Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 67 (KAR)

Jyoti Ratnakar Vernekar v. Konkan Railway Corporation Ltd.

2017-01-09

R.S.CHAUHAN, SREENIVAS HARISH KUMAR

body2017
JUDGMENT : Raghvendra S. Chauhan, J. Ms. Jyoti, the appellant, has challenged the legality of the order dated 10.12.2014, passed by a learned single Judge, in Writ Petition No. 111445/2014, whereby the learned single Judge has dismissed the writ petition filed by the appellant. 2. This case has a rather checkered history' which is as under:- The Konkan Railway Corporation, the respondent No. 1, had acquired large chunks of s land in the States of Maharashtra, Goa, Karnataka, and Kerala for the purpose of constructing railway tracks through these four States. While acquiring the lands, on 16.07.1998, it had formulated a policy in order to protect the land losers from financial crisis. According to the policy, the first preference for appointing a person would be given to the temporary employees of construction phase. After the absorption of such temporary employees, "the first priority would be given to the children of the land losers subject to their eligibility and suitability. If vacancies are still left over, open market recruitment is resorted to, and in this also, preference is given to land losers, other things being equal." The policy further stipulated that "only one candidate per acquisition will be eligible to apply provided no employment to another is already given." The said policy was subsequently reiterated on 06.05.2008. It was clearly held out that "As per the extant policy, only one candidate was considered for recruitment from each land loser household." On 30.10.2009, the Corporation issued a notification inviting applications for the post of Assistant Loco Pilot. In the said notification, in the category of "Eligibility Criteria", the Corporation clearly stated that "Landlosers (Self/Son/Spouse/Unmarried daughters/Grandsons/Unmarried Grand-daughters only) whose land has been acquired for Konkan Railway Corporation Project are eligible. Only one candidate per family per land acquisition are eligible. Any person already employed in KRCL, others need not apply and are not eligible." However, in the column indicating "documents which should be attached with the application", it was clearly stipulated that "a 'No Objection Certificate' ('NOC', for short) from all other joint landlosers" would have to be submitted by a candidate. Since the appellant was eager to apply for the said post, she filed her application on 30.10.2009 itself. She was required to submit the document mentioned herein above by 19.11.2010. However, she failed to submit the NOC till 21.01.2011. Since the appellant was eager to apply for the said post, she filed her application on 30.10.2009 itself. She was required to submit the document mentioned herein above by 19.11.2010. However, she failed to submit the NOC till 21.01.2011. Therefore, by order dated 10.02.2011, her application was rejected inter aha on the ground that the required NOC had not been submitted prior to the cut-off date of 19.11.2010. Since the appellant was aggrieved by the order dated 10.02.2011, she filed a writ petition, namely Writ Petition No. 64803/2011, before this Court. In the said writ petition, she also challenged condition No. 5 contained in the instructions issued to the candidates who were called for the interview. Condition No. 5 also contained the requirement that a NOC has to be submitted by the candidate at the time of the interview. However, at the time of arguing the case, the appellant choose not to press her challenge to condition No. 5 contained in the instructions. The appellant choose to confine her challenge only to the letter dated 10.02.2011. Therefore, by order dated 10th October, 2012, a learned single Judge of this Court directed the Corporation to consider the appellant's application as though the document had been submitted by her prior to the cut-off date of 19.11.2011, and to consider her candidature in accordance with law. In compliance of the directions issued by the learned single Judge, the Corporation considered the applicant's candidature. However, by order dated 14.12.2012, the Corporation informed the appellant that her candidature could not be considered unless and until she produced a NOC from all joint landlosers. It is pertinent to point out that during the pendency of Writ Petition No. 64803/2011, the Corporation, on 17.08.2012, had again amended its policy with regard to the appointment of a member of landloser family. According to the amended policy, dated 17.08.2012, the requirement of seeking NOC from all the joint landlosers was given a go-bye. The amended policy also declared that the said policy would be applicable only prospectively and not retrospectively. According to the amended policy, dated 17.08.2012, the requirement of seeking NOC from all the joint landlosers was given a go-bye. The amended policy also declared that the said policy would be applicable only prospectively and not retrospectively. Since the appellant was aggrieved by the letter dated 14.12.2012, asking her to submit a NOC, since she was still aggrieved by condition No. 5 contained in the instructions mentioned herein above, since she was aggrieved by the prospective application of the amended policy, dated 17.08.2012, she filed a second writ petition before this Court, namely Writ Petition No. 111445/2014. However, by order dated 10th October, 2014, the learned single Judge has dismissed the said writ petition. Hence, this appeal before this Court. 3. Mr. Ananth R. Hegde, the learned counsel for the appellant, has raised the following contentions before this Court:- Firstly, that since the policy dated 16.07.1998 and the amended policy dated 06.05.2008 did not require production of any NOC. Therefore, the requirement of submission of a NOC contained in the notification contained in condition No. 5 of the instructions issued by the Corporation, are clearly beyond the policy dated 16.07.1998 and 06.05.2008, Secondly, since there is no such requirement contained in the policy, as it existed at the time of filing of the application, therefore, the insistence that a NOC needs to be produced, by letter dated 14.12.2012, is an illegal requirement being imposed on the appellant. Thirdly, these two aspects have not been dealt with by the learned single Judge, in the impugned order dated 10.12.2014. The learned single Judge has confined his entire discussion with regard to the amended policy dated 17.08.2012, and specifically with regard to its prospective application. Therefore, the impugned order deserves to be interfered with. 4. On the other hand, Mr. G.K. Hiregoudar, the learned counsel for the Corporation, submits that the contentions being raised presently by the learned counsel for the appellant, with regard to condition No. 5 contained in the instructions, and with regard to letter dated 14.12.2012 were never raised before the learned single Judge. The controversy that was raised before the learned single Judge was limited to the non-applicability of the amended policy dated 17.08.2012 retrospectively. Thus, the learned single Judge was justified in confining his decision only to the contention and the controversy raised before him. The controversy that was raised before the learned single Judge was limited to the non-applicability of the amended policy dated 17.08.2012 retrospectively. Thus, the learned single Judge was justified in confining his decision only to the contention and the controversy raised before him. Since the retrospective application of the amended policy would have created certain complications, the complications which were noted by the learned single Judge, the learned single Judge was justified in upholding the legality of the amended policy. 5. This Court has asked a pointed query from the learned counsel for the appellant, whether any contention with regard to the legality of condition No. 5 in the instructions, and any contention with regard to the legality of the letter dated 14.12.2012 was ever raised before the learned single Judge or not? To this query, the learned counsel has given a vague response that he does not remember whether any contentions with regard to these aspects were raised before the learned single Judge. Interestingly, even in the body of the appeal, an omnibus statement has been made that these two aspects have been ignored by the learned single Judge". There is no specific pleading that the contentions with regard to the legality of condition No. 5 contained in the instructions, or with regard to the legality of the letter dated 14.12.2012, were, indeed, argued before the learned single Judge. 6. Considering the fact that these contentions were never raised before the learned single Judge, the only issue which is before this Court is, whether the opinion of the learned single Judge with regard to the retrospective application of the amended policy, dated 17.08.2012, is legally valid or not? For, after all, this was the only controversy and the contention which was raised before the learned single Judge. 7. As far as this issue is concerned, the learned single Judge has opined that considering the difficulties which had arisen because of the requirement of NOC, the Corporation was well justified in giving a go-bye to the said requirement while amending the policy on 17.08.2012. Moreover, if the policy were to be given a retrospective effect, it would create a hoard of complications: for, the previous appointments would need to be reopened, and would need to be re-decided by the Corporation. These two observations of the learned single Judge cannot be faulted by this Court. 8. Moreover, if the policy were to be given a retrospective effect, it would create a hoard of complications: for, the previous appointments would need to be reopened, and would need to be re-decided by the Corporation. These two observations of the learned single Judge cannot be faulted by this Court. 8. It is keeping in mind the complications, which may arise if policy were given retrospective effect, the Corporation was justified in clearly proclaiming that the amended policy shall have only prospective effect, and not retrospective one. Therefore, the amended policy, dated 17.08.2012, cannot be held to be illegal. Thus, the conclusion drawn by the learned single Judge is legally valid. 9. Still keeping in mind the interest of the appellant, the learned singe Judge has also directed the Corporation to consider the case of the appellant, if and when, the future vacancies arise under the modified policy dated 17.08.2012. To our mind, by giving such a direction to the Corporation, the learned single Judge has protected the interest of the appellant even with regard to the future vacancies. Thus, the learned single Judge has passed not only a legally valid order, but also a very just and reasonable order. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. This appeal, being devoid of merit, is hereby dismissed.