IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITION NOs.27958-27959 OF 2018 (S-KAT) BETWEEN 1. SRI. B. THIPPESWAMY, SON OF BORAIAH, AGED ABOUT 50 YEARS, RESIDING AT MIG 347, KALLAHALLI, VINOBHAGANAR, SHIMOGA-577204.
2. SRI. K. CHANDRAPPA, SON OF NAGAPPA, AGED ABOUT 48 YEARS, SANNAKASAPURA VILLAGE, GUDEKOTE POST, KUDLIGI TALUK, BELLARY-583130.
(BY SMT.IRFANA NAZEER, ADVOCATE) AND 1. STATE OF KARNATAKA, ... PETITIONERS REPRESENTED BY PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT, VIKASA SOUDHA, BANGALORE-560001.
2. THE CHAIRMAN, SELECTION AUTHORITY FOR JUNIOR ENGINEER AND CHIEF ENGINEER, COMMUNICATION & BUILDING (SOUTH), K.R.CIRCLE, BANGALORE-560001.
3. THE SECRETARY, BOARD OF TECHNICAL EXAMINATION, GOVERNMENT OF KARNATAKA, PALACE ROAD, BANGALORE-560001.
(BY SMT.ANITHA.N, HCGP FOR R-1 AND R-2) ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 31.05.2018 ISSUED BY THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL IN APPLICATION NO.1-3/2017, PRODUCED AS ANNEXURE-A TO THIS PETITION AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, DEVDAS J, MADE THE FOLLOWING:
ORDER The petitioners were applicants for the post of Junior Engineer (Mechanical Engineering) responding to the recruitment notification dated 01.02.2016 issued by the Public Works Department of the State of Karnataka. Admittedly, the petitioners are Diploma Holders in Mechanical Engineering (A.T.). Aggrieved by the rejection of their candidatures in the final selection list, the petitioners herein approached the Karnataka State Administrative Tribunal (hereinafter referred to as the ‘Tribunal’ for short). The Tribunal, by order dated 31.05.2018, rejected the applications. Therefore, the petitioners have preferred these writ petitions.
2. Learned Counsel Smt.Irfana Nazeer, appearing for the petitioners submits that the petitioners, on an earlier round of litigation, were before this Court in W.P.Nos.15955-16115/2009. The State Government had taken the initiative to fill up 1,357 backlog vacancies in the cadre of Assistant Engineers and Junior Engineers. 501 posts to the cadre of Junior Engineer were sought to be filled up by promulgating the Karnataka State Civil Services (Unfilled Vacancies Reserved For The Persons Belonging To Scheduled Castes And Scheduled Tribes) (Special Recruitment) Rules, 2001 (hereinafter referred to as ‘2001 Rules’). Notifications were issued by Chief Engineer to fill up 243 vacancies of Junior Engineers, by way of contract appointments. A challenge was raised seeking appointment on regular basis, under the ‘2001 Rules’. In fact, the action of the State Government to fill backlog vacancies for Scheduled Castes/Scheduled Tribes candidates, itself was sought to be assailed. It was contended by the State Government that the appointment on contract basis was a stop-gap arrangement, while regular recruitment would be made against the backlog vacancies, in consonance with the 2001 Rules. However, appointment on contract basis was once again resorted to by notification dated 20.01.2004.
3. The recruitment notification was challenged by unselected candidates and candidates who had not applied and sought regular appointment, on various grounds. This Court by order dated 13.07.2012 in W.P.Nos.15955-16115/2009 dismissed the writ petitions, while upholding the order of the Tribunal striking down the 2005 Rules, while directing the State Government to fill up backlog vacancies under the provisions of the Karnataka State Civil Services (Unfilled Vacancies Reserved For the Persons Belonging to Scheduled Castes/Scheduled Tribes) (Special Recruitment) Rules, 2001. It was specifically directed that the eligibility for applying as against those backlog vacancies would be the qualification, educational and age prescribed in the ‘2001 Rules’ as on the day the said Rules came into force i.e., 21.11.2001. Only those persons who possessed the requisite qualification as on 21.11.2001 shall be considered for filling up of those backlog vacancies. When the matter was taken up before Hon’ble Supreme Court, by order dated 04.11.2015, in Civil Appeal Nos.9337-9352/2015, the order passed by this Court on 13.07.2012 was upheld. The mode and method of carrying out the selection process was also elaborately stated by the Hon’ble Supreme Court.
4. In continuation of the said process of filling up of backlog vacancies, the impugned notification dated 01.02.2016 was issued. The educational qualification prescribed therein is a Diploma in Civil or Mechanical Engineering depending upon the requirements, as the case may be.
5. The learned Counsel, in the light of the background stated above, would submit that the petitioners herein fulfilled the required educational qualification since they are holders of Diploma in Mechanical Engineering. It is submitted that the appointing authority as well as the Tribunal erred in carving out an exception that only such persons who have a Diploma in Mechanical Engineering (General) were eligible for appointment. It was vehemently submitted that there is no such Diploma in General Mechanical Engineering. It is also submitted that in the Public Works Department and the Department of Panchayat Raj, where there is no special field or posts for automotive Engineers, several persons holding Diploma in Mechanical Engineering (Automobile Technology) or Automobile Engineering have been appointed and continued to serve the Department.
6. Per contra, the learned High Court Government Pleader Ms.Anitha N., submits that the appointing authority and the Tribunal were right in holding that under Rule 2(h) of the K.C.S. (General Recruitment) Rules, 1977, since the State Government has not issued a notification declaring that the Diploma in Mechanical Engineering (A.T.) is equivalent to Diploma in Mechanical Engineering, the petitioners cannot claim that they hold a Diploma which is equivalent to the prescribed educational qualification.
7. We have heard the learned Counsels and perused the writ papers.
8. In our opinion, the Tribunal has misdirected itself in trying to draw a distinction between Diploma in Mechanical Engineering and Diploma in Mechanical Engineering (A.T.). Basically, the recruitment notification dated 01.02.2016 did not specify that any Diploma other than a Diploma in Mechanical Engineering would not meet the criteria. There cannot be a denial or doubt that the petitioners are holders of Diploma in Mechanical Engineering. The words (A.T.) after the Diploma in Mechanical Engineering will not disentail the petitioners the basic qualification of a Mechanical Engineer. The core competence of both the streams of Engineering is the mechanics of engine. Moreover, if the recruitment notification does not give the details, the same cannot be supplied later. In the opinion of this Court, the subsequent distinction sought to be drawn by the appointing authority would amount to changing the rules of the game midstream. If the appointing authority was aware that under the head of Mechanical Engineering, there were several streams such as G.L, M.T.T, H.P.T, I.T, Automobile and W.S.M., the notification should have been specific as to the requirement. The action of the appointing authority is also questionable, since it is an admitted position that several Engineers and Diploma Holders in Automative Engineering have been appointed by the Department and they continue to serve the Department, which shows that persons like the petitioners have the requisite qualification to carry out the functions as Mechanical Engineers.
9. The basis for the appointing authority’s action seems to be the communication made by the Secretary, Technical Examination Board, on 29.03.2016 to the Chief Engineer, Communication and Buildings, Public Works Department. In the said communication, the Technical Education Board, in response to a letter dated 26.03.2016, has opined that Diploma in Mechanical Engineering (Automobile) is not equivalent to Diploma in Mechanical Engineering since they have a separate syllabus. However, since this Court, in its order dated 13.07.2012 has specifically held that the eligibility for applying as against the backlog vacancies would be the qualification, educational and age prescribed in the backlog Rules of 2001 and only those persons who possessed the requisite qualification as on 21.11.2001 are eligible, the recommendation of the Technical Examination Board in the year 2016, that too subsequent to the applications submitted by the petitioners, cannot be made applicable to the petitioners. The fact that previous selection and appointments under 2001 Rules have been carried out without making the distinction between Diploma Holders in Mechanical Engineering and Automotive/Automobile Engineering, it is trite that a distinction shall not be permitted under the 2001 Rules.
10. In the light of the above, we pass the following:
ORDER i) The writ petitions are allowed.
ii) The impugned order dated 31.05.2018 passed by the Tribunal in Application No.1 to 3 of 2017 is hereby quashed and set aside.
iii) The respondents are directed to include the petitioners in the final selection list, if they are otherwise merited, without going into the question of equivalence.
iv) The respondents are directed to complete process of selection at the earliest and at any rate within a period of three months from the date of receipt of a certified copy of this order.
SD/- JUDGE JT/-
SD/- JUDGE