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Karnataka High Court · body

2011 DIGILAW 1125 (KAR)

M K Jagadeesh v. District & Sessions Judge

2011-11-21

N.KUMAR

body2011
Judgment :- 1. Unfortunately, even after the Supreme Court, twice clarifying the legal position, the confusion persist in deciding the seniority of persons and there is an attempt to scuttle the judgment of the Apex Court being implemented in letter and spirit. Therefore, all these disputes have to be resolved in the background of what the Apex Court has said and on the basis of the interpretation to be placed on the judgment of the Apex Court, which is applicable to the facts of this case without looking into any other judgment covering the field. 2. The Government of Karnataka issued a circular dated 06.06.1997 providing for a weightage being accorded to the rural candidates as defined in the Karnataka Civil Services (General Recruitment) Rules, 1977. In pursuance of Rule 3(B) which enabled and provided for such a weightage being extended to such candidates. Notifications were issued to recruit personnel to various departments of Government and in that recruitment made, rural weightage was given and on that basis candidates were selected and appointed. Persons who were excluded from the merit list because of the rural weightage given, filed writ petitions before this Court challenging Rule 3(B) of the Karnataka Civil Services (General Recruitment) Rules, 1977, for short, hereinafter referred to as the ‘Rules”. The learned Single Judge of the Court struck down the said Rule as being unconstitutional by judgment dated 11.11.1998. While allowing the writ petitions, the learned Single Judge directed that those appointments which had already been made in accordance with the impugned Rule would not be disturbed. The State Government appealed against the decision of the learned Single Judge. During the pendency of the appeal, the Division Bench passed an interim order dated 04.12.1998 staying the operation of the order of the learned Single Judge subject to the following conditions: “(1) selections/appointments were thereafter would be subject to the decision in the appeal. (2) the appointing authority before giving the order of appointment to a candidate having rural weightage was required to obtain an undertaking from the candidate that the appointment given would be subject to the decision in these proceedings pending before the High Court, and (3) that the candidate would have no right to the post in the event the order of the learned Single Judge was upheld. 3. 3. During the pendency of the appeal, the appointments were made in compliance with the interim order of the appellate Court. All appointees gave undertakings as specified in the interim order and were perfectly aware that their appointments were subject to the decision in the pending appeal. The appeal was ultimately dismissed by the Division Bench of the High Court on 26.11.1990. However, while affirming the decision of the learned Single Judge that Rule 3(B) of the Karnataka Civil Services (General Recruitment) Rules, 1976 was ultra vires, the Division Bench directed that those persons who had been appointed during the pendency of the appeal till the date of the Division Bench’s decision namely 26-11-1999, on the basis of their rural weightage, would continue in service. 4. Some of the candidates who had been superseded by the appointees with rural weightage, approached the Apex Court challenging the confirmation of the order passed by the Division Bench insofar as it allowed the appointees with rural weightage whose appointments were subject to the outcome of the appeal, to continue in service. The Apex Court disposed of the appeals including appeal being C.A.No.7105 of 2011 on 11-10-2001 holding that the directions of the Division Bench of the High Court allowing the appointees with rural weightage to continue in service despite they having been appointed only pursuant to the interim order passed by the Division Bench were unsustainable in law. Those directions of the Division Bench of the High Court in relation to appointments made during the pendency of the appeal and also the conditional selections made on the basis of rural weightage, were accordingly set aside. 5. In pursuance of the aforesaid judgment of the Apex Court, the persons whose names found place in the seniority list on the basis of the rural weightage whose name did not appear in the seniority list after excluding the rural weightage, were directed to hand over charge. Several such persons again approached the Supreme Court seeking clarification and review of the judgment passed by the Supreme Court. In fact, even the High Court had issued notifications and had passed orders contrary to the judgment of the Supreme Court. The Supreme Court took not of such orders passed by the High Court as well as the Government and observed that: “………. In fact, even the High Court had issued notifications and had passed orders contrary to the judgment of the Supreme Court. The Supreme Court took not of such orders passed by the High Court as well as the Government and observed that: “………. If the subsequent clarification has been misunderstood by the High Court and the State, we can only say that it was unfortunate and surprising as it could not reasonably be accepted that on a review application which was being dismissed the Court had in fact allowed the review and redecided the matter in a diametrically opposite manner. Where the Rule has been declared to be unconstitutional the consequences must apply to all the services. The Rule could not be taken to be good in part and bad in part. Therefore, only to the extent that appointments had been specifically and expressly protected by this Court the striking down of the Rule would operate against all persons who were otherwise not so protected. The question of continuing the “interim appointees” in service, therefore does not arise”. 6. Therefore, they quashed the second notification where such appointments were given. Therefore, considering the submissions of the private respondents and other interim appointees appointed under those notifications, which were quashed, the Apex Court on equitable consideration allowed them to take interview in respect of the examination held in 2002. Further, it observed as under: “If any of these respondents are successful as a result of this, they shall be treated as having been appointed from the date of the issuance of their fresh appointment letter. Their past service will not be taken into consideration for the purpose of grating them seniority in any fashion whatsoever.” (underlining by me) 7. Therefore it was made clear in unmistakable terms that those persons whose name found a place in the original seniority list on account of rural weightage if they are excluded after the judgment of the Apex Court and again they are appointed in any manner, the services which they had put in from the date of appointment till the date of removal shall not be taken into consideration for the purpose of seniority. Their seniority is to be computed only from the date of fresh appointment order. Their seniority is to be computed only from the date of fresh appointment order. Therefore, by no stretch of imagination they can be seniors by virtue of their past service against persons whom they displaced in the earlier seniority list. 8. The Supreme Court also made it clear that how the seniority of those persons who were successful in the writ petitions is to be computed. In respect of them this is what has been said: “……If their case for appointment had not been considered only because otherwise unqualified candidates had been appointed by virtue of Rule 3(B) and if as a result of the decision of this Court on 11-10-01 any vacancies have been created in the year in which these writ petitioners had successfully qualified and been named in the merit list, they shall, against the vacancies so created, be entitled to be appointed in their turn and in accordance with the merit list. This exercise shall also be carried out within a period if eight weeks from date. However, we make it clear that if any of the writ petitioners is so appointed his/her appointment will be taken from the date of issuance of the order of the appointment.” (Underlining by me) 9. Now the question is, what is the meaning to be given to these words. 10. Relying on these observations, it is contended that the seniority of persons who were earlier not appointed, who are appointed by virtue of the Supreme Court judgment is to be computed from the date of issuance of the order of appointment. Is it so is the question. If it is so, the earlier portion of the observation of the Supreme Court has no meaning. The entire paragraph is to be read as a whole. In the earlier paragraph, it has been specifically said that they shall, against the vacancies so created, be entitled to be appointed in their turn and in accordance with the merit list. That is immediately after the recruitment process was complete, select list was published. Because the persons with rural weightage in the select list were appointed in their place. Now that the Rule is struck down, the resultant position is, all these persons whose name found a place in the select list, who were selected by virtue of the rural weightage, they should be removed from that list. Because the persons with rural weightage in the select list were appointed in their place. Now that the Rule is struck down, the resultant position is, all these persons whose name found a place in the select list, who were selected by virtue of the rural weightage, they should be removed from that list. In those vacancies, the persons by virtue of their merit should have found a place in the select list, should be appointed against those vacancies, in their turn and in accordance with the merit list. 11. Then the question would arise when all these exercise was done nearly after a decade, when would be the effect of such appointment order. It is here the Supreme Court said that though they would be appointed to those posts, the appointment order taken effect from the date of issuance of the order. In other words, they cannot claim any monetary benefit from the date their names were included in the seniority list till the date of order of appointment. For the purpose of calculating the seniority, their date of appointment is not relevant. Their seniority is to be computed from the date of appointment of the candidates who were appointed in their place, whose services were later terminated by virtue of the Supreme Court judgment. The Supreme Court has categorically stated that the past service of such candidates will not be taken into consideration for the purpose of granting them seniority in any fashion whatsoever. Therefore, these re-appointees can never be seniors to the persons whom they displaced earlier by virtue of rural weightage. In so far as the persons who were appointed by virtue of the Supreme Court order are concerned, two dates assumes importance. For the purpose of getting monetary benefits, the date of order of appointment is material. For the purpose of seniority, it is the date on which the candidates with rural weightage were appointed in their place is material. Therefore, though their date appointment is subsequent to the order of the Supreme Court, for the purpose of computing seniority, the date anterior to the Supreme Court order is to be taken and their seniority is fixed. 12. It is contended that persons who are not so appointed, unless they complete the probationary period of two years, they would not be eligible for confirmation and is only after confirmation their seniority is to be reckoned. 12. It is contended that persons who are not so appointed, unless they complete the probationary period of two years, they would not be eligible for confirmation and is only after confirmation their seniority is to be reckoned. This is an extraordinary situation. These petitioners are not at fault. They succeeded in all the three Courts and at the same time they cannot be denied the benefit by applying the general law. All these persons who are affected by those rural weightage and who approached the Courts are entitled to this benefit of seniority which the Supreme Court as in unmistakable terms declared. In fact, the State, after the Judgment in VITHAL AND OTHERS Vs. STATE OF KARNATAKA AND OTHERS reported in ILR 2003 KAR 2031 rightly framed the Rules, Karnataka Civil Services (Absorption of the persons appointed to the State Civil Services with the benefit of Rural Weightage) (Special) Rules, 2003. Rule 4 of the said Rules reads as under: “4. Leave, Seniority, Pay and Pension of the persons absorbed.- (1) The service rendered by the persons absorbed under these rules prior to the date of such absorption shall be taken into consideration for determining their leave and pension but shall not be considered for the purpose of pay and seniority. (2) The pay of the absorbed persons shall be fixed at the minimum of the time scale of pay of the post to which they are absorbed”. 13. Therefore, this Rule is in conformity with the law declared by the Apex Court in the aforesaid Vithal’s case. The persons who were re-appointed are not entitled to the benefit of seniority. Persons who are appointed by virtue of the judgment of the Apex Court are entitled to seniority from the date of appointment of those candidates with rural weightage were appointed and in whose place now they are appointed. However, for other benefits, in particular monetary benefits from the date of the appointment order, is the relevant date. Therefore the proper course to do is, to take the select list, and deduct the additional marks given by way of rural weightage to the candidates in the select list. Thereafter prepare a fresh select list on the basis of merit. For the purpose of determining the seniority, the ranking in the revised list is the criteria. Therefore the proper course to do is, to take the select list, and deduct the additional marks given by way of rural weightage to the candidates in the select list. Thereafter prepare a fresh select list on the basis of merit. For the purpose of determining the seniority, the ranking in the revised list is the criteria. For the purpose of granting monetary benefit, it is the date of appointment, by issue of an Appointment order is the criteria. Therefore the successful writ petitioners in the writ petition, leading to the Supreme Court upholding their contention, though they were not in employment, on the day, the person whom they displaced by the order of the Supreme Court, and entered the employment only on the date of their appointment order, for the purpose of seniority, they are deemed to be in employment, on the date of appointment of persons whom they displaced. This in my view is the purport of the Supreme Court Judgment, and that is how the Supreme Court sought to undo the injustice done to them. 14. It is in this background we have to look at the facts of each case. (i) In W.P.No.12690/07, the petitioner is not a person who is involved in any of these litigation. He came into the cadre of First Division Assistant on 07.09.2000. His grievance is that as the respondents herein were all appointed in pursuance of the aforesaid judgment of the Apex Court in the year 2004, they are all juniors to him. But in the seniority list, they are placed above him. Though they were issued appointment order in the year 2004 and the appointment came into effect from the date of the issue of the appointment order, those persons are appointed to those posts which became vacant in the first select list after removing the persons who had occupied the same by virtue of the rural weightage. It was anterior to the petitioner coming into the cadre. So, for the purpose of seniority, though these persons are appointed and issued orders in 2004, they are senior to petitioner, as their seniority is to be computed from the date of the first select list. Therefore, there is no merit in the petition filed by M.K. Jagadish. Accordingly it is dismissed. (ii) The petitioner in W.P.No.11117/09 is the person who approached the Supreme Court and who is successful. Therefore, there is no merit in the petition filed by M.K. Jagadish. Accordingly it is dismissed. (ii) The petitioner in W.P.No.11117/09 is the person who approached the Supreme Court and who is successful. But unfortunately, his seniority is computed from the date of issue of the appointment order in pursuance of the judgment of Supreme Court and held to be junior to persons whose appointment was struck down by the Apex Court. Therefore, W.P.11117/09 is allowed. (iii) Now, a direction is issued to the respondents to keep in mind what is stated above and work out the seniority list and fix his seniority. It is submitted that though the contesting respondents initially claimed rural weightage, even after excluding that, his name continues in the same list. Therefore, taking into consideration the marks the inter-se seniority may be fixed. (iv) In W.P.No.3368-86/10, all these petitioners claim benefit of rural weightage, went out of employment, by virtue of the judgment of the Supreme Court again came back under Rule 4. Therefore, they can never be senior to persons who are appointed in their place purely on the basis of merit and in terms of the Supreme Court order. Therefore, I do not see any merit in these writ petitions, accordingly it is rejected.