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2020 DIGILAW 1723 (KAR)

Savita v. State Of Karnataka

2020-09-04

SURAJ GOVINDARAJ

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JUDGMENT Suraj Govindaraj, J. - The petitioners in both the petitions have sought for certiorari to quash the order of respondent No.2 in the first case bearing No.KSLA/46/ADM-2010 dated 15.06.2010 (Annexure-A) and in the second case bearing No.KSLA/45/ADM-2020 dated 15.06.2010 (Annexure-A) and consequently have sought for a mandamus directing the respondents to confirm the order of appointment of the petitioners and to allow the petitioners to join their post. 2. The facts leading to the case are that: 2.1 The Karnataka State Legal Service Authority (hereinafter referred to as 'the KSLSA', for short) by notification dated 29.01.2007 established six permanent Lok Adalaths sitting at Bengaluru, Belagavi, Dharwad, Kalaburgi, Mangaluru and Mysuru for discharging public utility services as expressly stated in the said notification. Each of the said Lok Adalaths were given a particular jurisdiction consisting of certain districts as named therein. 2.2 After the constitution of the said Permanent Lok Adalath in the 13th meeting of the Executive Committee of the KSLSA convened on 13.04.2007, it was resolved to recruit 12 First Division Assistants (FDA), 12 Second Division Assistants (SDA), 18 Stenographers, 12 Typists and 18 Dalayats. Pursuant thereto, the Member Secretary, KSLSA was authorized to receive applications, scrutinize the same and place it before the Executive Chairman for seeking further directions. 2.3 A notification came to be issued on 23.04.2007 calling for applications giving the particulars of the posts and category wise classification for each post for each district. 2.4 It is pursuant thereto, in the first petition, the petitioner had applied for the post of SDA in S.C. (Woman) category, and in the second petition, the petitioner had applied for the post of FDA in G.M. (Rural) category. 2.5 After receipt of the applications from the candidates, the Selection Committee consisting of the Principal District and Sessions Judge and Chairman of District Legal Services Authority (DLSA), Bengaluru Rural District, Principal District and Sessions Judge and Chairman of DLSA, Bengaluru Urban District and District Judge and Member Secretary, KSLSA, processed the selection of the candidates for recruitment. 2.6 In the meeting of the Selection Committee held on 15.02.2010, 12 candidates were recommended. In the said selection order itself, the names of the candidates who were selected had been published. 2.6 In the meeting of the Selection Committee held on 15.02.2010, 12 candidates were recommended. In the said selection order itself, the names of the candidates who were selected had been published. In the event of any of the selected candidates not joining the post within the time frame prescribed, then the Legal Service Authority should have a backup plan so as to immediately fill the vacancy, rather than going through the entire process once again. Hence an additional list was also prepared which included the names of alternate/backup candidates for those posts in that particular category, namely, if there was one post for S.C. (Woman) and one candidate has been selected, there would be one Additional person for that particular category of S.C. (Woman) who would find her name in the said additional/backup list. If there were two posts for G.M. (others), the selected candidates would find their name in the selection list, and standby candidates would find the name in the additional list, who would be considered only if the selected persons did not join the duties in the particular time frame. 2.7 Pursuant thereto, 12 persons having been selected, 12 candidates have been named in the selection list, and 12 persons were named in the additional list. The Petitioners in both the petitions were not selected candidates but were backup candidates; hence their name was published in the additional/backup list. W.P.No.65753/2010 2.8 The District and Sessions Judge and Member Secretary, KSLSA vide his letter dated 17.05.2010, issued appointment letter to the petitioner in W.P.No.65753/2010 calling upon her to join services at the permanent Lok Adalath established at Dharwad within 15 days from receipt of the order with the documents as mentioned therein. This letter had been issued without verification as to the joining of the persons from and out of the selection list. 2.9 Unknown to the The District and Sessions Judge and Member Secretary, KSLSA, respondents No.5 and 6 who were the selected candidates had already joined the services within the prescribed time period and had completed all the formalities. Respondent No.5 having been reported on 22.03.2010 and respondent No.6 having been reported on 25.03.2010. 2.10 On the issuance of the appointment order dated 17.05.2010, the petitioner is said to have approached the permanent Lok Addlath at Dharwad along with the documents. Respondent No.5 having been reported on 22.03.2010 and respondent No.6 having been reported on 25.03.2010. 2.10 On the issuance of the appointment order dated 17.05.2010, the petitioner is said to have approached the permanent Lok Addlath at Dharwad along with the documents. When it was informed that there was no vacancy, she gave a representation to the Member Secretary with the details of the appointment letter etc. The Member Secretary vide his letter dated 15.06.2010 informed the petitioner about the bonafide mistake which had been caused and rescinded the order of appointment. It is this order which is challenged in W.P.No.65753/2010. W.P.No.65752/2010 2.11 The District and Sessions Judge and Member Secretary, KSLSA vide his letter dated 17.05.2010, issued appointment letter to the petitioner in W.P.No.65752/2010 calling upon her to join services at the permanent Lok Adalath established at Dharwad within 15 days from receipt of the order with the documents as mentioned therein. This letter had been issued without verification as to the joining of the persons from and out of the selection list. 2.12 Unknown to The District and Sessions Judge and Member Secretary, KSLSA, respondents No.5 and 6 who were the selected candidates had already joined the services within the prescribed time period and had completed all the formalities. respondent No.5 had jointed services on 24.03.2010 and respondent No.6 had joined services on 29.03.2010, i.e., within the time period prescribed under the notification. 3. Sri. B. V. Somapur, learned counsel for the petitioners in both the matters submits that, 3.1. once the appointment letter is issued, it is not permissible for the Member Secretary (KSLSA), to cancel the said appointment, be it for any mistake on the part of the appointing authority, or otherwise. 3.2. There is a vested right created in favour of the petitioners on account of the issuance of such appointment order/letter. 3.3. The petitioners ought to have been taken into service in pursuance thereto, instead the Member Secretary had issued the letter dated 15.06.2010 rescinding the orders of appointment and as such he submits that the said orders need to be quashed and the respondents No.2 to 4 be directed to take the petitioners on its rolls. 4. Sri. 3.3. The petitioners ought to have been taken into service in pursuance thereto, instead the Member Secretary had issued the letter dated 15.06.2010 rescinding the orders of appointment and as such he submits that the said orders need to be quashed and the respondents No.2 to 4 be directed to take the petitioners on its rolls. 4. Sri. T. M. Nadaf, learned counsel appearing for the respondents No.2 and 4 would submit that; 4.1 The issuance of appointment letter was purely a bona fide mistake committed by a section officer the KSLSA, against whom action had been initiated by issuing show cause notice, as regards which the said person had accepted his mistake and submitted an apology letter. The Legal Service Authority had accepted the said apology. 4.2 The petitioners cannot claim a vested right on account of the bonafide mistake. 4.3 There are no posts which are vacant and all the posts having been filled up it is not possible for the 2nd respondent to take the petitioners on its rolls. 4.4 Merely because a person's name is found in the selection list, there is no vested right created in favour of the said person for appointment to the post for which a selection list has been prepared. 4.5 Even after the preparation of the selection list, it is for the appointing authority to decide whom to appoint or not on considering various aspects. 4.6 There is no indefeasible right created in favour of such a selected candidate so as to enforce the same by way of filing the writ petition. 4.7 In the present case, the petitioners are not selected, but they have been identified as backup candidates in the additional list. Even if it is assumed that there is right in favour of the petitioners, the right would accrue only in the event of the selected candidates not reporting to work. 4.8 In the present facts and circumstances, when the successful candidates have reported to work and joined services, there was no requirement to consider the additional list. Therefore, the petitioners cannot seek for the relief as sought for by them in the present petitions. 4.9 He relies on the following decisions of the Hon'ble Apex Court to support the above contentions: 4.10 Gujarat State Dy Executive Engineers Association Vs. State of Gujarat,1994 5 LAWS(SC) 78. para 9 of the said judgment is extracted hereunder: "9. Therefore, the petitioners cannot seek for the relief as sought for by them in the present petitions. 4.9 He relies on the following decisions of the Hon'ble Apex Court to support the above contentions: 4.10 Gujarat State Dy Executive Engineers Association Vs. State of Gujarat,1994 5 LAWS(SC) 78. para 9 of the said judgment is extracted hereunder: "9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list, in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service." 4.11 Shankarasan Dash Vs. Union of India,1991 4 LAWS(SC) 55 . Para 7 of the said judgment is extracted hereunder: "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, (1974) 1 SCR 165 ; Miss Neelima Shangla v. State of Haryana and Others, (1986) 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, (1985) 1 SCR 899 ." 4.12 Sunil B. Masur Balakrishna Masur Vs. Railway Recruitment Board, by its Chairman, Konkan Railway Corporation Ltd.,2006 4 LAWS(KAR) 45 . Para 6 of the said judgment is extracted hereunder: "6. However, even assuming that the writ petition is maintainable, we are of the view that the relief claimed by the writ petitioner in the writ petition cannot be granted by this Court. Firstly, the selection by the Railway Recruitment Board on the basis of the Written examination and interview did not confer any right on the appellant for appointment in the Konkan Railway corporation. This was specifically stated in Annexure-B letter dated 22.5.1995. In the absence of any enforceable right this Court, cannot issue a writ of mandamus compelling the second respondent to appoint the petitioner/appellant. Secondly, in the statement of objections filed by the second respondent, it is specifically pleaded that there was no vacancy available for appointing the appellant. It was also stated that there was no possibility of any vacancy arising in the near future. It was further pointed out that the second respondent had not conducted any direct recruitment to the post for which the appellant was selected and recommended by the railway recruitment Board. It was also stated that there was no possibility of any vacancy arising in the near future. It was further pointed out that the second respondent had not conducted any direct recruitment to the post for which the appellant was selected and recommended by the railway recruitment Board. When the second respondent has specifically pleaded that there is no vacancy to accommodate the appellant and when there is no reason for this Court to disbelieve the statements and when the appellant has not placed on record any material to show that the statement is factually wrong, this Court cannot compel the second respondent to offer any appointment to the appellant. Thirdly, the selection of the appellant was in the year 1995. More than 10 years have passed. We do not think that the recommendation made by the Railway recruitment Board for appointment as Apprentice- Mechanic can hold good at this stage." 5. Heard Sri. B. V. Somapur, learned counsel for the petitioners, Sri. T. M. Nadaf, learned counsel for respondents 2 to 4 and Sri. V. S. Kasasurmath, learned HCGP for respondent No.1. Perused the papers. 6. There is no dispute about the fact of the notification being issued for appointment of 12 First Division Assistants, 12 Second Division Assistants, 18 Stenographers, 12 Typists and 18 Dalayats. The authority concerned, namely the Karnataka State Legal Service Authority (KSLSA) had in its meeting considered the applications and selected the persons who qualified for such selection. It is not in dispute that the petitioner's names are not in the selection list. The petitioners were selected as backup candidates in the additional list, who would be considered only in the event of the successful candidate not reporting to work in the given time frame. 7. From the records which have been produced by Sri. T. M. Nadaf along with the objections, which includes the attendance register, it is clear that, all the successful candidates in all the categories have reported and joined the posts for which they are selected for. Such being the case, the member Secretary, KSLSA could not have issued an appointment letter on 17.05.2010 calling upon the petitioners to report to work within a particular time frame or otherwise. However, having done so, the question would be whether such a letter would create a vested right in favour of the petitioner. Such being the case, the member Secretary, KSLSA could not have issued an appointment letter on 17.05.2010 calling upon the petitioners to report to work within a particular time frame or otherwise. However, having done so, the question would be whether such a letter would create a vested right in favour of the petitioner. Having considered this point in the light of the decisions relied upon by Sri. T. M. Nadaf as extracted above, I am of the considered view that, even the said letters would not create any vested right in favour of the petitioners, more particularly the same admittedly has been caused on account of the bonafide mistake by one of the section officers in the KSLSA, as regards whom necessary proceedings were initiated and he has accepted his mistake. 8. The KSLSA having sanctioned only 12 posts and those 12 posts having been filled up, it would not be possible to induct the petitioners who were in the additional list by creating any additional post. In view of the same, the petitioners being only selected in the additional list, it does not create any right in favour of the petitioners. The rescinding of the appointment letter by the Member Secretary, KSLSA vide its letter dated 15.06.2010 cannot be faulted with and as such, the petitioners not having been able to make out any vested right in their favour, the petitions are required to be dismissed and are so dismissed.