IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY 2019 PRESENT THE HON’BLE MR.L.NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR WRIT APPEAL No.127/2016 C/W WRIT APPEAL No.4501/2015 (S-REG) IN WRIT APPEAL No.127/2016 BETWEEN:
SRI. B.P. NAGARAJU GOWDA S/O PUTTESWAMY GOWDA AGED ABOUT 52 YEARS W/A HALT AGENT BEERAHALLI RAILWAY STATION HAKKI HEBBAL HOBLI K.R.PETE TALUK MYSORE DISTRICT-570 028 ... APPELLANT (BY SHRI. A.V. AMARNATHAN, ADVOCATE) AND:
1. THE UNION OF INDIA REP BY ITS SECRETARY MINISTRY OF RAILWAYS RAILWAY BHAVAN PARLIAMENT BHAVAN STREET NEW DELHI-110 001 2. DIVISIONAL MANAGER (COMMERCIAL) SOUTH WESTERN RAILWAY MYSORE-570 021 3. B.N. SATHESHA S/O LATE NANJE GOWDA AGED ABOUT 38 YEARS R/AT BEERAHALLI AT POST AKKIHEBBALU (HOBLI) K.R.PET TALUK MANDYA DISTRICT-571 605 ... RESPONDENTS (BY SMT. H.C. KAVITHA, ADVOCATE FOR R1 & R2; BY SHRI. A.M. VIJAY, ADVOCATE FOR R3) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.19683/2014 DATED 26.08.2015.
IN WRIT APPEAL No.4501/2015 BETWEEN:
1. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF RAILWAYS RAILWAY BHAVAN PARLIAMENT BHAVAN STREET NEW DELHI-110 001 2. DIVISIONAL MANAGER (COMMERCIAL) SOUTH WESTERN RAILWAY IRWIN ROAD, MYSURU-570 021 ... APPELLANTS (BY SHRI. A.V. AMARNATHAN, ADVOCATE) AND:
1. B.P. NAGARAJU GOWDA S/O PUTTEGOWDA (PUTTASWAMY GOWDA) AGED ABOUT 53 YEARS W/A HALT AGENT BEERAHALLI RAILWAY STATION AKKI HEBBALU HOBLI, K.R. PETE TALUK MYSURU DISTRICT-570 028 2. B.N. SATHESHA S/O LATE NANJEGOWDA AGED ABOUT 39 YEARS R/AT BEERAHALLI AT POST AKKI HEBBALU HOBLI K.R. PETE TALUK MANDYA DISTRICT-571 605 ... RESPONDENTS (BY SMT. H.C. KAVITHA, ADVOCATE FOR R1 & R2) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.19683/2014 DATED 26.08.2015.
THESE WRIT APPEALS COMING ON FOR HEARING, THIS DAY, P.S.DINESH KUMAR J., MADE THE FOLLOWING:
O R D E R These two appeals have been filed challenging order dated 26.08.2015 passed by the Hon’ble Single Judge in Writ Petition No.19683/2014.
2. For the sake of convenience, parties shall be referred to as per their status in the writ petition.
3. The Union of India, respondent in the writ petition has filed W.A No.4501/2015 and the petitioner therein has filed W.A.No.127/2016.
4. Heard Shri A.V.Amarnathan, learned advocate for the petitioner, Smt.H.C.Kavitha, learned advocate for the respondents No.2 & 3 and Shri A.M. Vijay, learned advocate for respondent No.3.
5. Briefly stated the facts of the case are, petitioner was working as ‘Halt Agent’ on contractual basis with the Railways from 1988. He and his co-employees filed O.A.No.1098/2001 before the Central Administrative Tribunal(‘CAT’ for short) seeking regularization of their posts which was rejected by order dated 03.02.2003. Petitioner unsuccessfully challenged the same before this Court in W.P.No.47304/2003 decided on 08.11.2010.
6. On 13.04.2013, the Divisional Manager (Commercial), South Western Railways, invited applications for the post of ‘Halt Agents’. One of the conditions of selection was by way of a lottery to be picked by a child whenever there were more than one suitable candidates. Petitioner and few others challenged the said notification in W.P.No.20689- 92/2014. This Court did not grant any interim order. Consequently, selection process was completed and respondent No.3 was selected. Petitioner withdrew the writ petition and filed the instant writ petition with four prayers. Firstly, to regularize his services, secondly to hold that selection by draw is illegal, thirdly to hold selection of third respondent as illegal and fourthly, to continue his service as Halt Agent at Beeranahalli.
7. By the impugned order, learned Single Judge has held that selection by lottery violates Article 16 of the Constitution of India and therefore illegal. So far as regularization is concerned, the leaned Single Judge following a Division Bench decision of this Court in A.Parappa Vs. Union of India (W.P.No.47304/2003) decided on 08.11.2010 held that petitioner is not entitled for regularization. Hence, these writ appeals.
8. Ms. Kavitha, learned advocate arguing in support of the appeal filed by the Union India contended that posts of Halt Agents are temporary posts and therefore, in order to simplify the process, selection is done by a draw as per the Guidelines dated 24.06.2005 issued by the Government of India. With regard to regularization of service, she argued in support of the order passed by the learned Single Judge.
9. Shri A.V.Amarnathan, learned advocate for the petitioner opposing the appeal filed by Union of India contended that selection by lottery violates Article 16 of the Constitution of India and accordingly prayed for dismissal of the said appeal. With regard to regularization, he argued that petitioner has been working for several years as Halt Agent and therefore, Union of India were duty bound to consider his case.
10. We have carefully considered the submissions of learned advocate for the parties and perused the records.
11. In the conspectus of above facts, the following two points arise for consideration:
(i) Whether selection by lottery is lawful?
(ii) Whether petitioner is entitled for regularization?
12. Re. point No(i) Whether selection by lottery is lawful?
The relevant portion of the Guidelines issued by the Government of India reads thus:
“the selection will be by draw of lots drawn by any child if there is more than one suitable candidate.”
13. The eligibility criteria prescribed for an Halt Agent are as follows:
“5. ELIGIBILITY.
a. The applicant should be at least 10th standard pass (A copy of SSLC marks sheet should be enclosed) b. The applicant should be a permanent resident of the place where the halt station is located. (A Copy of proof of address should be enclosed along with the application).
c. The applicant should produce a Medical Certificate showing that he is fit for the active service and free from any communicable disease.
d. The previous halt agent are also eligible to apply.
e. Minors are not eligible to apply.”
14. The first condition is a pass certificate in SSLC. In case of more than one candidate being found suitable and if selection is made by draw of lots, a possibility of a candidate with lesser merit being selected cannot be ruled out which shall be antithesis of fair selection. In the circumstances, we are at one with the view taken by the learned Single Judge on this aspect.
15. Re. Point No.2 Whether petitioner is entitled for regularization?
Learned Single Judge has recorded in paragraph No.15 of the order that the issue with regard to petitioner’s regularization has been decided by this Court in A.Parappa(supra). As on date, petitioner is aged 55 years. As the matter is no more res integra having been decided by a co-ordinate Division Bench, no exception can be taken to the decision made by the learned Single Judge rejecting the prayer for regularization.
16. For the foregoing reasons, both appeals filed by the petitioner as well as the Union of India fail and they are accordingly dismissed. No costs.
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ACTING CHIEF JUSTICE Sd/-
JUDGE Yn.