Karnataka High Court
Sri Rakshith Kumar Shetty vs The Under Secretary To Government on 9 July, 2019
Author: P.B.Bajanthri
Bench: P. B. Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE P. B. BAJANTHRI
WRIT PETITION No.11031/2014 (S-RES)
BETWEEN:
Sri. Rakshith Kumar Shetty,
Aged 40 years,
S/o Sri. B. Rajeev Shetty,
Lecturer in Hindi, Sri. Sharada College,
BASRUR -576211
Kundapur Taluk,
Udupi District. ...Petitioner
(By Sri. N. Jagadish Baliga and Sri.N.K. Ramesh, Advocate)
AND:
1. The Under Secretary to Government,
Department of Education,
(Collegiate Education), M.S. Building,
Bengaluru -560001.
2. The Director of Collegiate Education,
Palace Road,
Bengaluru -560 001.
3. The Commissioner of Collegiate Education,
Palace Road,
Bengaluru -560001.
4. Sri. Sharada College,
Basrur -576211,
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Kundapur Taluk, Udupi District,
Represented by its Principal
5. Dr. Dayananda N.,
Aged about 44 years,
S/o. Sri. Ramakrishna D.N.,
Sahitya Kendra, Dwaraka Building,
Ananthashayana Road,
Karkala -574104,
Udupi District. ...Respondents
(By Sri. Sreedhar N. Hegde, HCGP for R1 to R3;
Sri. Aruna Shyam M., Advocate for R4;
Sri. Vishwanath R. Hegde, Advocate for C/R5)
This writ petition is filed under Articles 226 & 227 of
Constitution of India praying to quash Annexure-A the
Government Order, Bangalore dated 05.02.2014 and
thereby direct the R-1 to extend the grant to the petitioner
to hold the post of the Hindi Lecturer in R-4 college.
This writ petition coming on for preliminary hearing
in 'B' group this day, the court made the following:
ORDER
In the instant petition, petitioner has questioned the validity of the Annexure-A-Government order dated 05.02.2014 by which petitioner's selection to the post of Hindi Lecturer in the 4th respondent-College has been rejected. Further, petitioner has sought for extending the grant to the petitioner to hold the post of Hindi Lecturer in the 4th respondent-College.
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2. Brief facts of the case are that State Department permitted to recruit for the post of Hindi Lecturer in the 4th respondent-College, pursuant to the notification of the Director-2nd respondent on 11.03.2008. Consequently, 4th respondent-College notified the post of Hindi Lecturer by fixing last date for submission of application as 10.04.2008. Amongst, petitioner and 5th respondent are candidates for the post of Hindi Lecturer. Pursuant to the notification, petitioner submitted an application on 04.04.2008, interview held on 17.10.2008 and was selected and appointed to the post of Hindi lecturer. Being aggrieved and dissatisfied by the petitioner's selection and non-selection of the 5th respondent, 5th respondent had approached this Court in W.P.No.33953/2019, which was decided in terms of earlier decision of this Court in WP.No.66552/2009 decided on 03.12.2012 and remanded the matter to the Government for fresh consideration. Thus, Government considered the grievance of the petitioner as well as 5th respondent holding that petitioner did not fulfill the requisite qualification for 4 the post of Hindi Lecturer as on last date of submission of application i.e., on 10.04.2008. Thus, petitioner is aggrieved by the order of the Government presented this petition.
3. Learned counsel for the petitioner vehemently contended that he had completed M.Phil/Ph.D on 10.10.2007. Further, it was submitted that cut-off date for submitting application and eligibility could not be taken into consideration as on 10.04.2008, which has to be considered only as on the date of interview. In this regard, he has pointed out Annexure-J - Annexure -I to the Government Order dated 03.10.1981 Rules relating to Appointment/Permissions in Aided and Unaided, at paragraph -2 relates to qualification reads as under:
"2. Qualification:- No employee shall be eligible for an appointment in any College unless he possess the minimum qualification indicated in the Annexure at the time of his selection."
4. Further, he relied upon the decision of Supreme Court in the case of Shankar K.Mandal and others V/s. 5 State of Bihar and Others reported in 2003 (9) SCC 519, paragraph 5 is reproduced as under;
"Pursuant to the directions contained in the earlier judgment of the High Court as affirmed by this Court, a fresh exercise was undertaken. Since the present appellants were not selected, writ petitions were filed before the High Court. In the writ petition which was filed by 55 persons and disposed of by the Division Bench the conclusions were essentially as follows:(1) Some of the writ petitioners (Writ petitioners Nos. 5, 18, 23, 28, 41 and 53) were over age at the time of their initial appointment and their cases were, therefore, wholly covered by the directions given by the High Court, and they were not entitled to relaxation of age;(2) So far as writ petitioners Nos. 6, 26, 30 and 55 are concerned, the stand was that they had not crossed the age limit at the time of making the applications for appointment and, therefore, were within the age limit at the time of initial appointment and were, therefore, entitled to relaxation of age in terms of the judgment passed by the High Court earlier and affirmed by this Court. This plea was turned down on the ground that what was relevant for consideration related to the age at the time of initial appointment and not making of the 6 application;(3) As regards writ petitioner No.24, he was under age at the time of appointment. He was permitted to file a representation before the Director of Primary Education and the High Court ordered that his case would be considered afresh;(4)In respect of writ petitioners Nos. 9 and 17, it was noted that they were refused absorption on the ground that they had not made any application in response to advertisement issued pursuant to the order passed by this Court. Since no material was placed to substantiate this stand and no reasons had been communicated for non-absorption, direction was given to consider representations if made by them within one month from the date of judgment. The said judgment is under challenge in C.A. No.916/1999. Appellants have taken the stand that in terms of this Court's judgment, a person who was not over age on the date of initial appointment was to be considered. Though it was conceded before the High Court that they were over age at the time of initial appointment, much would turn as to what is the date of initial appointment. The High Court had not considered as to what was the applicable rule so far as the eligibility regarding age is concerned. Learned counsel appearing for the respondent-State however submitted that having made a concession 7 before the High Court that they were over age on the date of appointment, it is not open to the appellants to take a different stand. The crucial question is whether appellants were over age on the date of their initial appointment. It is true that there was concession before the High Court that they were over age on the date of initial appointment. But there was no concession that they were over age at the time of making the application. There was no definite material before the High Court as to what was the eligibility criteria so far as age is concerned. No definite material was placed before the High Court and also before this Court to give a definite finding on that aspect. What happens when a cut off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non-prescription has been considered by this Court in several cases. The principles culled out from the decisions of this Court (See Ashok Kumar Sharma and Ors.v. Chander Shekhar and Anr. (1997 (4) SCC 18, Bhupinderpal Singh v. State of Punjab (2000 (5) SCC 262 and Jasbir Rani and ors. v. State of Punjab and Anr. (2002 (1) SCC 124) are as follows:8
(1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules;
(2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications; and (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority."
As per the above cited decision, relevant Rules are required tobe taken into consideration for determining the cutoff date to fill up the post. Thus, Government has committed an error in not appraising Annexure-J that read- with date of interview as on 17.10.2008. The petitioner has cleared M.Phil/Ph.D qualification on 10.10.2007 and viva- voce examination on 30.05.2008.
5. Per contra, learned counsel for the respondents supported the decision of the Government dated 9 05.02.2014 (Annexure -A). Respondents' counsel pointed out that issue No.2 with regard to qualification, the Government at Annexure-A has decided with reference to the date of Notification, last date of submission of application, acquisition of Ph.D/M.Phil qualification by the petitioner read with viva-voce on 30.05.2008 and opined that the petitioner was not eligible to make an application for the post of Hindi lecturer in terms of the Notification dated 20.03.2008 and the date on which the petitioner appeared for viva-voce to acquire Ph.D. qualification as 30.05.2008.
6. Heard learned counsel appearing for both the parties. Question for consideration in the present petition is, whether petitioner was eligible to apply for the post of Hindi Lecturer pursuant to the Notification dated 20.03.2008 or not. Undisputed facts are that petitioner completed M.Phil/Ph.D. course on 10.10.2007. He had appeared for viva-voce on 30.05.2008. Whereas, the Notification for the post of Hindi lecturer was Notified on 20.03.2008 through 10 paper publication while fixing last date as 10.04.2008. The learned counsel for the petitioner contended that in terms of Annexure-J, respondents should not have rejected the petitioner's claim for the reasons that eligibility for the post is required to be taken into consideration as on the date of interview and not as on last date for making the application i.e., 10.04.2008. He has also relied on Supreme Court decision cited supra. No doubt Annexure-J stipulates the qualification required to be taken into consideration at the time of selection. At the same time, there is no definition relating to time of selection is required to be taken into consideration at the time of selection of the candidate. Notification dated 20.03.2008 stipulated the last date for making application as 10.04.2008. Therefore, candidate must fulfill requisite qualification and other eligibility to make an application for the post of Hindi Lecturer as on 10.04.2008. At the time of selection of the candidates is required to be examined from the date of commencement of process of selection to the post of Hindi Lecturer. Selection process has commenced on 04.04.2008 when it was notified 11 for the general public to make application for the post of Hindi Lecturer, those who are eligible. Reasons behind in specifying cut off date in the notification as on 10.04.2008, is to see that application of eligible candidate is required to be submitted on or before last date. In the present case, undoubtedly, petitioner was fully qualified in M.Phil/Ph.D degree only as on the date of receipt of the marks card in Ph.D. i.e., much after the last date -10.04.2008. Assuming that he has attended Vivo-voce on 30.05.2008, still petitioner was not fully qualified to say that he had acquired M.Phil/Ph.D qualification as on 10.04.2008. Annexure-J is required to be interpreted (at the time of his selection) would be from the date of issuance of notification for inviting applications from the eligible candidates. A candidate cannot make application unless he fulfills the requisite qualification for the post he intends to apply. Notification 20.03.2008 do not stipulate candidate who had appeared for examination and awaiting result are also entitle to make application for the post. Undisputedly, petitioner had submitted an application prior to 10.04.2008, 12 the date on which he was not qualified as it is evident from the record that he had appeared for viva-vice for the acquisition of M.Phil/Ph.D., on 30.05.2008. The cited decision has no assistance to the petitioner, in view of the factual aspects of the matter. Accordingly, petitioner has not made out a case so as to interfere with Annexure-A. Accordingly, writ petition stands dismissed. By virtue of the interim order petitioner has continued in services even to this day. In view of the disposal of this writ petition, interim order merges with the final order and interim order stands cancelled.
Respondent No.4-College is hereby directed to pay salary of the petitioner up to date, if any, within period of three months from the date of receipt of this order, failing which, the petitioner is entitled to interest @ 8% per annum.
Sd/-
JUDGE SB