IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITION NOS.54009-54010/2017 (S-KAT) C/W WRIT PETITION NOS.33396-33397/2018 (S-KAT) IN W.P. NOs.54009-54010 OF 2017 BETWEEN 1. MR. SHIVANNA T S/O LATE THIMAPPA AGED ABOUT 53 YEARS, ASSISTANT ENGINEER O/O EXECUTIVE ENGINEER PRR DIVISION, BENGLAURU 560 001 R/AT NO.30, 23RD CROSS, 2ND BLOCK, AKSHAYA NAGAR, RM NAGAR POST BANGALORE 560 026.
2. MR. D. RAVI S/O H DASAIAH ASSISTANT ENGINEER AGED ABOUT 46 YEARS, O/O ASSISTANT EXECUTIVE ENGINEER BBMP, JAYANAGAR DIVISION BENGALURU 560 078.
R/AT NO."U" 27, ANJENAYA BLOCK, LINK ROAD, SHESHADRIPURAM BENGALURU 560 020.
... PETITIONERS (BY SRI. A. S. PONNANNA, SENIOR COUNSEL FOR SMT. LEELA P DEVADIGA, ADVOCATE) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, VIKASA SOUDHA, BENGALURU 560 001.
2. THE SECRETARY THE KARNATAKA PUBLIC SERVICE COMMISSION, UDYOGA SOUDHA, BENGALURU 560 001.
3. MR. PUTTASWAMY AGE NOT KNOWN FATHER’S NAME NOT KNOWN NO.GF-2, EMERALD PARK APARTMENT SBI OFFICERS COLONY, BASAVESHWARANAGAR, BENGALURU 560 079.
4. MR. R. PRASAHANTH AGE NOT KNOWN FATHER’S NAME NOT KNOWN NO.62, 10TH CROSS, WEST OF CHORD ROAD, 2ND STAGE, MAHALAKSHMIPURAM, BENGALURU 560 086.
5. MR. BALACHANDRA C.S AGE NOT KNOWN FATHER’S NAME NOT KNOWN NO.5 "A" 1ST BLOCK, 19TH D MAIN ROAD, RAJAJINAGAR, BENGALURU 560 086.
6. MR. MUNIMARIYAPPA A C S/O LATE CHOWDAPPA AGED ABOUT 53 YEARS ASSISTANT ENGINEER O/O EXECUTIVE ENGINEER PRR DIVISION, BANGALORE 560 001. R/AT NO.84, GANDALAHALLY VILLAGE AND POST, VIA DALASANNUR SRINIVASAPURA TALUK, KOLAR DISTRICT 563126.
... RESPONDENTS (BY SRI. I. THARANATH POOJARY, AGA FOR R1; SRI. REUBEN JACOB, ADVOCATE FOR R2;
VIDE ORDER DATED 30/07/2018 NOTICE TO R3 TO R6 DISPENSED WITH) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:14.09.2017 IN APPLICATION NO.5448-5450/2016 BEFORE THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BANGALORE VIDE ANNEXURE-A AND ETC.
IN W.P. NOs.33396-33397 OF 2018 BETWEEN 1. SRI. VENKATESH. G S/O CHELLAGERATAIAH, AGED ABOUT 46 YEARS, WORKING AS ASSISTANT ENGINEER (CIVIL) OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, NO.1, PWD SUB-DIVISION, NAZERABAD, MYSORE AND RESIDING AT 2ND CROSS BHOVI COLONY, NEHARU NAGAR, MANDYA-571401.
2. SRI. M. L. SHANKARAPPA AGED ABOUT 50 YEARS, S/O M.G.LINGAIAH, WORKING AS ASSISTANT ENGINEER (CIVIL), NO.6, BUILDING, SUB -DIVISION, PUBLIC WORKS DEPARTMENT, K.R.CIRCLE, BANGALORE-560001.
... PETITIONERS (BY SRI V. R. SARATHY, ADVOCATE) AND 1. THE STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF PUBLIC WORKS DEPARTMENT, PORT AND INLAND WATER TRANSPORT, VIKASA SOUDHA, BANGALORE-560001.
2. THE KARNATAKA PUBLIC SERVICE COMMISSION REP. BY ITS SECRETARY, PARK HOUSE, RESIDENCY PARK ROAD, BANGALORE-560001.
3. SRI. AMRUTH KUMAR C. R. MAJOR, C/O SRI MOHAN RAJ, NO.78/8, BGML HOSPITAL COMPOUND, CHAMPIONREEP K.G.F.
KOLAR DISTRICT-563117.
... RESPONDENTS (BY SRI. I. THARANATH POOJARY, AGA) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 10.4.2018 MADE IN A.NO. 6281 AND 6292/2016 VIDE ANNEX-A PASSED BY THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AND TO ALLOW THE APPLICATION FILED BEFORE THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AS PRYAED FOR AND ETC.
THESE WRIT PETITIONS COMING ON FOR FINAL HEARING THIS DAY, DEVDAS J, MADE THE FOLLOWING:
ORDER The petitioners in these two batch of writ petitions are before this Court assailing the order dated 14.09.2017, passed by the Karnataka State Administrative Tribunal (hereinafter referred to as ‘the Tribunal’ for short), rejecting the applications.
2. The petitioners were initially appointed as Assistant Engineers and Junior Engineers, on contract basis by virtue of recruitment notification dated 10.04.2003, issued by the Department of Public Works. It is pertinent to note that though the notification dated 10.04.2003, was issued to fill up backlog vacancies of Assistant Engineers and Junior Engineer, instead of regular recruitment, the recruitment was made on contract basis. Thereafter, the petitioners were regularized as Assistant Engineers in accordance with the Karnataka Civil Services (Absorption of persons appointed on contract basis against backlog vacancies in the category of the post of Assistant Engineers and Junior Engineers in the Department of Public Works Engineering, Water Resources and Rural Development and Panchayath Raj) (Special) Rules, 2005 (for short ‘Rules, 2005’). However, the absorption of the petitioners and other persons were challenged before this Court on the ground that the absorption would amount to backdoor entry and persons who were qualified were not given opportunity.
3. The validity of the Rules, 2005, itself were under challenge and the said Rules were quashed and set aside by the Tribunal. When the order of the Tribunal was sought to be challenged before this Court, this Court by order dated 13.07.2012, in a batch of writ petitions bearing Nos.15314-15378 & 15739- 15750/2009 and connected matters upheld the order of the Tribunal, quashing the Rules, 2005. That decision was taken up before the Hon’ble Supreme Court and the Hon’ble Supreme Court, in Civil Appeal Nos.9337- 9352/2015 and connected matters, by order dated 04.11.2015, upheld the quashment of the Rules, 2005. However, several directions were issued by the Hon’ble Supreme Court noticing the fact that the petitioners have served for more than 11/12 years and at that stage if they are removed from service, the same would cause undue hardship. Therefore, it was directed that the State Government is required to issue a fresh notification calling for recruitment of filling up of the backlog vacancies. However, the same was required to be in compliance with the eligibility and other criteria which were prescribed in Rules, 2001. The Hon’ble Supreme Court further directed that in the selection process, such of the Assistant Engineers and Junior Engineers appointed on contract basis, who do not make the grade, would naturally have to make way in favour of those selected under the directions issued by this Court at Clause (ii) and (iii) specified therein. It was also directed that the erstwhile employees appointed on contract basis, who do not make the grade in the selection, shall be accommodated by the State Government by creating supernumerary posts.
4. Subsequent thereto, the State Government directed the Karnataka Public Service Commission (hereinafter referred to as the ‘KPSC’ for short), to issue recruitment notification and the KPSC issued notification dated 29.01.2016. After selection process, a select list was announced by the KPSC and names of the petitioners were not found in the select list. Therefore, the petitioners approached the Tribunal once again and during the course of the proceedings, the petitioners were permitted to make a representation to the Government seeking reasons for non-inclusion of their names in the select list. The State Government, by endorsement dated 28.05.2016, clarified that the petitioners do not possess required qualification i.e., B.E.(Civil/Mechanical). It was pointed out that the petitioners were either B.E. (Civil Environmental Engineering) or B.E. (Environmental Engineering) and therefore, they were not selected by the KPSC. Consequently, the State Government rejected the representations on the aforesaid grounds. The Tribunal, pursuant to the endorsement issued by the Government, proceeded to dismiss the applications of the petitioners and therefore the petitioners are before this Court.
5. Sri. A.S.Ponnanna, learned Senior Counsel appearing for the petitioners would submit that the KPSC did not assign any reasons for non-selection of the petitioners. However, when a representation was made by the petitioners herein, the State Government issued clarification that the petitioners do not have the required qualification as prescribed in the Rules, 2001. Learned Senior Counsel has drawn the attention of this Court to the Rules, 2001, wherein the word “qualification” is defined as “qualification” means the minimum qualification for recruitment to any service or post prescribed in the rules of recruitment specially made in respect of that service or post or in any other rules made or deemed to have been made under Karnataka State Civil Services Act, 1978 (Karnataka Act 14 of 1990).
6. The learned Senior Counsel submits that this is the very same qualification that was prescribed in the year 2003, under Rules, 2001, which were required to be followed by the KPSC, while making fresh recruitment. It is submitted that under same qualification that was prescribed in the Rules, 2001, the petitioners were selected and subsequently while, absorbing the petitioners in the year 2005, the petitioners were absorbed with the same qualification. In the light of the specific directions issued by the Hon’ble Supreme Court, qualification prescribed in Rules, 2001, have to be followed by the State Government. At this stage, while fresh recruitment is made, the KPSC could not have made a distinction and kept the petitioners out of the ambit on the ground that they do not possess the requisite qualification.
7. Learned Senior Counsel further submits that even otherwise, the Hon’ble Supreme Court has directed the State Government that if the petitioners are not selected in the fresh recruitment, they will continue to serve in the supernumerary posts, to be created by the State Government, but with the very same qualification. In other words, it is submitted that with the qualification by which the petitioners were recruited in the year 2003, they have continued to serve in the State Government, in the very same posts for the past 18 years. Therefore, the distinction sought to be drawn at this stage would be illegal and impermissible. It is further submitted that even in the notification of the year 2016, the very same qualification are prescribed and it does not make any specific distinction that a person who has qualification of B.E.(Civil/Mechanical) only and “no other qualification or related qualification will be permitted”.
8. Learned Senior Counsel has also brought to the notice of this Court that even in the recruitment which took place in the year 2015, the KPSC has made recruitment for the very same posts of Assistant Engineers and Junior Engineers, where qualification prescribed was B.E.(Civil/Mechanical) and persons who had qualification of B.E. Civil (Transportation Engineering) and B.E. Civil (Environmental Engineering) have been selected and they have been working in the same Department.
9. Sri. V.R.Sarathy, learned counsel appearing for the petitioners in the connected writ petitions also supports the contention of the learned Senior Counsel.
10. Per contra, Sri. I. Tharanath Poojary, learned Additional Government Advocate seeks to support the endorsement issued by the State Government and the selection made by the KPSC. Learned Additional Government Advocate submits that though the petitioners were selected in the year 2003, it was on contract basis and the prescription was not as provided in the Rules, 2001. Learned Additional Government Advocate further submits that some of the candidates who were not selected approached the Hon’ble Supreme Court seeking a clarification on the aspect of equivalence and the Hon’ble Supreme Court in Civil Appeal Nos.13249-13283/2015, by order dated 25.02.2016, dismissed the appeals.
11. It is moreover submitted by the learned Additional Government Advocate that the process of selection has been completed in the year 2016 and the clock cannot be put back at this length of time. It is submitted that since the petitioners were appointed by creating supernumerary posts, by notification dated 28.07.2017, the petitioners cannot nurse any further grievance.
12. Sri. Reuben Jacob, learned counsel appearing for the respondent-KPSC, seeks to justify the selection made by the KPSC. Learned counsel submits that the KPSC went strictly by qualification prescribed in the Rules, 2001.
13. The learned counsel draws the attention of this Court to the qualification as prescribed in the Karnataka Public Works and Electricity Secretariat Cadre and Recruitment Rules, 1988, wherein for the post of Assistant Engineer, by direct recruitment, a person is required to have a Degree in Civil Engineering or Mechanical Engineering, depending upon the requirements, as the case may be. It is therefore submitted that when the rules are very clear that a person is qualified to be appointed as Assistant Engineer or Junior Engineer only if he holds a Degree in Civil Engineering or Mechanical Engineering, any other Degree in variance with the prescribed ‘Civil Engineering/Mechanical Engineering’ would not entitle a person to be selected for the post of Assistant Engineer, as prescribed in the Rules, 1988. It is therefore submitted that the KPSC, has followed the relevant Rules. Further, it is submitted that when several such representations were made to the KPSC, the KPSC sought for clarification from the State Government since, the State Government alone is authorized to prescribe the equivalence. It is submitted that the State Government communicated to the KPSC that it is required to follow whatever is provided in the rules and the State Government at this stage will not prescribe any equivalence.
14. On the aspect of the recruitment made by the KPSC, in the year 2015, raised by the learned Senior Counsel Sri. A.S.Ponnanna, Sri. Reuben Jacob, learned counsel appearing for the KPSC submitted that he has no instructions as to the latest action taken by the KPSC on the selection, which is said to have been made by the KPSC with the qualification of B.E. Civil (Transportation Engineering) or B.E. Civil (Environmental Engineering).
15. Heard Sri A.S.Ponnanna, learned Senior Counsel and Sri V.R.Sarathy, learned Counsel for the petitioners, Sri I.Tharanath Poojary, learned AGA and Sri Reuben Jacob, learned Counsel for KPSC. We have perused the writ papers.
16. The Hon’ble Supreme Court, while upholding the quashment of Rules, 2005, specifically directed the State Government to follow the directions issued by this Court in its order dated 13.07.2012 in W.P. Nos.15314- 15378 & 15739-15750/2009 and connected matters. It would be relevant to extract the directions issued by this Court, which reads as follows:
ORDER “(1) All these writ petitions challenging the impugned order passed by the Karnataka Administrative Tribunal in application No.6258/2003 and other connected matters dated 25th day of May, 2009, are dismissed.
(2) The order passed by the Karnataka Administrative Tribunal declaring that the Karnataka Civil Services (Absorption of persons appointed on contract basis against backlog vacancies in the category of Assistant Engineers and Junior Engineers in the Department of Public Works Engineering, Water Resources and Rural Development and Panchayat Raj) (Special) Rules, 2005 as being contrary to the provisions of Articles 14 and 16 of the Constitution of India and the several decisions of the Supreme Court and consequently striking down the said Rules is hereby affirmed.
(3) The respondents shall initiate recruitment process to the backlog vacancies under the provisions of the Karnataka State Civil Services (Unfilled vacancies reserved for the persons belonging to the Scheduled Caste/Scheduled Tribes) (Special Recruitment)] Rules 2001, i.e., Backlog Rules and complete the same within a period of 6 months from today and the outer limit being one year from today.
(4) The eligibility for applying as against those backlog vacancies would be the qualification, educational and age prescribed in the Backlog Rules of 2001 as on the day the said Rules came into force i.e., 21st of November 2001. Only those persons who possessed the requisite qualification as on 21st November 2001 shall be considered for filling up of those backlog vacancies.
(5) All the persons absorbed/appointed/ regularised under the impugned Rules are permitted to be continued in service till the appointments are made in pursuance of the Rules of 2001 as aforesaid or for a period of one year, which ever is earlier.
(6) This recruitment to fill up the backlog vacancies shall apply only to the backlog vacancies which were existing on the day the Backlog Rules came into force i.e., 21st of November, 2001.”
17. It is relevant to observe that the Hon’ble Supreme Court was very clear when it directed the State Government to announce fresh recruitment notification to enable the aspiring candidates and all those candidates who were selected on contract basis, and appointed on 01.09.2003/20.01.2004 to afford them an opportunity to participate in the selection process. The Hon’ble Supreme Court has categorically held that such of the Assistant Engineers and Junior Engineers appointed on contract basis, who do not make grade, would naturally have to make way in favour of those selected under the directions at Sl.No.(ii) and (iii) of the directions issued by this Court and extracted herein above. It was also made clear that the educational, age and other qualifications prescribed in the Rules, 2001, have to be followed by the State Government. As noticed above, there is no change in the qualification prescribed in the notification under which the petitioners were selected during the year 2003, subsequently, when they were absorbed in the year 2005 and the recruitment notification of 2016 issued by the KPSC. All the three prescribe the very same qualification. At this stage, if the KPSC is permitted to draw a distinction between candidates who hold a degree of B.E (Civil/Mechanical) and other candidates who hold a Degree in B.E. (Civil Environmental Engineering), B.E. (Environmental Engineering) etc., ex- facie it would militate against the directions issued by the Hon’ble Supreme Court.
18. In this regard, it would be relevant to extract relevant portions of paragraph-7 from the judgment dated 04.11.2015 passed by the Hon’ble Supreme Court. Paragraphs-7(v) and (vi) read as follows:
“7(v). It is natural, that some of the candidates selected on contract basis, and appointed on 01.09.2003/20.01.2004 will be ousted, consequent upon the holding of the selection process contemplated under the 2001 Rules. Such of the Assistant Engineers and Junior Engineers appointed on contract basis, who do not make the grade, would naturally have to make way in favour of those selected under the directions at (ii) and (iii) above. The erstwhile appointees on contract basis, who do not fall in the zone of selection, have by now rendered 11/12 years of service as Assistant Engineers/Junior Engineers. It would be too harsh for them to vacate the posts occupied by them, for over a decade. In exercise of our jurisdiction under Article 142 of the constitution of India, we are satisfied in directing that such of the Assistant Engineers/Junior Engineers who have to make way to the regularly selected candidates, will be absorbed under the provisions of the Karnataka Civil Services (Absorption of persons appointed on contract basis against backlog vacancies in the category of the post of Assistant Engineers and Junior Engineers in the Department of Public Works Engineering, Water Resources and Rural Development and Panchayath Raj) (Special) Rules, 2005 (hereinafter referred to as the ‘2005 Rules’) with effect from 20.01.2004. They will be entitled to all service benefits including seniority and pay fixation etc. with effect from 20.01.2004.
(vi) The State Government shall have the liberty to create supernumerary posts to accommodate the employees who are appointed by way of absorption. We also direct, that the above Assistant Engineers/Junior Engineers, accommodated as a consequence of their absorption shall be placed in the seniority list below those appointed under the directions contained in (ii) and (iii) above. The order of inter se seniority of the above stated absorbed employees, will be regulated on the basis of their inter se merit.”
(Emphasis supplied) 19. The words, “who do not make the grade” can only mean that if they are not merited or fall short in the merit list. In the opinion of this Court, the directions issued by the Hon’ble Supreme Court, having regard to the facts and circumstances, can only mean that the petitioners who have been serving in the Department for the past 18 years, cannot be removed without giving an opportunity to participate in the fresh selection process. It is also pertinent to notice that the Hon’ble Supreme Court’s direction would impliedly relax the age criteria with respect to the petitioners and similarly placed candidates, though the direction requires compliance of the age requirement as provided in Rules, 2001. The non-selection of the petitioners on the ground that they do not have the requisite qualification and the endorsement issued by the State Government is clearly violative of the directions issued by the Hon’ble Supreme Court.
20. Therefore, this Court is of the considered opinion that the petitioners could not have been ousted from the selection process on technical grounds. For the very same reason, this Court is also of the opinion that these petitions are required to be allowed, without going into any other aspects of the matter.
21. As a result, we proceed to pass the following:
ORDER i) The writ petitions are allowed.
ii) The impugned order dated 14.09.2017, passed by the Tribunal is set aside.
iii) The endorsement dated 28.05.2016 issued by the respondent-State Government is quashed and set aside.
iv) Without disturbing the selection list dated 20.04.2016, the second respondent-KPSC is directed to reconsider the candidature of the petitioners, without going into the question of educational qualification.
v) The inter se seniority of the petitioners will be regulated in terms of the directions issued by the Hon’ble Supreme Court in its judgment dated 04.11.2015.
SD/- JUDGE SD/- JUDGE DL/JT