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Karnataka High Court · body

2019 DIGILAW 2053 (KAR)

Mahantesh v. State of Karnataka

2019-09-26

S.G.PANDIT

body2019
ORDER : 1. Petitioner is before this Court under Articles 226 and 227 of the Constitution of India praying for the following reliefs: (a) Issue a writ of Certiorari quashing the resolution dated 20.03.2013 appointing the respondent No. 8 passed by the Respondents No.6 and 7 vide Annexure-D and approval order dated 13.01.2015 bearing No. vide Annexure-L passed by respondent No.4 in the interest of justice and equity. (b) Direct the respondents 1 to 7 to appoint the petitioner as per the notification dated 28.01.2013 vide Annexure-C in the place of respondent No.8 in the interest of justice and equity. 2. The petitioner states that he is the resident of Murgod, Savadatti Taluk, Belagavi District. He possesses the qualification of Bachelor of Social Work and Master of Social Work. The petitioner claims that he has secured 70% marks in degree and 62% marks in Post Graduate M.S.W. 6th respondent/Grama Panchayat issued advertisement calling applications from the eligible persons to fill up the vacant post of Bill Collector-cum-Clerk Post. The last date for submitting application was 10.02.2013. The qualification prescribed was Degree along with Computer knowledge. The petitioner being qualified to apply for the post of Clerk-cum-Bill Collector applied for the said post in pursuance of the above advertisement. The petitioner was called for interview along with 12 others for the post of Clerk-cum-Bill Collector. Interview was conducted by Grama Panchayat members on 20.03.2013. After interview, a resolution was passed recommending appointment of one Sreeshail Mallikarjun Malkajanavar and respondent No.8 Sri.Basavaraj Babu Toragal. The resolution was forwarded to the 4th respondent/Zilla Panchayat. The 4th respondent/Zilla Panchayat by letter dated 13.01.2015 approved the appointment of respondent No.8 as well as others. Aggrieved by non-selection of the petitioner and appointment of 8th respondent to the post of Clerk-cum-Bill Collector, the petitioner is before this Court in this writ petition. 3. On issuance of notice, the respondents have appeared. Respondents No.6 and 7 have filed statement of objections stating that the recruitment was made in accordance with rules and regulations. It is stated that 13 candidates attended the interview including the petitioner. The selection and appointments have been made on the basis of the marks obtained in the qualifying examination as well as marks obtained in the interview. 4. Heard the learned counsel for the parties. Perused the materials on record. 5. It is stated that 13 candidates attended the interview including the petitioner. The selection and appointments have been made on the basis of the marks obtained in the qualifying examination as well as marks obtained in the interview. 4. Heard the learned counsel for the parties. Perused the materials on record. 5. Learned counsel for the petitioner contends that the entire selection process is wholly illegal. In that, respondents No.6 and 7 could not have conducted the interview and ought to have made selection and appointment based only on the marks obtained in the qualifying examinations. The conducting of interview is not contemplated and hence the selection and appointment of respondent No.8 is bad in law. He further submits that the petitioner is meritorious than the 8th respondent. The petitioner has secured 70% marks in Degree whereas 8th respondent has secured only 54% marks in Degree. Learned counsel refers to O.M. dated 04.01.2008 and submits that interview could not have been conducted as the same is not contemplated under the said O.M. Learned counsel for the petitioner relies upon the decision of the Hon'ble Supreme Court reported in M.S. Patil vs. Gulbarga University and Others, (2010) 10 SCC 63 to contend that even after 171/2 years, the Supreme Court has set aside the illegal appointment. Relying on the said decision, the learned counsel submits that in the case on hand also, the appointment of respondent No.8 requires to be set aside. 6. Per contra, learned counsel for respondents No.6 and 7 submits that the recruitment process and appointment of 8th respondent is made in accordance with the procedure and the Government guidelines in respect of the recruitment of staff of the Panchayat. It is further contended that the selections have been made on the basis of marks obtained in the qualifying examination as well as the marks obtained in the interview. 7. Learned counsel appearing for respondent No.8 submits that the writ petition is liable to be rejected only on the ground of delay and laches. He submits that the resolution was passed recommending appointment on 20.03.2013 and appointment was approved by the 4th respondent on 13.01.2015. But, the writ petition is filed challenging the appointment on 17.10.2016 nearly three years after the resolution of the Panchayat and 11/2 years after the approval by the 4th respondent/Zilla Panchayat. He submits that the resolution was passed recommending appointment on 20.03.2013 and appointment was approved by the 4th respondent on 13.01.2015. But, the writ petition is filed challenging the appointment on 17.10.2016 nearly three years after the resolution of the Panchayat and 11/2 years after the approval by the 4th respondent/Zilla Panchayat. More over, the petitioner participated in the selection process and thereafter when he was not selected he is before this Court. Having participated in the selection process, the petitioner could not have challenged the selection process. In that regard, learned counsel relies upon the decision of the Hon'ble Apex Court reported in Ramesh Chandra Shah and Others vs. Anil Joshi and Others, (2013) 11 SCC 309 , Manish Kumarshahi vs. State of Bihar and Others, (2010) 12 SCC 576 and D. Sarojakumari vs. R. Helen Thilakom and Others, (2017) 9 SCC 478 . 8. Section 112 and 113 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short' the Act) provides for Staffing pattern and schedule of employees and appointment and control of employees. Section 113(1) reads as follows: "113. Appointment and control of employees: (1) Subject to the provisions of Sections 111 and 112 the Grama Panchayat may, with the prior approval of the Chief Executive Officer appoint other employees of the Grama Panchayat and pay their salaries from the Grama Panchayat Fund: Provided that in making appointments the appointing authority shall reserve posts for the Scheduled Castes, the Scheduled Tribes and other socially and educationally backward classes of citizens in the same manner and to the same extent as is applicable for the recruitment to posts in the State Civil Services." The above provision subject to Sections 111 and 112 provides for appointment of employees of Grama Panchayat with the prior approval of Chief Executive Officer of the Zilla Panchayat. The 6th respondent issued paper advertisement as per Annexure-C calling applications from the eligible persons to fill up the vacant posts of Clerk-cum-Bill Collector. O.M. dated 04.01.2008 issued by the Government in Rural Development and Panchayat Raj Department provides for staffing pattern and broad guideline for recruitment. The relevant portion reads as follows: IMAGE 9. The above Official Memorandum provides for recruitment by publishing the details of the post in local newspaper by following the roster. O.M. dated 04.01.2008 issued by the Government in Rural Development and Panchayat Raj Department provides for staffing pattern and broad guideline for recruitment. The relevant portion reads as follows: IMAGE 9. The above Official Memorandum provides for recruitment by publishing the details of the post in local newspaper by following the roster. The appointment shall be made only after approval from the Chief Executive Officer as provided under Section 112 of the Act. 10. In pursuance of the above advertisement, 13 persons participated in the interview including the petitioner. The petitioner with his open eyes participated in the selection process. Having participated in the selection process and in the interview on 20.03.2013, more than three years later, the petitioner filed present writ petition questioning the resolution as well as approval of appointment of the 8th respondent. Having participated in the selection process, the petitioner lost his right to question the process of selection and conducting of interview. Moreover, it is not brought to the notice of this Court by the parties to the writ petition, the procedure to be followed in the recruitment process of staff of the Panchayat, except Annexure-C. The Official Memorandum which is referred to above would only requires advertisement in local newspaper and following of the roster with regard to reservation. It is settled law that wherever there is no procedure laid down for selection and appointment, the Selecting Authority can adopt its own procedure, which shall be reasonable and fair. In the instant case also, the Panchayat in the absence of specific procedure for recruitment of Panchayat Staff, it adopted and decided to appoint Clerk-cum-Bill Collector by conducting interview. In the interview respondent No.8 scored more marks. When the selection list was prepared based on the qualifying and interview marks, respondent No.8 ranked above the petitioner. In that circumstances, the petitioner cannot contend that he is more meritorious than respondent No.8. Moreover, the petitioner participated in the interview, having failed to qualify in the interview, the petitioner is questioning the conduct of interview. A person who takes part in the process of selection with his open eyes, subsequently cannot turn around and question the same. The Hon'ble Apex Court in MANISHKUMAR SHAHI referred to supra at paragraph 16 held as follows: "16. A person who takes part in the process of selection with his open eyes, subsequently cannot turn around and question the same. The Hon'ble Apex Court in MANISHKUMAR SHAHI referred to supra at paragraph 16 held as follows: "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal vs. State of J&K, Marripati Nagaraja vs. Govt. of A.P. and Dhananjay Malik vs. State of Uttaranchal, Amlan Jyoti Borooah vs. State of Assam and K.A. Nagamani vs. Indian Airlines." 11. Admittedly, the writ petition is filed on 17.10.2016 questioning the resolution dated 20.03.2013 and approval of appointment of 8th respondent dated 13.01.2015. There is inordinate delay in approaching this Court. The explanation of the petitioner that the petitioner had made an application under the RTI and there was delay in furnishing the information cannot be accepted, in the facts and circumstances of the present case. As could be seen from Annexure-M, application filed under RTI, the information sought are the qualification, name and address of the appointee and the procedure followed in the process of appointment. But, the petitioner was possessing the copy of resolution and copy of approval of appointment. In a matter of challenge to appointments, the aggrieved person shall approach the Court immediately. Even a short delay would disentitle the petitioner to seek relief. As on this day, respondent No.8 is working for nearly five years. 12. The Hon'ble Supreme Court in the case of P.S. Sadashivaswamy vs. State of Tamil Nadu, (1975) 1 SCC 152 has held as follows: 2........................... Even a short delay would disentitle the petitioner to seek relief. As on this day, respondent No.8 is working for nearly five years. 12. The Hon'ble Supreme Court in the case of P.S. Sadashivaswamy vs. State of Tamil Nadu, (1975) 1 SCC 152 has held as follows: 2........................... "It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner' spetition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal." 13. The petitioner relied on the decision of the Hon'ble Apex Court in M.S. PATIL (supra). The said decision would in no way assist the petitioner, as the petitioner therein was continued in service even though his appointment was illegal appointment, by virtue of interim order passed by the Courts and helped by authorities concerned in the University. In those circumstances, the appointment of the petitioner therein was interfered with. 14. For the reasons recorded above, the writ petition deserves to be dismissed and the same is accordingly dismissed.