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2001 DIGILAW 73 (KAR)

State of Karnataka v. T. S. Nagaveni

2001-01-18

ASHOK BHAN, N.KUMAR

body2001
JUDGMENT Ashok Bhan, J.—State of Karnataka and Director, Department of Welfare of Disabled (hereinafter referred to as the Appellants) have filed this appeal challenging the order passed by the Single Judge allowing the writ petition filed by the writ Petitioner-Respondent-1. Learned Single Judge, after quashing the order impugned, has issued the following directions to the appellants: xx xx (ii) The Respondents are directed to reinstate the Petitioner into service within two weeks from the date of receipt of a copy of this order. (iii) The first Respondent is directed to consider the request of the Petitioner for relaxation of age qualification and approve her appointment in the light of what is stated above in the course of this order within eight weeks from the date of receipt of a copy of this order. (iv) The memo filed by the Petitioner that she will not claim the consequential benefits for the period from the date of her termination till the date of her reinstatement, is placed on record. FACTS: 2. Respondent-1, who belongs to Backward community (the fact which has not been controverted by the appellants) and who has passed S.S.L.C. examination, was selected and appointed as a Warden in the scale of Rs. 490-950 with effect from 19.10.1985 by the Director of Physically Handicapped (appellant-2) after following the due process of selection. She was assigned to work in the establishment of Indian Red Cross Society, Tumkur- Respondent-2 in the appeal. Respondent-2 runs a school at Tumkur for the benefit of physically and mentally handicapped children. The said school has been recognised by the State of Karnataka and is covered by the Grant-in-Aid Code vide Notification dated 11th August, 1982 and 100% grant-in-aid has been provided to the said school for payment of salaries to the persons employed in the said school. After completion of 10 years of regular and uninterrupted service in the cadre of Warden, Respondent-1 should have been absorbed in the regular service in accordance with the Rules with effect from 19.10.1995. Appellant-2, on 27.11.1993, made recommendation to the State Government for regularisation of the service of Respondent-1 as Warden. Instead of passing suitable orders regularising the service of Respondent-1, appellant-1 initiated action to dispense with the service of Respondent-1 on the ground that Respondent-1 was over-aged at the time of her initial entry into service. 3. Appellant-2, on 27.11.1993, made recommendation to the State Government for regularisation of the service of Respondent-1 as Warden. Instead of passing suitable orders regularising the service of Respondent-1, appellant-1 initiated action to dispense with the service of Respondent-1 on the ground that Respondent-1 was over-aged at the time of her initial entry into service. 3. At the time of entry into service, Respondent-1 was 32 years of age, her date of birth being 10th May, 1953. Date of birth of Respondent-1 is evidenced from the Marks card of SSLC produced by her as Annexure-B. Respondent-1 claimed that she was well within the age limit of 33 years as prescribed for the Backward community candidates under Rule 6(b) of the Karnataka Civil Services (General Recruitment) Rules, 1977. 4. Being aggrieved of the action taken by Appellant-1, Respondent-1 filed Writ Petition No. 29962 of 1996. The petition was accepted. Appellant-1 was directed to consider the recommendation made by Respondent-2 regarding regularisation of service of Respondent-1 and fixation of her pay in the scale of Rs. 490-950 within a period of six months. Direction was issued in the following terms: In that view of the matter, a direction is issued to the first Respondent-Secretary to consider and dispose off the recommendation made by the Director of the 2nd Respondent institution by his letter dated 27.11.1993 for regularisation of the Petitioner's service and also for fixation of her pay scale in the grade of Rs. 490-950 within six months from the date of receipt of copy of this Court's order. Ordered accordingly. 5. As no action was taken by the appellants on the orders passed by this Court, it prompted Respondent-1 to initiate contempt proceedings by filing C.C.C. No. 1444 of 1998. Notice was issued on the contempt petition on 26.8.1998. Appellant-1 placed on record a copy of the Endorsement dated 16.11.1994 (Annexure-D) issued to Respondent-1 rejecting the recommendation of Appellant-2. The endorsement dated 16.11.1994 was not placed before the Single Judge who had heard and disposed of Writ Petition No. 29962 of 1996 on 15.9.1997. Contempt petition was dismissed on 12.11.1998 reserving liberty with Respondent-1 to challenge the Endorsement dated 16.11.1994, if so advised. 6. Thereafter, Respondent-1 filed writ petition which has been allowed by the impugned order. Petition has been allowed by the Single Judge holding that Respondent-1 had power to grant relaxation of age for recruitment. Contempt petition was dismissed on 12.11.1998 reserving liberty with Respondent-1 to challenge the Endorsement dated 16.11.1994, if so advised. 6. Thereafter, Respondent-1 filed writ petition which has been allowed by the impugned order. Petition has been allowed by the Single Judge holding that Respondent-1 had power to grant relaxation of age for recruitment. Respondent-1 had worked for 14 years without any blemish; and appellant-1 had failed to exercise the discretion vested in it judiciously in favour of Respondent-1. Another reason assigned for quashing the endorsement is that the impugned order did not assign any reason for not relaxing the eligibility criteria regarding age. The writ petition has been allowed with the directions reproduced in para 1 of this Judgment. 7. We have heard the Government Advocate appearing for the appellants and the Counsel appearing for Respondent-1 at length. We are inclined to maintain the order of the Single Judge in allowing the writ petition but on different reasons which are as follows: State of Karnataka, with the object of extending and improving the facilities for the education of the disabled, allocates annual grant-in-aid to the registered voluntary organisations which run the Institutions for the disabled, subject to certain conditions. Conditions have been provided by issuing the Grant-in-Aid Code for the Institutions for the disabled in Karnataka (hereinafter referred to as the Grant-in-Aid Code). Clause 17 provides for the General Conditions of Service. Sub-clause (c) thereof provides the minimum and maximum age limit for appointment to be as prescribed for Government service. State of Karnataka, in exercise of its powers conferred by proviso to Article 309 of the Constitution of India has enacted the Karnataka Civil Services (General Recruitment) Rules, 1977. Rule 6 of the Rules as it stood at the relevant time provides age limit for appointment in Government service. Relevant provision of the Rule reads: 6. State of Karnataka, in exercise of its powers conferred by proviso to Article 309 of the Constitution of India has enacted the Karnataka Civil Services (General Recruitment) Rules, 1977. Rule 6 of the Rules as it stood at the relevant time provides age limit for appointment in Government service. Relevant provision of the Rule reads: 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 age of eighteen years and not attained the age of,- (a) thirty five years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes or Backward Tribes; (b) Thirty-three years in the case of a person belonging to any of the Backward castes or backward communities; (c) Thirty 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; xx xx xx 8. As per the SSLC certificate, date of birth of Respondent-1 is 10th May, 1953. She was appointed as Warden on 19.10.1985. She was aged 32 years 5 months approximately i.e., less than 33 years at the time of her initial appointment. Fact that she belongs to Backward community has not been denied by the appellants by filing a counter statement. The fact that Respondent-1 belongs to backward community and her age was less than 33 years having not been denied by the appellants, has to be accepted as such and proceeded with. Grant-in-Aid Code fixes the maximum age in the case of persons belonging to any of the Backward castes or Backward community to be 33 years. Respondent-1 being a Backward community candidate was thus entitled to recruitment in government service upto the age of 33 years. The view taken by Appellant-1 that Respondent-1 was overaged at the time of initial appointment thus cannot be accepted. Question of relaxing the maximum age limit to enter into service in Respondent-1 in the circumstance, does not arise. Respondent-1 having put in 15 years of service is entitled to continue in service. The endorsement issued by Appellant-1 declining to accept the recommendation for regularisation of the service of Respondent-1 being over-aged, cannot be sustained. Question of relaxing the maximum age limit to enter into service in Respondent-1 in the circumstance, does not arise. Respondent-1 having put in 15 years of service is entitled to continue in service. The endorsement issued by Appellant-1 declining to accept the recommendation for regularisation of the service of Respondent-1 being over-aged, cannot be sustained. The order of the Single Judge quashing the endorsement is maintained but for different reasons. 9. Service of Respondent-1 had been dispensed with. Learned Single Judge had directed the appellants and Respondent-2 to reinstate Respondent-1 in service within two weeks from the date of receipt of the copy of the order. We understand that Respondent-1 has been reinstated into service, but she has not been paid the salary for the period she has worked after her re- appointment in service. Respondent-1 had filed a memo before the Single Judge that she would not claim the consequential benefits for the period from the date of her termination till the date of her reinstatement. A direction is issued to the appellants and Respondent-2 to continue with the service of Respondent-1 with continuity in service. They are further directed to disburse the arrears of salary (if not already done) to Respondent-1 from the date of her reinstatement in service upto date within four weeks from today. 10. Appeal is dismissed with no order as to costs. 11. Office is directed to communicate a copy of this order to the appellants and Respondent-2 forthwith.