IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.50172/2018(S-CAT) BETWEEN:
1. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF INFORMATION AND BROADCASTING ‘A’ WING SHASTRI BHAVAN, NEW DELHI – 110 001 2. THE CHIEF EXECUTIVE OFFICER PRASAR BHARATHI II FLOOR, PTI BUILDING PARLIAMENT STREET NEW DELHI – 110 001 3. THE DIRECTOR GENERAL ALL INDIA RADIO, AKASHVANI BHAVAN PARLIAMNET STREET NEW DELHI - 110001 4. THE ADDL. DIRECTOR GENERAL SR I & II ALL INDIA RADIO, RAJBHAVAN ROAD, BENGALURU – 560001 5. THE STATION DIRECTOR ALL INDIA RADIO, AIR COMPLEX RAJ BHAVAN ROAD, BENGALURU – 560001 ... PETITIONERS (BY SRI VISHNUBHAT, ADVOCATE) AND:
1. BHARATHI JALAWADI W/O LATE BALACHANDRA JALAWADI AGED ABOUT 35 YEARS R/AT SANGAMESHWARA NILAYA DHANASHREE, NEAR ITI COLLEGE SHOLAPUR ROAD BIJAPUR - 586101 2. SMT D GANGAMANI LOWER DIVISION CLERK (FORMERLY AT ALL INDIA RADIO HASSAN) PRESENTLY WORKING AT DOORDARSHAN KENDRA J C NAGAR BENGALURU - 560006 3. SHRI M ARUNKUMAR LOWER DIVISION CLERK ALL INDIA RADIO BIJAPUR- 586102 4. SMT VANISHREE LOWER DIVISION CLERK ALL INDIA RADIO MANGALURU - 575001 5. SMT DEVAKI DEVI LOWER DIVISION CLERK ALL INDIA RADIO CHITRADURGA-571 103 6. SMT YESHODA DEVI LOWER DIVISION CLERK DOORDARSHAN KENDRA BENGALURU – 560006 ... RESPONDENTS (BY SRI OBALAPPA.N, ADVOCATE FOR C/R1) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU DTD 13.06.2017 & 25.09.2018 PASSED IN R.A.NO.66/2016 VIDE ANNEXURES-H & R RESPECTIVELY, AS THE SAME IS UNJUST, ARBITRARY AND WITHOUT AUTHORITY OF LAW AND CONSEQUENTLY DISMISS R.A.NO.66/2016.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, SATYANARAYANA J., MADE THE FOLLOWING:
ORDER Respondents 1 to 5 in Review Application No.170/00066/2016 in OA.No.170/00240/2015 on the file of the Central Administrative Tribunal (‘Tribunal’ for short) have come up in this writ petition impugning the order dated 13.06.2017 passed in the said Review Application vide Annexure-H as well as the order dated 25.09.2018 passed in the Miscellaneous Application in M.A.No.464/2017 in the very same Review Application vide Annexure-R.
2. The proceedings in OA.No.170/00240/2015 was initiated by the 1st respondent – Bharathi Jalawadi, wife of late Balachandra Jalawadi. It is stated that the husband of 1st respondent, namely Balachandra Jalawadi was working as a News Reader – cum – Translator in 3rd petitioner - All India Radio and while in service he died on 09.12.2003. Thereafter, 1st respondent had filed an application on 24.12.2004 seeking appointment on compassionate grounds. That besides the said application of 1st respondent there were other applications filed by similarly placed persons seeking appointment on compassionate grounds.
3. It is stated that the said applications seeking appointment on compassionate grounds were taken up for consideration in the year 2005 by the petitioners. At that point of time, there were in all about 30 vacancies available and out of that, only 5% was the quota available for appointment on compassionate grounds. That when said 5% of 30 is taken into consideration, the posts that were available for appointment of compassionate grounds were only 1.5. It is stated that in the list of candidates seeking appointment on compassionate grounds, which was maintained in the office of petitioners, the name of 1st respondent was at Sl.No.2 in the year 2005. As such, the 1st person in the list was given appointment and others names were not considered.
4. Thereafter, it is seen that similar appointments were made in the years 2006, 2007, 2008, 2009, 2010, 2011, 2012 and 2013, however, the 1st respondent’s case was not considered.
5. It is in this background, 1st respondent approached the Central Administrative Tribunal at Bengaluru by filing an application in OA.No.170/00240/2015 seeking quashing of Annexures-A4 and A7, which are the orders passed by the petitioners considering the applications of other similarly placed persons and also other orders at Annexures-A8 to A16, where the request of 1st respondent has not been considered favourably but it was kept on back burner. The said application filed by 1st respondent was dismissed by the Tribunal by order dated 15.9.2015, wherein it was observed that the applicant/1st respondent being second candidate in the list and 5% quota out of 27 vacancies which were in existence at that time being 1.35 posts, as only one person could be appointed the 1st person in the list was appointed, hence, the application filed by the 1st respondent does not merit consideration.
6. Thereafter, the 1st respondent has again approached the Tribunal by filing a Review Application in RA.No.66/2016, wherein she was able to demonstrate that the total number of vacancies available were 30, out of that 5% quota of vacancies available for appointment on compassionate was 1.5 and the same should be considered as 2 posts/vacancies since 50% or above of is required to be taken as 1. Therefore, she being at Sl.No.2 was eligible for appointment on compassionate grounds, hence her name should have been considered for the said second post.
7. The aforesaid contention of the 1st respondent was accepted in the Review Application No.66/2016 by order dated 13.06.2019. However, the said order was challenged by the petitioner herein by filing an application in MA.No.464/2017 on the ground that the order dated 13.06.2017 is not a speaking order and the same requires reconsideration. In this background, the review application was taken up for consideration again on 25.09.2018 and by a detailed reasoned order the Tribunal has confirmed the earlier order dated 13.06.2017 in holding that the applicant/1st respondent herein is eligible to be appointed in 2005 in the second post available and also directed the petitioners to implement the same within one month. It is this order as well as the order passed in Review Application, which are sought to be challenged in this writ petition.
8. Heard the learned counsel for petitioners as well as contesting 1st respondent. Perused the orders impugned. On going through the same, it is clearly seen that the case of the 1st respondent is that though her application was rejected erroneously by order dated 15.9.2015 in dismissing OA.No.240/2015, subsequently on filing the Review Application the Tribunal has appreciated the material on record and after noticing that a serious error was committed by it while disposing of the original application, has allowed the review application in directing the petitioners to consider the application of the 1st respondent herein afresh within two months next. Subsequently, after miscellaneous application was filed by the petitioners herein in challenging the said order on the ground that it is a non speaking order, the Tribunal by a detailed order dated 25.9.2018 has clarified the reason as to why the application of the 1st respondent is required to be considered as on 2005 in the background that the percentage of posts available as on that point of time being 1.5, the same was held to be considered as 2 posts in view of the fact that the percentage available being 1.5, the remaining 0.5 was ordered to be considered as 1, thereby taking the vacancy available under compassionate grounds as 2 instead of 1 as on 2005.
9. In fact, the said order of the Tribunal is in consonance with the law laid down by the Apex Court with reference to the manner in which fraction is required to be considered which is in the matter of State of U.P and Anr., -vs- Pawan Kumar Tiwari and Ors., reported in 2005 SCC (L&S) 193, wherein at paragraph 7, it is held as under:
“7. We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is: if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment”.
10. Also, a reading of the order of the Tribunal in MA.No.464/2017, particularly paragraph 3 of the order would clearly indicate that the Tribunal has rightly considered the case of the 1st respondent herein without even referring to the aforesaid judgment of the Apex Court, which reads as under:
“3. Apparently the respondents are under the impression that no special benefit need to be shown to anybody in violation of Article 14. This without any doubt is a correct decision. But the fact remains that in relation to 2005, now the respondents admit that applicant had been in the 2nd position and had there been two posts available as against 1½ post available, she would have been appointed. If the vacancy position is 31, then it will be slightly more than 1½. If it is more than 1½, since this being a welfare measure, it should have been taken as 2 and the applicant ought to have been appointed at that point of time, even otherwise also if in 2013, 61 vacancies were available on the regularization, then also a more sensitive stand could have been taken. There was no reason for unnecessary technical reasoning to be brought in, as applicant should have been appointed in 2005 itself based on stipulations that when ever more than 50% of any stipulation is available, it has to be counted as the next available numerical grade, it could have been adjusted in 2006 when 13 vacancies were available and subsequent years also. Therefore, we find there is no reason or logic in the contention raised by the respondents. Applicant will be eligible to be appointed in 2005, as she was No.2 in the list and 1½ or more has to be counted as two and not one, especially since this is a welfare measure and it could have been accommodated in subsequent year.”
11. With this, it is clearly seen that in the facts and circumstances of the case, the orders impugned passed by the Tribunal being just and proper, the same do not call for interference by this Court. Indeed, it would clearly demonstrate that, how the Officers of Central Government are trying to be so technical if they so desire and harass the applicants seeking appointment on compassionate grounds, which is seen in this matter.
12. Accordingly, this writ petition is dismissed as no justifiable grounds are made out to interfere with the order dated 13.6.2017 passed in RA.No.66/2016 and the order dated 25.9.2018 passed in MA.No.464/2017.
Sd/- JUDGE TL/nd Sd/- JUDGE