Karnataka High Court
Sri. Udaya Kumar K.P vs Bangalore Development on 29 November, 2021
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.30444/2019 (S-RES)
BETWEEN:
SRI UDAYA KUMAR K.P.
S/O K PUTTASWAMY
AGED ABOUT 25 YEARS
RESIDING AT NO.U-7/3
1ST ANJANEYA TEMPLE STREET
SESHADRIPURAM
BANGALORE-560 020.
...PETITIONER
(BY SRI M.R.SHAILENDRA, ADV.)
AND:
BANGALORE DEVELOPMENT
AUTHORITY
REP. BY ITS COMMISSIONER
SESHADRIPURAM
BANGALORE-560 020.
...RESPONDENT
(BY SRI K KRISHNA, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS RELATING TO SELECTION TO THE
POST OF FDA UNDER S.C. CATEGORY VIDE BACKLOG
NOTIFICATION DATED 09.03.2018 ANNX-A AND PERUSE THE
SAME; DIRECT THE RESPONDENT TO CONSIDER THE CASE
2
OF THE PETITIONER FOR SELECTION AND APPOINTMENT
TO THE POST OF DIVISION ASSISTANT UNDER S.C.
CATEGORY AS PER BACKLOG NOTIFICATION DATED
09.03.2018 ANNX-A WITH A FURTHER DIRECTION TO GRANT
ALL CONSEQUENTIAL BENEFITS AND AWARD COST.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 01/10/2021 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court under Article 226 of the Constitution of India praying for a direction to consider the case of the petitioner for selection and appointment to the post of First Division Assistant (FDA) under SC category as per backlog notification dated 9.3.2018 (Annexure-A) with a further direction to grant all consequential benefits.
2. Heard Sri M.R. Shailendra, learned counsel for the petitioner and Sri K. Krishna, learned counsel for respondent-BDA. Perused the writ petition papers. 3
3. The respondent-BDA issued notification dated 9.03.2018 inviting applications to fill up backlog vacancies of First Division Assistant, Second Division Assistant, Typist, and Stenographer. The notification indicated that the recruitment would be in accordance with notification dated 21.11.2001 i.e., the Karnataka Civil Services (Unfilled vacancies reserved for the Persons belonging to the Scheduled Castes and Scheduled Tribes) (Special Recruitment) Rules 2001 (for short 'the 2001 Rules'). The candidates could submit application from 19.3.2018 to 31.03.2018. Qualification prescribed for the post of FDA was B.A., B.Com, B.Sc. or equivalent Degree from recognized University; pass in SSLC with Kannada as first language and pass in Data Entry Operator course from Government recognized Institute.
4. The petitioner submits that he belongs to SC category and possesses B.Com. Degree. Further it is submitted that petitioner has passed SSLC with Kannada 4 as First Language and he had also passed Data Entry Operator course.
5. The petitioner being qualified applied for the post of FDA by uploading the online application on 19.03.2018. Further the petitioner submits that as required the petitioner uploaded the Degree marks card, SSLC marks card as well as the certificate of Data entry Operator course. Learned counsel would submit that selection was in accordance with 2001 Rules and merit list is to be prepared on the basis of the marks obtained in the qualifying examinations. The respondent-BDA is said to have published list of candidates, who had applied for the post of FDA to one backlog post and the list indicated that none of the candidates were eligible for appointment, since the candidates had not uploaded one or the other documents along with their application.
6. The learned counsel would contend that applications could be submitted only through online and the 5 candidates were required to upload all the required documents. Referring to Annexure-F copy of the application submitted by the applicant, learned counsel submits that website showed receipt of the petitioner's application. It is further submitted that copy of the application would indicate with regard to production of documents. However, the respondent-BDA published a statement showing the list of candidates, who applied for FDA post under the backlog SC category in the age group of 29 to 40 years, wherein the petitioner's name appears at serial No.2 and it indicates that petitioner has not produced or uploaded Data Entry Operator certificate and Degree marks card. Further he submits that all 145 applications received for one backlog post of FDA was rejected on the ground that the applicants have failed to produce one or the other relevant documents. It is stated that petitioner is working as Data Entry Operator in BDA itself through out sourcing.
6
7. The learned counsel for the petitioner contends that when the petitioner has successfully uploaded all the documents, the respondent - BDA could not have rejected petitioner's application, which is arbitrary and unreasonable. Further he submits that it is unimaginable and unthinkable to say that none of the candidates have produced all the required documents. It is his contention that since according to BDA none of the candidates have produced all the relevant documents, the respondent-BDA ought to have provided an opportunity to all the candidates to produce the relevant documents.
8. Learned counsel for the petitioner referring to the statement of objection submits that the respondent-BDA has stated that petitioner was over aged i.e., he was more than 40 years as on the date of submitting the application. He submits that the notification inviting application is ambiguous with regard to the age qualification. It is his submission that respondent-BDA ought to have indicated a specific cut off date, with reference to the eligibility 7 criteria and it cannot be the date of submitting the application as indicated in the notification. Learned counsel would submit that cut off date for the eligibility criteria could be the date of notification or the last date for submitting the application, and it cannot be the date of submitting the application by each candidate. According to the learned counsel if the cut off date is taken as the date of submitting the application, it would not be uniform and would be different for each candidate, since the candidates could submit their application between 19.03.2018 to 31.03.2018. It is submitted that notification mentioned in paper publication (Annexure-A) and (Annexure-R1) differ and vary. Further the learned counsel would submit that mentioning of the petitioner's age as 25 in the cause title is typing error and that the petitioner crossed the age of 40 years on 13.3.2018 and as on the date of the paper notification the petitioner was within 40 years. Thus he prays for allowing the petition. 8
9. Per contra, Sri K. Krishna learned counsel appearing for the respondent-BDA vehemently opposes the prayer of the petitioner. It is his submission that respondent-BDA received totally 208 applications for one backlog post of FDA and no candidate fulfilled all the eligibility criteria. Learned counsel would submit that notification inviting application makes it clear that the candidates shall upload all the relevant documents along with their application, but none of the candidate had uploaded all the required documents. Further the learned counsel would contend that as on the date of submitting the application, the petitioner was ineligible as he had crossed 40 years, which is the maximum age limit prescribed under the notification. The committee constituted for the purpose of scrutinizing the applications, on scrutiny had come to the conclusion that in respect of one backlog post of FDA as none of the applied candidate had produced relevant documents, it decided to re-advertise after one year. Thus it is prayed for dismissal of the writ petition. 9
10. On hearing the learned counsel for the parties and on perusal of the writ petition papers, the following points would arise for consideration :-
a. Whether the petitioner is over aged to apply for the post of FDA in pursuance to the paper notification (Annexure-A) dated 09.03.2018?
b. What relief ?
Answer to the above points would be in the negative for point No (a) and as per final order in respect point No (b).
In the peculiar facts and circumstances of the case, the petitioner is not over aged to apply for the post of FDA in pursuance to the paper notification dated 09.03.2018 and the respondent-BDA ought to have provided an opportunity to all the candidates, who had applied for the post of FDA to produce relevant documents.
11. The respondent-BDA by notification (Annexure-A) dated 09.03.2018 invited applications among other posts 10 to fill up one back log post of FDA. The notification published in 'Prajavani' Kannada News paper reads as follows :-
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12. A careful reading of the above notice indicates the date of notification as 09.03.2018; that the backlog recruitment would be in accordance with notification dated 21.11.2001 i.e, 2001 Rules. Even though the notification is dated 09.03.2018 the aspiring candidates could submit applications only between 19.03.2018 to 31.03.2018. The respondent-BDA along with their statement of objection placed on record the same notice, which bears the same number but is dated 12.03.2018. Even though the notice is one and the same, different dates are mentioned in Annexures-A and R1. The notice indicates that the candidates to upload all the relevant documents along with their application. With regard to age criteria, Annexure-R1 notice reads as follows:-
"1. C¨sÀåyðAiÀÄÄ CfðAiÀÄ£ÀÄß ¸À°è¸ÀĪÀ ¢£ÁAPÀzÀAzÀÄ 18 ªÀµÀð vÀÄA©gÀ¨ÉÃPÀÄ ºÁUÀÆ 40 ªÀµÀð «ÄÃjgÀ¨ÁgÀzÀÄ."
which means to fulfill the age criteria the date of submission of application by a candidate would be 12 relevant. In other words, there is no fixed or uniform date with regard to age criteria. It would be different date between 19.03.2018 to 31.03.2018 depending upon the date on which a candidate submits his/her application. Age qualification would be determined as on the date of submission of application by each candidate. Moreover there is no reason or basis to permit the candidates to apply only from 19.03.2018, when the notification is dated 09.03.2018. The candidates ought to have been permitted to apply from the date of its publication. There is no uniformity in determining the age qualification, which would be violative of Articles 14 and 16 of the Constitution of India.
13. As mentioned in recruitment notice (Annexure-A) dated 09.03.2018, it's a backlog recruitment and recruitment would be in accordance with 2001 Rules. Rule 3 of 2001 Rule prescribes age, which reads as follows :-
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"3. Age:- Notwithstanding anything to the contrary contained in the Karnataka Civil Services (General Recruitment) Rules, 1977, or the rules of recruitment specially made for recruitment to any service or post, the candidates for recruitment to any service or post under these rules must have attained the age of eighteen years but not attained the age of forty years."
The above Rule only prescribes the minimum and maximum age for recruitment. It would not mention the date on which the candidate should fulfill the age qualification. Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977, prescribes age limit for appointment. Sub-rule (1) of Rule 6 which is relevant for the present case reads as follows :-
"6. Age limit for appointment:-
(1) Save as otherwise provided in the rules of recruitment specially made and applicable to any service or post prescribing higher age limit, every candidate for appointment by direct recruitment must have attained the 14 age of eighteen years and not attained the age of.-
(a) [forty years] in the case of a person belonging to any of the Scheduled Castes or Schedule Tribes or Category-I of other Backward Classes;
(b) [thirty-eight years] in the case of a person belonging to any of the Category-II (a) or II
(b) or III(a) or III(b) of other Backward Classes; and
(c) [thirty-five years] in the case of any other person, on the last date fixed for the receipt of applications or on such other date, as may be specified by the Appointing Authority.] "
A reading of the above Rule makes it clear that the minimum or maximum age prescribed therein shall be determined on the last date fixed for receipt of the applications or on such other date, as may be specified by the appointing authority.
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14. In the case on hand, the age qualification prescribed is to be fulfilled as on the date of submitting application by each of the candidate. The time given for submission of application was from 19.03.2018 to 31.03.2018, which means the age qualification could be determined between 19.03.2018 to 31.03.2018 and there is no fixed or cut off date to determine the age criteria or qualification. It would be different date for each candidate depending on the date on which he submits application.
15. The Hon'ble Apex Court in SHANKAR K. MANDAL AND OTHERS Vs. STATE OF BIHAR AND OTHERS reported in (2003) 9 SCC 519 while considering the effect of non- prescription of cut off date for fulfilling the qualification relating to age, at paragraph 5 it is held as follows :-
"5............................................................. .................................................................. ..................................................................
There was no definite material before the High Court as to what was the eligibility criteria so far as 16 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 .v. Chander Shekhar , Bhupinderpal Singh v. State of Punjab and Jasbir Rani v. State of Punjab) are as follows:
(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.
(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."17
Keeping in mind the above legal position, the facts of the present case will have to be dealt with. The date of birth being 14.03.1978, the petitioner attained 40 years on 13.03.2018. As on the date of paper notification (Annexure-A) dated 09.03.2018, the petitioner had not attained 40 years and as such the petitioner was eligible and qualified to apply for the backlog post of FDA. As the date mentioned in Annexures-A and R1 notice inviting application are different, the date of notice could be taken as 09.03.2018, which was published in news paper dated 13.03.2018. Since the petitioner was eligible and qualified with regard to his age qualification as on the date of notice dated 09.03.2018, in the peculiar facts of the present case, I deem it appropriate to direct the respondent-BDA to determine the age qualification as on the date of notification i.e., 09.03.2018. If the age qualification is determined as on 09.03.2018, no prejudice would be caused to any other candidate, otherwise great injustice would be caused to the petitioner, if any other date is 18 taken for determination of age qualification, since petitioner would attain the age of 40 years on 13.03.2018. If any other date is taken or fresh recruitments is permitted, the petitioner would not get chance to apply or participate in the selection process since he would be over aged and this is the only last opportunity in petitioner's life time to participate in a selection process of a Government or public authority.
16. As stated above the proceedings of the Committee constituted for recruitment of one backlog post of FDA in the respondent-BDA (Annexure-R3) dated 14.02.2019, the Committee has taken a decision to re-advertise one backlog post of FDA after one year, since there is no eligible candidate for appointment. It is the case of the respondent-BDA that it had received 208 applications for one backlog post of FDA and none of the applicants had produced all the documents to become eligible for appointment. It is stated that the candidates have not produced/uploaded one or the other documents. It is not 19 known as to whether there was any technical issue in the application receiving portal. In that regard doubt arises when the respondent-BDA states that no candidate had uploaded one or the other document. When all the candidates, who had applied for the post of FDA had not produced/uploaded one or the other document, it would have been fair and reasonable on the part of respondent- BDA, if it had given an opportunity to all the candidates to produce relevant documents. If an opportunity was provided to all the candidates, no complaint or violation of Articles 14 and 16 of the Constitution of India could be made and on the other hand, it would be in compliance with Articles 14 and 16 of the Constitution of India. In the said circumstances, I deem it appropriate to direct the respondent-BDA to afford an opportunity to all the candidates to produce the relevant documents, who had applied pursuant to the employment notice dated 09.03.2018 for one backlog post of FDA. On receipt of the relevant documents the respondent-BDA shall proceed 20 further and finalize the recruitment to one backlog post of FDA.
17. In the result the writ petition is partly allowed. A writ of mandamus is issued to the respondent-BDA to afford an opportunity to all the candidates, who had applied for one back log post of FDA in pursuance to notice dated 09.03.2018 to produce relevant documents within a reasonable time. Thereafter, the respondent-BDA is directed to finalise the selection process to one post of backlog FDA in pursuance to notice dated 09.03.2018 (Annexure-A).
Time for compliance: Three months from the date of receipt of copy of this order.
Sd/-
JUDGE NG* CT:bms