Karnataka High Court
Sri M. Padmanabha vs State Of Karnataka on 11 March, 2014
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.10221/2014 (S-RES)
BETWEEN:
Sri M. Padmanabha,
S/o. late M. Marappa,
Aged about 43 years,
Working as Junior Assistant,
U.C. P.E. College,
Gnana Bharati Campus,
Bangalore University,
Bangalore - 560 056.
...PETITIONER
(By Sri Girish Bandi, Adv.)
AND:
1. State of Karnataka,
Rep. by its Secretary to Government,
Department of Higher Education,
Multistoried Building,
Dr. Ambedkar Veedhi,
Bangalore - 560 001.
2. Bangalore University,
Rep. by its Registrar,
Gnana Bharathi,
Bangalore - 560 056.
...RESPONDENTS
(By Smt. M.S. Prathima, HCGP)
2
This petition is filed under Article 226 of the
Constitution of India, praying to call for records and
declare that non-consideration of the claim of the
petitioner on par with 15 similarly situated persons to the
post of FDA from Group-D post on compassionate grounds
from the date if initial appointment is discriminatory,
illegal, arbitrary and contrary to law and the Rules, etc.
This petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
Petitioner's father, an employee of Bangalore University, while in service, died on 13.09.1999. On an application made, the petitioner was appointed as 'Peon' in the University, by an order dated 05.12.2000, vide Annexure-K. He accepted the appointment without any demur. However, after more than three years, he submitted representations to appoint him as 'First Division Assistant'. Claiming that the University has considered the claims of 15 similarly situated persons and appointed them to the post of FDA, though they were initially appointed to the post of Group-D, by making reference to an Order dated 14.06.2006 passed in W.P.No.32634/2003, petitioner having submitted further representations on 3 30.09.2013 and 11.02.2014 and finding no response, this writ petition was filed asking for a mandamus as against respondent No.2, to consider the representations vide Annexures - L, M, N, P & Q and appoint him to the cadre of FDA and extend all service benefits.
2. Sri Girish Bandi, learned advocate, contended that the 2nd respondent ought to have considered the representations submitted by the petitioner in the light of the Order passed in W.P. No.32634/2003 on 14.06.2006 and also the appointment orders issued to 15 other employees on 28.02.2007 vide Annexure-R. Learned counsel submitted that since the petitioner was not given appointment on 05.12.2000, commensurate with the academic qualification possessed by him, on account of the discriminatory treatment, there is violation of Article 14 of the Constitution and hence, interference is called for.
3. Perused the writ record.
4. Undisputedly, the petitioner accepted the appointment to the post of Group-D / Peon vide Annexure-
4K without any demur and the first of the representations submitted, even according to the writ petition averments was on 24.01.2003. The petitioner cannot seek subsequent consideration for higher post, in as much as, the petitioner should progress in the ladder and earn promotions to the next higher post/s. Mere possessing of the higher qualification than the one prescribed for the post offered vide Annexure-K, cannot be a criterion for claiming appointment on a subsequent occasion, to a higher post.
It is not the case of the petitioner that when he was appointed on 05.12.2000, there was any discriminatory treatment by the 2nd respondent. What has happened subsequently i.e., on 28.02.2007, i.e., more than six years of the petitioner's appointment, cannot have any bearing with regard to the regulation of the petitioner's service conditions.
5. In identical circumstances, considering the order dated 14.06.2006 passed in W.P.No.32634/2003 and its affirmation in writ appeal, after taking into 5 consideration catena of decisions of the Apex Court in the matter of appointment on compassionate ground and with reference to the qualification possessed by the person, in SMT. BHARATI Vs. STATE OF KARNATAKA REP. BY THE PRL.
SECRETARY TO THE RURAL AND URBAN DEVELOPMENT DEPARTMENT AND ANOTHER, ILR 2013 KAR 2055, it was held as follows:
4. Grant of appointment to a dependent of an employee who died in harness is governed by the scheme of the Rules. Pet itioner 's husband died in har ness on 11.02.2000. Petit ioner being a graduate, applied f or grant of appointment on compassionate grounds. Consider ing the claim, respondent No.2 issued an order of appointment dated 14.12.2000, whereby, the pet itioner was appointed as SDA. The pet itioner having worked in the said post, af ter lapse of 10 years, submitted a represent ation dated 26.03.2011, to appoint her in the cadre of FDA, instead of SDA. In support of the claim, reliance was placed on the order passed in the case of H.N.GURUPR ASAD (W .P.32634/2003 DD 14.06.2006).
5. In the case of H.N.GURUPR ASAD, noticing that the Gover nment by an or der dat ed 24.04.2003 had directed all cases f or appointment on compassionate grounds to be considered on t he basis of educational qualif icat ion of the candidat es and, if , the candidate is a graduat e, appointment shall be made t o the post of FDA, f inding the 6 action of the r espondents to be arbitrar y and discr iminator y, a direction was issued to consider the case f or appointment as FDA in the available vacancy.
The said order when questioned in W.A.No.2060/2 006, by making ref erence to R.6(4), it was held as f ollows:
"In our considered opinion, the above rule is not attracted to the f acts of this case at all. If the author ities had over looked the qualif ication the applicant already possessed at the time of his appointment and also ignored the representation of the applicant mainly because the authorit ies have passed an appointment order to a lower post, will not take away the r ight of the pet itioner t o claim the higher post. Therefore, in our considered opinion Section 6(4) of the Karnataka Civil Services ( Appointment on Compassionate Grounds) Rules, 1996 is not applicable to the facts of the present case. Therefore, we do not f ind any justif icat ion to interf ere with the order of the lear ned Single Judg e".
6. In the case of STATE OF ORISSA Vs. PRASANA KUMAR SAHOO - (2007) 15 SCC 129, Apex Court has held that the State is bound by the constitutional scheme to treat all persons equally in the matter of grant of public employm ent as envisaged under Art icles 14 & 16 of the Const itution of India and even a policy decision taken by the State in exercise of its jurisdiction under Art icle 162 of the Constitut ion of India would be subser vient to the recruitment r ules f ramed by the Stat e eit her in terms of a legislat ive Act or the proviso to Article 309 of the Const itution of India. It has been f urther held that, a purported policy decision issued by way of an execut ive instruct ion cannot overr ide the statute or statutor y r ules f ar less the constitutional pr ovisions. It has been f urther held that, if by reason of some misconception or other wise 7 the Tribunal had granted some r elief in f avour of some employees, t he same by itself would not conf er any legal right upon a person f or being absor bed in the State ser vices wit hout compliance of the mandator y provisions of the recruitment rules and the constitutional scheme adumbrated under Article 16 of the Constitution of India. At para 20 of the judgment, it has been held as f ollows:
" It may be that some other persons similar ly situat ed have been appointed. But Art icle 14 as is well known contains a posit ive concept. A wr it of mandamus can be issued by the High Court only when there exists a legal right in the wr it pet itioner and corresponding legal obligat ion in the State. Only because an illegalit y has been committed, the same cannot be directed to be perpetuated by a court of law."
In the light of the said enunciat ion of law, the Gover nment order dated 24.04. 2003 being subser vient to the Rules, cannot override the provisions made in the Rules.
7. Respondents have not brought to the notice of the Court, when the case in H.N.GURUPRASAD(supra) was decided, the decision of the Apex Court, in the case of STATE OF RAJASTHAN VS. UMRAO SINGH, (1994)6 SCC 560, wherein, in ident ical circumstances, it has been held as f ollows:
"8. Admittedly the respondent's father died in harness while working as Sub-Inspector, CID (Special Branch) on 16.3.1988. The respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub-inspector of LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 8 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of "endless compassion". Eligibility to be appointed as Sub- Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case".
9. Since both the sides relied on Naresh Kumar Bali's case, we will now refer to the same. We had indicated our mind in that very ruling in paragraph 15 of the said judgment. It reads as under:
"Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed."
Therefore, once the right has consummated as we indicated earlier, any further or second consideration for a higher post on the ground of compassion would not arise."
(emphasis supplied )
7. In the case of I.G. (KARMI K) AND OTHERS VS. PRAHALAD MANI TRIPATH, (2007) SCC 162, in almost identical circumstances, it has been held as f ollows:
"12. Furthermore, t he respondent accepted the said post without any demur whatsoever. He, theref ore, 9 upon obtaining appointment in a lower post could not have been permitted to turn round and contend that he was ent itled f or a higher post althoug h not eligible theref or."
8. Article 141 of the Constitut ion provides that t he law declared by the Supreme Court shall be binding on all the Courts within the territory of India. The principle under lying the said Article is salutar y in the interest of administrat ion of justice and the Article promotes certaint y and consistency. It is trite that, if there is divergence of opinion bet ween the decisions of the High Courts and the Supreme Court, the decision of the Supreme Court is binding on the point. The decision in the case UMR AO SINGH (supra) has not been br ought to the not ice of the Court, when the case of H.N.GURUPR AS AD (supra) was decided. The law on the point has been categorically declared by the Apex Court. Hence, with due respect, the order and the judgment in the case of H.N.GURUPRASAD (Supra), need not be applied and f ollowed, in view of the mandate of Article 141 of the Const itution of India. The ratio of law in the case of UMRAO SI NGH (supra), squarely applies to this case.
9. Rule 6 conf ers the power on the competent author it y to issue an order of appointment on r eceipt of applicat ion under Rule 5 f rom a dependent of a deceased government ser vant seeking appointment under the Rules. Sub-rule (4) of Rule 6 being material the sam e is r eproduced hereunder;
"Appointment once made under these rules shall be f inal and no f resh appointment to a diff erent post or higher post under these rules shall be permissible."10
(underlining is by me)
10. Concededly, Sadanand Gundappa Gadad, husband of the pet itioner died in harness on 11.02. 2000 while working as a waterman in t he off ice of the Town Municipal Council, Mudalagi. The petitioner f iled an application to appoint her on compassionate grounds. On a considerat ion of the claim, she was appointed to the post of SDA by an order dated 14.12. 2000, which she accepted and joined dut y and has been working in the said post. Mer ely because pet itioner has gained exper ience and posses the qualif ication, her appointment cannot be changed t o FDA Cadre and if the request of the petit ioner made in t he representat ion dated 26.03.2011 is directed to be considered, the same would be in violation of sub-rule ( 4) of Rule 6, noticed supra. The right of the petit ioner f or appointment on compassionate grounds has consummated on 14.12.2000 and ther e cannot be any f urther or second considerat ion f or a higher post, af ter the lapse of more than a decade of the f irst appointment. The petit ioner should progress in the ladder and ear n promotion to the post of FDA.
11. The last cont ention of Sri R. K. Kulkarni, that the action of the r espondents is discr iminatory, since some similar ly situated persons have been appointed to the higher posts based on the G.O. dated 24.04.2003 and also the Order and Judgment passed in the case of H.N. GURUPRASAD(supr a), has no mer it. In this connect ion, suff ice to make a ref erence to the UNION OF I NDIA AND 11 ANOTHER Vs. ARULMOZHI INIARASU AND OTHERS - (2011) 7 SCC 397, wherein it has been held as f ollows:
"26. Last ly as regards the submission t hat the act ion of the appellants is highly discriminator y inasmuch as some sim ilarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petit ioner and corresponding legal obligation on the State. Only because an illegalit y has been committ ed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. "
(emphasis supplied by me) In the circumstances, the petit ioner having no legal right and the respondents having no corresponding obligation, the claim of the petitioner putf orth in the represent ation dated 26.03.2011 being contrar y to sub- rule (4) of Rule 6 and also the ratio of law in t he decisions of the Apex Court, noticed supr a, wr it of mandamus prayed by the petitioner cannot be issued to the respondents. The petition is devoid of merit and hence, is rejected, with no or ders as to costs.
For the reasons recorded in the case noticed supra, this writ petition is devoid of merit. There is no ground to issue Rule Nisi. Consequently the petition is rejected.
Sd/-
JUDGE sac*