 1995 requiring identification and 30 reservation of posts for persons with disability, and secondly, by not implementing the Order dated 14.07.2006 passed by the Tribunal in application No.3428/2005 and connected with application No.6276/2005, 7093-95 of 2005 and 8724/2005, by which, while allowing the applications, the Tribunal had issued series of directions directing the respondent- State Government to fully comply with the provisions of the Act, 1995 by providing reservation to physically handicapped persons and to undertake exercise under Section 32 of the Act, 1995 by identifying the posts which can be reserved for the persons with disability. The Tribunal has further directed the Government that after completing the aforesaid exercise, to revise the existing Final Select List published on 29.11.2005, insofar as it relates to Selection and Recruitment of Gazetted Probationers Examination 1999, and Final Select List published on 04.04.2006 insofar as it relates to Selection and Recruitment of Gazetted 31 Probationers Examinations of 2005 undertaken by KPSC. The Tribunal has further emphasized with regard to the care to be taken to ensure the posts identified by the Notification dated 13.09.2005 are made available to accommodate the applicants before the Tribunal who are physically handicapped and fulfill the statutory obligation though belatedly.
9. The State Government had unsuccessfully challenged the said Order in W.P.No.13511/2006, which ended in dismissal by order dated 31.07.2008 thereby confirming the aforesaid directions of the Tribunal.
10. The State Government pursuant to the aforesaid directions and in the light of the contempt proceedings initiated by the petitioners and the co- applicants had issued Notification dated 19.07.2009 appointing the petitioners and four others to Group-B Posts as Section Officers, that is, by creating 32 supernumerary post. A perusal of the said notification at Annexure-A13 would indicate that the Government has read the aforesaid order of the Tribunal to be the directions to appoint six physically handicapped candidates in Group-B posts and accordingly, proceeded to appoint the petitioner and four others by creating supernumerary posts as above. There is no such direction by the Tribunal as seen in the Order dated 14.07.2006.
11. All that the respondent-State Government was required to do, was to give effect to the aforesaid directions of the Tribunal in letter and spirit, particularly, after having challenged the same unsuccessfully in the above writ petition No.13511/2006. Not having done so and having appointed the petitioner and co-applicants to the posts of Section Officers in Group-B supernumerary posts as per the Notification dated 19.7.2009, the respondent- Government cannot claim to have "Fully complied" with 33 the directions of the Tribunal. As rightly contended by the learned counsel for the petitioner, the second round of challenge by the petitioner by filing the application No.2139/2010 was in respect of this failure on the part of the respondents-Government in fully complying with the order of the Tribunal and fully complying with the provisions of the Act, 1995. Thus, the cause of action and the reliefs sought for by the petitioner in application No.6276/2005 and application No.2139/2010 are distinct and separate.
12. Like the petitioner, the aforesaid Sri. Vishwanath P. Hiremath and Sri. Shankargoud C. Doddamani being the candidates of the Recruitment Notification of the year 2004-2005 had approached the Tribunal earlier by filing Application Nos.3428/2005 and 8724/2005 and thereafter again filed application Nos. 2124/2010 and 3605/2010 respectively. The said applications have been allowed by the Tribunal accepting the contentions raised similar to that of the 34 petitioner herein and specifically, observing that the respondent-Government, has ignored the directions of the Tribunal while appointing the applicants in the Group-B posts.
13. Ironically, the Tribunal while dealing with the application No.2139/2010 filed by the petitioner has gone on tangent by holding that the case of the petitioner is barred under principles of "res judicata", suffers from "acquiescence and estoppel". Besides, resorting to Order 2 Rule 2 of CPC to hold that the Petitioner not having sought substantial relief in earlier Application No.6276/2005, is deemed to have relinquished his claim, thereby negating the relief to the Petitioner. The Tribunal has ignored its own reasoning given in its order dated 15.12.2017 while allowing the aforesaid applications No. 2124 and 3605 of 2010. The Tribunal also declined to treat the petitioner on par with the said applicants, allegedly for the reason of the applicant not having approached the 35 Tribunal in time and also for the reason of applicant already having approached the Central Administrative Tribunal, which according to the opinion of the Tribunal was an improper conduct on the part of the petitioner. This approach and reasoning of the Tribunal in rejecting the application of the petitioner is not merely perverse but wholly unsustainable.
14. As pointed out by the learned Senior counsel appearing for the petitioner and as seen in the order sheet produced along with the memo dated 26.03.2022, the application was filed by the petitioner originally on 14.07.2006, which was numbered in the year 2010. By order dated 26.04.2017, the application of the petitioner was assigned to Court Hall-2 for disposal in view of the connected matters in application Nos. 2124/2010 and 3605/2010. However, the Tribunal has proceeded to pass orders dated 15.12.2017 allowing the said applications Nos. 2124/2010 and 3605/2010. Thereafter, by a separate 36 order dated 03.09.2020 proceeded to dismiss the application No.2139/2010 filed by the petitioner herein. It is also pertinent to note that no reasons are forthcoming for de-linking the petitioner's application.
15. Further, perusal of the statement of objections and additional statement of objections filed by the respondent-State Government reveal that State has taken up an adversarial stance in the case of the petitioner and despite having failed to comply with Tribunal's directions, which attained finality at the hands of this Court. In that, apart from justifying its action of not giving effect to the direction of the Tribunal contained in its order dated 14.07.2006 has also pleaded the impossibility and impracticality of the implementation of the said directions. In other words, the respondent-State Government has disputed the very viability and practicality of the order dated 14.07.2006 of the Tribunal. In other words, the State has attemptede to re-open issues already determined 37 by the Tribunal and subsequently upheld by this Court. This approach of the respondents-State Government cannot be countenanced, more particularly, when the challenge to the said order made by the respondents- State Government by filing the writ petition No.13511/2006 on similar contention having resulted in its dismissal by order dated 31.07.2008. Thus, the dispute/contention of the respondent-State Government to the case of the petitioner and justifying the order of the Tribunal is unacceptable.
16. The contention of the learned Additional Advocate General referring to the endorsement dated 11.8.2020, Annexure- R5 to the effect that, subsequent to Orders of the Tribunal dated 14.07.2006 and 15.12.2017, the State Government provided 3% horizontal reservation for physically handicapped persons in 1998, 1999 and 2004 batch and even if all three batches are considered, out of 60 KAS (Junior Scale) posts at the count of 20 posts for each batch, 38 only one roaster seat is reserved for the disabled candidate and which has been rightly given to Sri.Vishwanath P.Hiremath- the applicant in Application No.2124/2010 and since, the petitioner had not approached the Tribunal within reasonable time , he was not entitled for the said post. This contention also cannot be accepted for more than one reason. Firstly, admittedly, the petitioner herein belongs to 1999 batch of Gazetted probationers notification recruitment, while, the applicant Sri. Vishwanath P. Hiremath belongs to 2005 batch. The order dated 14.07.2006 passed by the Tribunal was in clear and categoric terms of implementing the provisions of Act, 1995, with due care to the Final Seniority Lists prepared with reference to 1999 batch and 2005 batch. Therefore, the reservation which was to be given effect to the notification of the year 1999, obligated the respondent-State Government to have identified the post in Group-A and B category and petitioner being 39 the first and only disabled and suitable candidate of 1999 batch ought to have been appointed to the said post. Secondly, the Respondent-State having failed in justifying its inaction of bringing into effect of the Act, 1995 cannot be allowed to contend that it is not possible to accommodate the petitioner, for no posts were reserved for the disabled candidate for the recruitment of the year 1999. It is necessary to notice that this contention amongst other by the Respondent- State has been negated in the earlier proceedings, which in other words, would amount to allowing the respondent-State to re-agitate its cause and challenge to the order dated 14.07.2006 which is impermissible as the same having attained finality by dismissal of the Writ Petition No.13511/2006 vide order dated 13.07.2008.
17. As regards the Order dated 17.07.2019 of the Central Administrative Tribunal passed in O.A.No.170/00410/2019, and the writ petition filed by 40 the State Government in W.P.No.795/2021 questioning the said order, primarily on the ground of the Central Administrative Tribunal not having jurisdiction to entertain the said application of the petitioner, it can be said that the said challenge of the State Government would not advance its cause inasmuch as the Order passed by the Central Administrative Tribunal at the instance of the petitioner, directing the State Government to consider him to have been appointed to the post of Assistant Commissioner, Group-A (Junior Scale), notionally effective from 1999 with all consequential benefit thereof, is merely a reiteration of the factual and legal aspects, particularly, in the light of the Order dated 14.07.2006 passed by the Tribunal in application No.3428/2005 and connected matters and said Order of the Central Administrative Tribunal has to be read as such.
18. The position of law providing reservation in the appointments to the Group-A, B, C and D posts in 41 terms of Sections 32 and 33 by identifying the posts thereof has been dealt with and settled by the Apex Court in the case of Union of India and others vs. National Federation of the Blind and others reported 2013 (10) SCC 772, which has been subsequently reiterated and affirmed in the case of Union of India and others vs. National Confederation for Development of disabled and another reported in 2015 (13) SCC 643 and in the case of Ashok Kumar Giri vs. Union of India and others reported in 2016 (6) SCC 511. In that view of the matter, it is not available to Respondent-State to seek exemption or to defer the implementation of the mandatory provisions of the Act, 1995 on any pretext whatsoever.
19. In the overall conspectus of the matter, particularly, the subsequent developments in the nature of appointment of Sri.Vishwanatha P.Hiremath, who is of 2005 batch to the post of Group-A (Junior 42 Scale) and preparation of the seniority list of 2005 batch creating rights in favour of various candidates namely, the petitioners in W.P.No.16349/2021 and also in view of the statutory right of the petitioner which was duly recognized by the Tribunal and upheld by this Court and reiterated by the Central Administrative Tribunal, we are of the considered view of not accepting the stand of the respondent-State Government, who is also petitioner in the connected matters. We are of the further view, that in order to do the justice to the parties, the respondent-State Government be directed to create a supernumerary post of Assistant Commissioner, KAS-Group-A (Junior Scale) and appoint the petitioner to the said post from the earliest point available in the recruitment notification dated 15.12.1999 for such appointment and grant all notional benefits including the seniority from the date of such appointment.
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20. We are inclined to adopt the aforesaid course of action taking into consideration of the peculiar facts and circumstances of the case, in which the Petitioner though successful in his challenge to the notification of 1999 and subsequent seniority selection list of the year 2005 before the Tribunal, was not able to reap the fruits and benefits of the said orders and which is directly attributable to the inaction on the part of the State in implementing the Order dated 14.07.2006 of the Tribunal has resulted in subsequent litigations and conflicting decisions in which the Petitioner has been denied the posting to Group-A while, Sri.Vishwanath P. Hiremath has been posted to Group-A. Further, the petitioners in the W.P.No.16349/2021 who are of the year 2005 batch have been unwarrantedly put to avoidable hardship. In the circumstances, we are of the considered view that a creation of supernumerary post in Group-A, (Junior Scale) Assistant Commissioner, Department of 44 Revenue and appointing the petitioner to the said post from the earliest point of appointment, pursuant to the recruitment notification dated 15.12.1999 would meet the ends of justice simultaneously protecting the interest of the other parties.
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21. In view of the above, following;
ORDER (I) Writ petition No.14084/2020 is partly allowed. (II) Order dated 03.09.2020 passed in Application No.2139/2010 by the Karnataka State Administrative Tribunal is set aside. (III) The Respondent-State is directed to create a supernumerary post and appoint the petitioner to the post of Assistant Commissioner, Revenue Department, KAS-Group-A (Junior Scale) from the earliest point available in the recruitment notification dated 15.12.1999 for such appointment and grant all notional benefits 45 including the seniority from the date of such appointment.
(IV) In view of the observation made above, Writ Petition No.795/2021 and Writ Petition No.10411/2021 and Writ Petition No.16349/2021 are disposed of.
(V) Under the facts and circumstances of the case parties to bear their cost.
Sd/-
JUDGE Sd/-
JUDGE TSN/RU