(BY SRI GANGADHAR SANGOLLI, ADVOCATE)

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3 RD DAY OF NOVEMBER 2015 PRESENT THE HON' BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR AND THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No /2015 (S-KAT) BETWEEN: B.C.MAPIGOWDA, S/O CHANDRAHASA, AGED ABOUT 40 YEARS, OCC: NIL, R/O POST: UMMADAHALLI, BELLUNDGERE VILLAGE, TALUK AND DISTRICT, MANDYA: PETITIONER (BY SRI GANGADHAR SANGOLLI, ADVOCATE) AND: 1. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, HORTICULTURE DEPARTMENT, M. S. BUILDING, BENGALURU THE SECRETARY, KARNATAKA PUBLIC SERVICE COMMISSION, UDYOGA SOUDHA, PARK HOUSE, BENGALURU RESPONDENTS (BY SRI H.B. MAHESH, HCGP FOR R-1, SRI REUBEN JACOB, ADVOCATE FOR R2)

2 2 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL DATED IN APPLICATION NO.757/2013 VIDE ANNEXURE-A AND FURTHER TO ALLOW THE SAME AS PRAYED THEREIN. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, B. VEERAPPA, J., MADE THE FOLLOWING: ORDER The unsuccessful original applicant has filed the above writ petition against the order dated 22 nd April, 2015 passed in Application No. 757/2013 dismissing his application for selection and appointment to the post of Horticulture Assistant in Group 3A - Physically Handicapped quota or any other category and to place him appropriately in the selection list by redoing the selection. 2. The petitioner, who was an applicant for the post of Horticulture Assistant pursuant to the notification dated under 3A Physically Handicapped quota, filed application bearing No. 757/2013 before the Karnataka Administrative

3 3 Tribunal (hereinafter referred to as the KAT for short) to set aside a portion at Sl.No.2 of the notification dated bearing No. PSC 2 RT (4) B/10 for the post reserved for 2 Leprosy Cured candidates which are unfilled due to non availability of qualified leprosy cured candidates and have been carried forward to the next recruitment. A direction was also sought to the respondents to consider his case for selection and appointment to the post of Horticulture Assistant in Group 3A - Physically Handicapped quota or in any other category. He contended that in pursuance of the notification dated published by the respondents, he had applied for the said post i.e., Horticulture Assistant under 3A category Physically Handicapped quota and in the said notification 418 posts were called for. In so far as the post of Horticulture Assistant is concerned, there was a note that the said post was reserved only for the leprosy cured patients. The 2 nd respondent rejected his claim

4 4 on the ground that he does not possess the requisite qualification. But in so far as selection of warden is concerned there was a sub-note stating that in case there is no application filed by the leprosy cured patients, the other physically handicapped persons would be considered for selection. The applicant produced a certificate to that effect that, he is a physically handicapped person and that he has completed his PUC in Horticulture Training. In the selection list his name was found at Sl.No.9 against which it is mentioned as N.R.Q (non-required qualification). The applicant and the three other persons questioned the same before the KAT in Application No. 3139/2011 and connected matters and the KAT by the order dated directed the respondents to consider the case of the applicants for selection and appointment to the post of Horticulture Assistant, in pursuance of which, the respondents have published another selection list. The interview was

5 5 conducted and the applicant was allotted 18 marks. It was further contended that, out of 22 posts reserved for Physically Handicapped category, only 6 posts have been filled up and 3 posts were kept vacant due to the pendency of the applications before the KAT and in fact 13 posts were not filled up and as per the notification, they were carried forward. It was also contended that the Government Order dated clearly stated that wherever a physically handicapped person is not available, then the said post should be filled up by other physically handicapped person available and allotting the physically handicapped quota to leprosy cured patients is illegal and contrary to law. Therefore, he made a representation before the concerned authority which has not been considered by the respondents. Hence, he filed an application before KAT for the relief sought for.

6 6 3. The second respondent/kpsc filed objections to the said application contending that 418 posts of Horticulture Assistants in the Department of Horticulture were notified and out of which, only 22 posts are reserved for physically handicapped persons leprosy cured candidates only; that the applicant claimed selection to the post of Horticulture Assistant under 3A Physically Handicapped (Locomotor) category; it was also mentioned in the application that, his qualification is PUC suppressing the fact that he had passed JOC (Sericulture) from the Vocational Education Board; and on noticing that he did not possess the qualification of PUC., his application was rejected. In pursuance of the interim order granted by the KAT, the applicant/petitioner was permitted to attend the interview. The applications filed by the applicant and others were allowed by the KAT on with a direction to the respondents to consider their performance in the interview and to take further

7 7 steps. The said order passed by the KAT was upheld by this Court in W.P.No /2012, consequent of which, the KAT has revised the final selection list on wherein the applicants in Application Nos. 3134/2011 and 3139/2011 have been selected on their merit under General Merit 3A Rural and General Merit B category but the applicant was not selected as the total percentage of marks secured by the last candidate under 3A category was % which was more than the marks secured by the applicant i.e., 48.88%. Therefore, according to the KPSC/2 nd respondent the contention of the petitioner that he should have been considered for selection under the physically handicapped category is untenable when the posts were identified for Leprosy Cured Candidates only in terms of the notification dated which was in force at that time and the Government Order dated relied upon by the applicant cannot be made

8 8 applicable. On these grounds, the respondents sought for dismissal of the application. 4. The KAT after hearing both the parties and considering the entire material evidence on record dismissed the application filed by the petitioner holding that the notification inviting applications itself states that as against 22 posts reserved for physically handicapped persons, only Leprosy Cured Candidates can apply and the applicant is not a leprosy cured candidate. It also held that Appointing Authority will be in a better position to determine as to which posts have to be reserved for which category of physically handicapped persons keeping in view the nature of work attached to the posts, against which, the present writ petition is filed. 5. We have heard the learned Counsel for the parties to the lis.

9 9 6. Sri Gangadhar Sangolli, learned Counsel for the petitioner vehemently contended that the petitioner had applied under 3A Physically Handicapped quota and in any event, if he is ineligible to be considered under 3A Physically Handicapped quota, then the 2 nd respondent ought to have considered the order dated passed by the 1 st respondent which is binding on it and appoint the petitioner for the post of Horticulture Assistant. He also contended that the reservation of 22 posts under Physically Handicapped category exclusively for Leprosy Cured persons amounts to 100% reservation within the same category and is not permissible. Therefore, he sought to set aside the impugned order passed by the KAT. 7. Per contra, Sri M.B. Mahesh, learned HCGP for respondent No.1/State and Sri Reuben Jacob, learned

10 10 Counsel for respondent No.2/KPSC sought to justify the impugned order. 8. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record carefully. 9. It is an undisputed fact that the 2 nd respondent issued a notification on as per Annexure-A1 inviting various group C posts including Horticulture Assistants at Horticulture Department about 418 posts. Out of 418 posts, 22 posts were reserved for Physically Handicapped persons to which only leprosy cured candidates can submit their applications (SC-3 posts, ST-1 post, Category-I 1 post, Category-2A 3 posts, Category-2B 1 post, Category-3A -1 post, Category-3B 1 post and GM-11 post). The 2 nd respondent/selection Authority has notified the same as per the classification and qualification provided

11 11 by the Department. The Department has classified the said posts as per the existing rules issued by the Government in exercise of powers under Sub-section (1) of Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and as per Rule 9 of the Karnataka Civil Service (General Recruitment) Rules, Admittedly, the petitioner had applied to the post of Horticulture Assistant claiming reservation under Category 3A Physically Handicapped (Locomotor). The qualification prescribed in the notification is that the candidates must possess PUC examination or possess equivalent qualification and must have undergone successfully ten months training in Horticulture conducted by the Horticulture Department or must possess job oriented course certificate in Horticulture subject conducted by the Directorate of Vocational Education Board. Admittedly, the petitioner has suppressed in his application by mentioning his

12 12 qualification as PUC from the Pre University Education Board in spite of him passing JOC (Sericulture) from the Vocational Education Board and not PUC. After the results of the examination, on scrutiny of the application, the same was noticed by the 2 nd respondent. Accordingly, his application was rejected. It is also not in dispute that in pursuance of the interim order passed by the KAT, the applicant was permitted to attend the interview subject to the decision on the application and ultimately, the application came to be allowed with a direction to consider their performance in the interview and to take steps. The said order of KAT was upheld by this Court in W.P.Nos /2012, in pursuance of which, the 2 nd respondent/kpsc has revised the final selection list on The other applicants in Application N.3134/2011 and 3139/2011 have been selected on their merit under GM/3A/RL and GM/B category respectively. The petitioner/applicant has not been

13 13 selected as the total percentage of marks secured by the last candidate under 3A Category was 51.33% which is more than the total percentage of marks secured by the petitioner i.e., 48.88%. Therefore, his contention that he should have been considered for the selection under the Physically Handicapped Category is untenable. 10. It is also not in dispute that what was challenged by the petitioner before the KAT was only a portion of the notification i.e., note (2) in the notification dated (Final Selection List revised) and not the reservation made in the notification dated inviting applications for the post of Horticulture Assistants, Horticulture Department. The reservation is made after following the then existing rules/orders of the Government issued in exercise of the powers under Sub-section (1) of Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and as per Rule 9 of

14 14 the Karnataka Civil Service (General Recruitment) Rules, It is also not in dispute that without challenging the reservations made in the Original Notification inviting the applications to fill up various posts, the applicant filed an application and participated in the proceedings and secured only 48.88% of marks whereas the last candidate selected under 3A Category secured 51.33%. Now he cannot turn round and challenge the Final Selection List after having been participated in the Recruitment process. The very application filed by the petitioner was not maintainable in view of the law of estoppel/waiver or acquiescence and in view of the dictum of the Hon ble Supreme Court in the case of Manish Kumar Shahi vs- State of Bihar reported in (2010)12 SCC 576] at para-16 wherein it has been held as under: 16. We also agree with the High Court that after having taken part in the process of selection knowing fully well

15 15 that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal vs- State of J & K [(1995) 3 SCC 486], Marripati Nagaraja vs- Govt. of A.P. [(2007) 11 SCC 522, Dhananjay Malik vs- State of Uttaranchal [(2008)4 SCC 171], Amlan Jyoti Borooah vs- State of Assam

16 16 [(2009) 3 SCC 227] and K.A. Nagamani vs- Indian Airlines [(2009) 5 SCC 515]. 11. The Hon ble Supreme Court while considering the law of acquiescence in the case of Vijendra Kumar Verma vs- Public Service Commission reported in (2011)1 SCC 150 at para 24 has held as under: When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office Operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced

17 17 during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction. 12. The KAT considering the entire material on record has rightly dismissed the application filed by the petitioner holding that the notification inviting applications states that as against 22 posts reserved for Physically Handicapped persons, only Leprosy Cured

18 18 Candidates can apply. The applicant is not a leprosy cured person; he has claimed reservation under 3A category [Physically Handicapped (Locomotor) category]. It has further held that the applicant was interviewed in pursuance of the interim order passed by the KAT and he secured only 48.88% of marks in 3A category. Whereas the last selected candidate in that category has secured 51.33%. Therefore, it has come to the conclusion that his candidature could not be considered in Leprosy Cured Candidates category against the reservation made in the notification. The Appointing Authority is in a better position to determine which post has to be reserved for the particular category of the physically handicapped person keeping in view the nature of work attached to the post. The finding of fact recorded by the KAT based on the material on record is in accordance with law. The appellant has not made out any case so as to interfere with the finding recorded by the Tribunal while exercising the writ

19 19 jurisdiction under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is dismissed. Sd/- JUDGE Sd/- JUDGE Nsu/-