Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 279 (KAR)

Shambulingappa v. State Of Karnataka

2019-01-29

B.V.NAGARATHNA, BELLUNKE A.S.

body2019
JUDGMENT : B.V. Nagarathna, J. - Though this writ petition is listed for preliminary hearing with the consent of learned counsel for petitioner and learned Additional Government Advocate for respondents, it is heard finally. 2. The legality and correctness of order dated 07.11.2017 passed in Application No.6419/2017 by the Karnataka Administrative Tribunal, Bengaluru (hereinafter referred to as the 'Tribunal' for the sake of convenience) is assailed by the applicant before the Tribunal. 3. Briefly stated the facts are that petitioner had filed an application pursuant to a Notification regarding recruitment of Range Forest Officer dated 12.09.2012. Online applications were invited for recruitment of sixty-two Range Forest Officers from eligible candidates possessing B.Sc. (Forestry) Science and Engineering Graduation. Petitioner being a B.Sc. Degree holder in Forestry filed his application through online claiming reservation in Category-IIA/KMS (Kannada Medium School). On scrutiny of his application, his name was published in the provisional select list dated 28.07.2014. The name of petitioner was shown at Sl.No.72 and he had secured 149 marks. But, when the final selection list was published on 01.08/09.2014, his name was not found. Further, Official Memorandum dated 08.05.2014 was issued. That out of sixty-two posts, sixty-one posts had been filled. According to the petitioner, out of sixty-two posts, only fifty-six candidates reported for duty and six candidates for various reasons did not report for duty. In fact, according to learned counsel for petitioner, out of sixty-one candidates, fifty-six candidates were eligible and five candidates were declared ineligible. That one of the five candidates declared ineligible was Kumari Divya T.N. belonging to Category-IIA/ woman. It was found that she belongs to Category-IIIA. In the circumstances, after obtaining approval from the Government, by order dated 08.05.2015 one Jayavardhan Talawar was appointed under Category-I (Rural). Therefore, the post for Category-IIA/woman remained unfilled. In the circumstances, petitioner contending to be the next eligible candidate in terms of merit, made a representation stating that he be considered and appointed in the post reserved for Category- IIA/woman as Kumari Divya T.N. could not be accommodated in the said post that she found that she belong to Category-IIIA. Petitioner submitted his representations dated 12.04.2016 and 02.05.2017. In the circumstances, petitioner contending to be the next eligible candidate in terms of merit, made a representation stating that he be considered and appointed in the post reserved for Category- IIA/woman as Kumari Divya T.N. could not be accommodated in the said post that she found that she belong to Category-IIIA. Petitioner submitted his representations dated 12.04.2016 and 02.05.2017. In response to that Communication dated 24.06.2017 was issued by stating that as per Rule 9(2) and (3) of the Karnataka Civil Services (Direct Recruitment by Competitive Examinations and Selection) (General) Rules, 2006 (hereinafter referred to as the 'Rules' for the sake of convenience), petitioner was not eligible to be appointed as against the vacancy which had arisen on account of Kumari Divya T.N. since the name of petitioner was not found either in the main select list or waiting list. The said Communication dated 24.06.2017 (Annexure-A13) was assailed by the petitioner before the Tribunal. The Tribunal after considering the case of the respective parties has rejected the application filed by the petitioner herein. Being aggrieved, the applicant has filed this petition. 4. We have heard learned counsel Sri. Rajshekhar Burji, for petitioner and learned Additional Government Advocate Smt.Veena Hegde, for respondents and perused the material on record. 5. Learned counsel for petitioner submitted that the cause of action for petitioner had arisen subsequent to non-filling up of the post reserved for Category-IIA/woman as Kumari Divya T.N., who had applied in the said category was found not to belong to the said category and that she belongs to Category-IIIA. Therefore, the petitioner made representation seeking conversion of the said post from Category-IIA/woman to Category- IIA/male. That on the basis of his representations, opinion was also obtained by the concerned authorities from the State Government. However, on the basis of the said opinion, no appointment order was issued to petitioner. He contended that on the representations made by petitioner, respondent No.1 issued the Communication dated 24.06.2017 by invoking Rule 9 of the Rules because petitioner's name not being found in the main select list or waiting list. He submitted that obviously with regard to the Category-IIA/woman's post, his name would not have found a place either in provisional list or final selection list. He submitted that obviously with regard to the Category-IIA/woman's post, his name would not have found a place either in provisional list or final selection list. He reiterated that his grievance arose only on account of Category-IIA/woman post remaining vacant and petitioner seeking conversion of the said post to Category-IIA/male as per Government Order dated 22.11.2002 (Annexure-R5), which has been produced by the respondents. He submitted that petitioner has no grievance with regard to the filling up of the post of Category-IIA/male and his only request was to convert Category-IIA/woman post which remained unfilled on account of Kumari Divya T.N. was not being eligible to the said post being converted to Category-IIA/male and the petitioner being considered and appointed to the said post. Learned counsel for petitioner also contended that the Tribunal was not right in reasoning that since the petitioner's name did not figure either in the main select list or additional select list or the waiting list, his case could not be considered. He submitted that when the petitioner was not eligible to be considered in Category-IIA/ male as there were more meritorious candidates he could only be considered for appointment in Category-IIA/woman which remained unfilled after same being converted to Category-IIA/male. Hence, he contended that this Court may interfere in the matter and issue appropriate directions to the respondents for considering the case of petitioner for appointment in Category-IIA/male post after converting Category-IIA/women post as Category-IIA/male. 6. Learned counsel for petitioner further submitted that the post of Range Forest Officer being a higher post and petitioner is entitled to be considered and appointed in the said post. His subsequent appointment to the post of Deputy Forest Officer is wholly irrelevant to the case. He submitted that insofar as Category-IIA/women is concerned, neither a waiting list nor an additional list was published and hence no person of that category would be affected if the post is filled by on conversion and the petitioner is appointed to the said post. 7. Per contra, learned Additional Government Advocate appearing for respondents with reference to the statement of objections filed by her submitted that the impugned order of the Tribunal would not call for any interference. The petitioner is not a meritorious candidate as his name has not figured either in the main select list or waiting select list. 7. Per contra, learned Additional Government Advocate appearing for respondents with reference to the statement of objections filed by her submitted that the impugned order of the Tribunal would not call for any interference. The petitioner is not a meritorious candidate as his name has not figured either in the main select list or waiting select list. Therefore, the petitioner had no right to seek consideration of his case for appointment as Range Forest Officer. That the petitioner had applied for the said post in Category II-A/male. That more meritorious candidates than to the petitioner have been appointed in the said category. Therefore, petitioner cannot have any grievance. The Tribunal was right in holding that when the petitioner does not have requisite merit, his case could not have been considered for appointment. Learned Addl. Government Advocate also submitted that petitioner cannot have any grievance since the petitioner had applied for the post of Deputy Forest Officer and subsequently he has been appointed to the said post. Reliance is placed by learned Additional Government Advocate on the judgment of Hon'ble Supreme Court in the case of Raj Rishi Mehra and others V/s State of Punjab and another, (2013) 12 SCC 243 . She submits that there is no merit in the writ petition and the same may be dismissed. 8. By way of reply, learned counsel for petitioner reiterated his submissions and drew our attention to Government Order dated 22.11.2002 at Annexure-R5, which has been produced by the respondents and drew our attention to Annexure- A6 as well as Annexure-A10, wherein permission is granted for all unfilled post in women's quota to accommodate male candidates and not to leave the said post unfilled. 9. The detailed narration of facts and contentions would not call for reiteration except highlighting the fact that the cause of action for the petitioner to seek appointment in the post of Range Forest Officer arose after Kumari Divya T.N. not being found eligible to be appointed in Category-IIA/woman post. The contention of petitioner is that he being the next meritorious candidate in category IIA/male, the said unfilled post ought to have been offered to him after converting the same as Category-IIA/male. In this regard, reliance is placed by petitioner on Government Order dated 22.11.2002. The said Government Order has been issued clarifying on various reservations in direct recruitment in government service. In this regard, reliance is placed by petitioner on Government Order dated 22.11.2002. The said Government Order has been issued clarifying on various reservations in direct recruitment in government service. Paragraph No.7 of the Government Order states that "if the eligible candidate is not available for women reservation, such post should be filled with the men candidates of the same category". It is admitted that clause-7 referred to above has not been subject to any amendment or change. Reference made by learned Additional Government Advocate on the waiting list is of no assistance as there was no waiting list or additional list published in respect of Category- IIA/woman post. 10. In the circumstances, the right of petitioner to seek unfilled vacant post in Category13 IIA/woman for a male candidate arose after the same became unfilled. That Kumari Divya T.N. who had applied in the said category, was found not to belong to the said category and that she belongs to Category-IIIA. Therefore, petitioner contended that instead of keeping that post vacant, the same could be converted into Category-IIA/male and petitioner being the next meritorious candidate after filling up of all the post meant for Category- IIA/male had to be considered to the said post. Admittedly, petitioner is the next meritorious candidate available in Category-IIA/male and on account of the non-availability of Category- IIA/women post and applying the Government Order dated 22.11.2002, the said post had to be converted to Category-IIA/male and offered to the petitioner. Despite the petitioner making representations in that regard, the respondents authorities have erroneously referred to Rule 9 of the Rules which is not at all applicable in the instant case. 11. Rule 9 of the Rules deals with a case where the candidates name is included in the select list made available by the Commission under sub-rule (3) of Rule 8 who could be appointed by the Appointing Authority in the order in which the name appears in the select list, after satisfying itself about the suitability and physical fitness of each such candidate in accordance with the provisions of the Karnataka Civil Services (General Recruitment) Rules, 1977. Sub-rule (2) of Rule 9 provides that the inclusion of the name of the candidate in any select list published under sub-clause (3) of Rule 8 shall not confer any right of appointment to the candidate. Sub-rule (2) of Rule 9 provides that the inclusion of the name of the candidate in any select list published under sub-clause (3) of Rule 8 shall not confer any right of appointment to the candidate. But sub-rule (1) and (2) of Rule 9 does not at all apply in the instant case as the petitioner is not seeking any consideration of his case for appointment as Range Forest Officer on the basis of his name being found in the final select list or additional list which is wholly irrelevant as far as the present case is concerned. The Tribunal has also been swayed by the said argument and the Communication dated 24.06.2017 issued by the respondents-authorities. 12. It is reiterated that the cause of action for petitioner arose after Kumari Divya T.N. not being appointed to Category-IIA/ woman post and the said post remaining vacant and the Government Order referred to above being made applicable to the case of the petitioner. Admittedly, petitioner is presently the most meritorious candidate in Category-IIA/male and on applicability of the said Government Order dated 22.11.2002, his case had to be considered and appointment of the petitioner had to be made after converting the unfilled Category-IIA/woman post to Category-IIA/male. In the circumstances, we quash the order of the Tribunal and hold that the petitioner is entitled to be appointed to the post of Category-IIA/women on the same being converted as Category-IIA/male in terms of the Government Order dated 22.11.2002. Consequently, Communication dated 24.06.2007 (Annexure-A13) issued by the first respondent is also quashed. 13. The respondents are directed to issue appointment letter to the petitioner to the post of Range Forest Officer within a period of two weeks from the date of receipt of certified copy of this order. Writ petition is allowed in the aforesaid terms.