IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST 2019 BEFORE THE HON'BLE MR. JUSTICE G. NARENDAR WRIT PETITION NO. 39289/2018 (S-Res) C/W. WRIT PETITION NO. 3976/2018 (S-Res) W.P. No. 39289/2018 BETWEEN SRI THIMMAPPA S/O BARAMAPPA, AGED ABOUT 50 YEARS, WORKING AS WATERMAN (NEERUGANTI) ITTIGEHALLI AREA, SIRGERE GRAMA PANCHAYAT. R/AT ITTIGEHALLI VILLAGE, SIRIGERE POST, SHIMOGGA TALUK, SHIMOGGA DISTRICT-577211 ... PETITIONER (BY SRI GANAPATHI, ADVOCATE) AND 1. STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF PANCHAYATARAJ AND RURAL DEVELOPMENT, VIKASA SOUDHA, BENGALURU-560004 2. THE CHIEF EXECUTIVE OFFICER SHIVAMOGGA ZILLA PANCHAYAT, SHIVAMOGGA-577201 3. THE EXECUTIVE OFFICER SHIMOGGA TALUK PANCHAYAT, SHIVAMOGGA TALUK, SHIVAMOGGA-577201 4. THE PANCHAYAT DEVELOPMENT OFFICER SIRIGERE GRAMA PANCHAYAT, SIRIGERE, SHIVAMOGGA TALUK, SHIVAMOGGA DISTRICT-577211.
5. SRI PARAMESH R., S/O RENUKAPPA, MAJOR BY AGE 22 YEARS, R/AT ITTIGEHALLI VILLAGE, SHIVAMOGGA TALUK, SHIVAMOGGA DISTRICT-577211 ... RESPONDENTS (BY SRI R. SHARATH CHANDRA, ADVOCATE FOR R2; SRI R. SRINIVAS GOWDA, ADVOCATE FOR R5;
R1, R3, R4 ARE SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 28.07.2018 UNDER ANNEXURE-K ISSUED BY RESPONDENT NO.2 AND ETC.
W.P. No.3976/2018 BETWEEN SRI THIMMAPPA S/O BARAMAPPA AGED ABOUT 49 YEARS RESIDING AT ITTEGEHALLI VILLAGE, SIRIGERE POST, SHIVAMOGGA TALUK SHIVAMOGGA DISTRICT-577211 (BY SRI GANAPATHI, ADVOCATE) ... PETITIONER AND 1. THE GOVERNMENT OF KARNATAKA REPRESENTED BY IS PRINCIPAL SECRETARY DEPARTMENT OF PANCHAYAT RAJ AND RURAL DEVELOPMENT, VIKAS SOUDHA BENGALURU-560 001 2. THE CHIEF EXECUTIVE OFFICER SHIVAMOGGA ZILLA PANCHAYAT SHIVAMOGGA-577211 3. THE EXECUTIVE OFFICER SHIVAMOGGA TALUK SHIVAMOGGA-577211 4. THE PANCHAYAT DEVELOPMENT OFFICER (PDO) SIRIGERE GRAM PANCHAYAT SIRIGERE SHIVAMOGGA-577211 ... RESPONDENTS (BY SRI T.S. MAHANTESH, AGA FOR R1;
SRI R. SHARATH CHANDRA, ADVOCATE FOR R2; R3 & R4-SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT SECOND RESPONDENT TO REGULARIZE THE SERVICE OF THE PETITIONER FOR THE POST OF WATERMAN IN THE FOURTH RESPONDENT PANCHAYAT AS PER THE RESOLUTION DATED 26.09.2014 PASSED BY THE FOURTH RESPONDENT PANCHAYAT AT ANNEXURE-A.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING.
O R D E R Though these writ petitioners are listed for hearing on interlocutory application praying for vacating the interim order of stay granted by this Court, with the consent of the learned counsel for the parties the petitions are taken up for final disposal by this common order.
2. Heard the learned counsel for the petitioner and the learned AGA for the 5th respondent and the learned counsel for respondent Nos.1 and 2 in both the petitions.
3. The petitioner is common in both the writ petitions.
4. In the first writ petition the petitioner is calling in question the proceedings of the Chief Executive Officer, Zilla Panchayat, Shivamogga dated 28.07.2018, wherein the Chief Executive Officer has directed the 3rd respondent to enquire into the appointment of the petitioner, who it is alleged, did not possess the stipulated qualification and further directed that the appointment be made in conformity with the roster point. In a sense the order impugned is not a fiat or a direction to the Executive Officer of the Taluk Panchayat to remove the petitioner nor is it a direction to dismiss him or alter his service conditions.
5. In the second writ petition the petitioner has sought for the relief of regularization of his service.
6. Brief facts necessary for the disposal of the petitions are as follows:
The case of the petitioner is that he was appointed as Waterman (Neeruganti) on temporary basis by the 4th respondent-Panchayat Development Officer, Sirigere Gram Panchayat vide resolution dated 12.06.2012 on a monthly salary of Rs.3,000/-. A copy of the resolution appointing him as Waterman on temporary basis, is produced at Annexure-A. The appointment was necessitated on account of superannuation of the erstwhile Waterman.
7. It is contended that the 4th respondent-Panchayat invited applications. Pursuant to the applications, (1) Girish (SSLC failed) (2) instant petitioner (7th Standard) and (3) the 5th respondent Paramesh R, (SSLC passed) had applied for the said post. The said applications were considered and the 4th respondent-Panchayat by resolution dated 28.01.2012 resolved that the 5th respondent is the only eligible candidate, as he, not only possesses necessary educational qualification, but also he belongs to the Scheduled Castes, to which category the post was reserved. But strangely it has reasoned that since the 5th respondent is pursuing his Pre- University Course, it was decided to temporarily postpone the issue of appointment of Waterman and it was resolved further to appoint somebody on a temporary basis and thereafter the petitioner came to be appointed on temporary basis and he continued in his employment.
8. It appears that the 5th respondent aggrieved by the above action, made a representation to the concerned Minister who in turn forwarded the same to the Chief Executive Officer, Zilla Panchayat and the Chief Executive Officer, Zilla Panchayat after calling for the records perused the same and then proceeded to pass the impugned order vide Annexure-K. By the said proceedings the Chief Executive Officer has come to the conclusion that the person who was ineligible to be appointed and who did not possess requisite qualification has been appointed and having arrived at such conclusion, he has proceeded to direct the Executive Officer of the Taluk Panchayat to conduct an enquiry, which in the opinion of the Court is the appropriate approach and the direction is entirely inconsonance with law. It is further directed that action ought to initiated in pursuance to the enquiry and thereafter appointment to the post to be made keeping in mind, the reservation of the post, in respect of the applicants from the Scheduled Caste category. Aggrieved by the same, the petitioner is before this Court.
9. Learned counsel for the petitioner would draw the attention of the Court to Annexure-J, the Government order dated 14.06.2018 and he contends that the petitioner is entitled to continue in employment as the Government has directed that the employees in the employment of the Panchayat should be continued even if they did not possess stipulated qualification. In the instant case it is not a mere case of the petitioner not possessing the stipulated educational qualification, but his appointment is contrary to the reservation in accordance with the roster point, by which the candidate belonging to Schedule Castes category was required to be considered for appointment.
10. It is not the case of the petitioner that he belongs to the Schedule Category, much less is it the case that he possesses the stipulated educational qualification of, SSLC pass.
11. It is strange that the 5th respondent though was a candidate, who fully qualified on all parameters, was sought to be avoided and they have been successful for all these successive seven long years. If the said situation is permitted further, it would be in the teeth of the provisions of Section 4 of the Karnataka Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which reads as under:
“4. Punishment for neglect of duties.— Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, willfully neglects his duties required to be performed by him under this Act, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year.”
12. The manner in which the 4th respondent has proceeded to favour the petitioner by the resolution dated 28.07.2018 and deny the rights to the 5th respondent cannot be appreciated. It can only be on account of collusion between the petitioner and the then Panchayat which has by it’s resolution denied the legitimate right of the 5th respondent, despite the fact being that he was the only qualified candidate who had applied and was available. The reasoning that he need not be considered as he is pursuing his Pre-University Course is not merely arbitrary, but appears to be motivated. It is not the case of the Panchayat that the 5th respondent had requested time to join duties. It is also not the case of the Panchayat that they had offered the employment pursuant to the proceedings initiated by them and 5th respondent refused the same. This being the case this Court is constrained to infer adversely as against the petitioner.
13. The further relief sought for by the petitioner in the second writ petition being for absorption or confirmation of his services is directly in conflict with the law laid down by the Constitutional Bench of the Apex Court in the case of Umadevi Vs. State of Karnataka. The petitioner is a backdoor entrant and as observed above, the appointment of the petitioner in the circumstances discussed does not inspire confidence of this Court in view of the fact that the resolution clearly notes that the educational qualification of the petitioner is only 7th Standard and does not meet the minimum educational qualification stipulated for the post of Waterman which is SSLC pass. In fact, the 1st respondent one Girish who had failed in his SSLC has not been considered on account of fact that he has failed in SSLC examination. If that be so, the petitioner who possesses a lesser qualification than the said Girish could not have been appointed.
14. In view of the above discussion, no legal right is vested in the petitioner to seek confirmation or regularization of his services and the very appointment of the petitioner being contrary to the law and the petitioner not possessing minimum qualifications, he is not entitled to be continued in the said post. Accordingly, the petitions stand dismissed.
In view of the dismissal of the petitions, the prayer sought in IA No.1/2019 does not survive for consideration and accordingly, IA No.1/2019 is dismissed.
SBS/-
Sd/- JUDGE