IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 3RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.1585 OF 2015 (S-RES) BETWEEN:
SRI.MANJUNATHASWAMY BARIKAR SON OF CHOWDAPPA BARIKAR AGED ABOUT 35 YEARS AMBEDKAR STREET, ISSUR SHIKARIPUR TALUK SHIVAMOGGA DISTRICT.
... APPELLANT (BY SRI.VIGNESHWAR.S.SHASTRI, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY TO SOCIAL WELFARE DEPARTMENT MULTI STORIED BUILDING BENGALURU – 560 001 2. COMMISSIONER SOCIAL WELFARE DEPARTMENT MULTI STORIED BUILDING BENGALURU – 560 001 3. REGISTRAR OF COOPERATIVE SOCIETIES CO-OPERATIVE DEPARTMENT ALI ASKAR ROAD BENGALURU – 560 001 4. THE MEMBER SECRETARY COMMON CADRE COMMITTEE PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK CHAMARAJPET BENGALURU – 560 018 … RESPONDENTS (BY MS.N ANITHA, HCGP FOR RESPONDENT Nos.1 TO 3 SRI P ANAND, ADVOCATE FOR RESPONDENT No.4) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.16202/2015 DATED 30/04/2015.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 30.04.2015 passed by the learned Single Judge in Writ Petition No.16202 of 2015, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Article 226 of the Constitution of India, praying to quash the endorsement dated 19.11.2014 issued by the 4th respondent – The Member Secretary, Common Cadre Committee (for short ‘the CCC’) vide Annexure-N and endorsement dated 12.03.2015 vide Annexure-Q, and for a mandamus directing the respondents to issue an order of appointment to the petitioner for the post of Accounts Officer. The petitioner claims that he belongs to scheduled caste community having the qualification of M.Com, Diploma in Co-operation, L.LB. and certificate course in Tally and Computer Hardware and Networking. It is stated that 4th respondent issued notification dated 10.02.2007 inviting applications for various posts to fill up back log vacancies. Pursuant to the said notification the petitioner applied for two posts i.e., Accounts Officer and Peon. The petitioner by notice dated 11.02.2018 was called for counseling and for verification of original documents on 26.02.2008 for the post of Accountant. The petitioner states that he attended the counseling on 26.02.2008 and produced all the necessary documents for verification. The petitioner had also applied for the post of peon. The 4th respondent by order dated 29.05.2008 appointed the petitioner as peon. Pursuant to the order of appointment the petitioner reported to duty as peon. Subsequently, he remained unauthorized absent. The petitioner made representation dated 13.09.2008 stating that from 01.07.2008 he has not attended the duties of peon, he further stated that even though his name appeared in the selection list of Accountant, he is not appointed to the said post. Further stated that he is resigning from the post of peon and requested for appointment as Accountant. The 4th respondent accepted his resignation and issued endorsement dated 02.02.2009. Again the petitioner made representation seeking appointment as Accountant. The 4th respondent issued endorsement dated 19.11.2014 stating that as he has not submitted the required documents along with his application, his candidature was rejected and the same was informed to him earlier. The Advocate who had issued notice on behalf of the petitioner was also informed the same by the 4th respondent vide Annexure-Q dated 12.03.2015. Aggrieved by those endorsements seeking for direction to appoint him as Accountant, the instant writ petition was filed. The learned Single Judge rejected the writ petition as having no merit and observed that whether petitioner submitted all the documents on 26.02.2008 or not, is a question of fact which cannot be gone into in the writ petition. Further, after more than six years the petitioner could not have sought appointment. Aggrieved by the order of the learned Single Judge the petitioner is in appeal.
3. Heard the learned counsel for the appellant and learned counsels for the respondents. Perused the appeal papers and also the records produced by the 4th respondent .
4. Learned counsel for the appellant submits that he being a scheduled caste person having qualification of post graduation applied for the post of Accountant and Peon in pursuance to the advertisement issued by the 4th respondent to fill up the back log vacancies. The petitioner was called for counseling and on that day, the petitioner produced all the original documents for verification, subsequently, he was appointed to the post of peon, but he was not given appointment to the post of Accountant. The learned Single Judge committed an error in dismissing the writ petition by observing that the petitioner cannot claim the right of appointment after lapse of six years. It is his contention that the selection list would be operative till it gets exhausted. Hence, he prays for allowing the writ appeal.
5. Per contra, learned counsel for the 4th respondent would submit that the original document required for the post of Accountant i.e., Tally certificate was not produced by the petitioner on the date of counseling and verification of originals on 26.02.2008. Further he submits that the petitioner having kept quiet for more than six years, at this stage cannot seek for appointment.
6. Having heard the learned counsels for the parties and on going through the appeal papers as well as the records produced by the 4th respondent, we are of the view, that the petitioner has not made out any ground to interfere with the well reasoned order passed by learned Single Judge. The order passed by the learned Single Judge is neither erroneous nor perverse. The 4th respondent invited applications from eligible candidates to fill up various posts of back log vacancies. The petitioner applied for the post of Accountant and Peon. He was called for counseling by notice dated 11.02.2008, which clearly indicated that candidates will have to produce originals of date of birth certificate, certificates of qualification, caste certificate, conduct certificate, medical certificate regarding fitness and other allied documents during counseling. It is not in dispute that the petitioner attended the counseling on 26.02.2008. The petitioner did not receive appointment order for the post of Accountant, but received appointment order for the post of Peon. He reported to duty as Peon and worked for nearly three months and thereafter remained absent. He made representation dated 30.09.2008 admitting his absence from duty from 01.07.2008 and requested for acceptance of his resignation. In the same representation the petitioner sought appointment for the post of Accountant. The 4th respondent accepted petitioner’s resignation by order dated 02.02.2009. Thereafter the petitioner appears to have slept over the matter for six long years and only in the year 2015 has sought information under Right to Information Act and made representation seeking appointment as Accountant. The 4th respondent issued endorsement stating that the petitioner had not enclosed or produced the required original document for the post of Accountant on the date of counseling, therefore, his candidature for the post of Accountant was not considered. In that respect the petitioner was issued endorsement on 13.09.2008 itself. But the petitioner has not disclosed the same in his writ petition and he has not challenged the said endorsement dated 13.09.2008. Only when endorsement was issued in the year 2014, he has filed the instant writ petition. The petitioner has approached this Court after more than seven years from the date of rejection of his candidature for the post of Accountant by the 4th respondent. In the matter of recruitment and appointment one has to approach the Courts within a reasonable time i.e., six months from the date of rejection of their candidature. If there is delay in approaching the Court in the matter of recruitment and appointment, third party rights would come in the way of challenge, since the right of the appointed candidates would have adverse consequences. In the case on hand, from the materials on record it is clear that even though the petitioner was aware of rejection of his candidature for the post of Accountant in the year 2008 itself, he slept over the matter and has approached this Court only in the year 2015. Hence, on the ground of delay and laches the petition is liable to be rejected. Moreover, the respondents have stated that the petitioner had not produced the required document for the post of Accountant i.e., the Tally certificate on the date of counseling. The records produced by the 4th respondent indicated that along with the application, the petitioner had not produced the Tally certificate and a xerox copy of the certificate appears to have been produced subsequently, after the completion of process of recruitment along with representation. One has to produce the necessary documents along with the application and make available the original documents on the date of verification. In the notice issued to the petitioner for attending the counseling, it was specifically indicated that what are the documents to be produced at the time of counseling, whereas the petitioner has failed to produce the same on the date of counseling. Hence, we find no good ground to interfere with the order passed by the learned Single Judge. Accordingly, the appeal is dismissed as devoid of merit.
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JUDGE JUDGE NG* CT:bms