Partly allowed

Smt. Anita D/O Shankar Joshi v. the State of Karnataka

Karnataka HC15 Nov 2018WP/111745/2017

Case brief

AI extract

What is this about?

This High Court allowed a writ petition quashing the Tribunal's order rejecting a petitioner's claim for reservation as the wife of a disabled Ex-serviceman under Rule 9. The Court held the petitioner was entitled to the quota but could not grant specific appointment relief due to lapsed time and failure to pursue earlier directions.

What did the court decide?

Quashed the impugned order of the Tribunal. Allowed the writ petition on the ground of entitlement to reservation but declined specific appointment relief due to age limits and delay.

Smt. Anita D/O Shankar Joshi Vs the State of… — Service and Employment | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2018

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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WRIT PETITION No.111745/2017 (S-KAT)

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BETWEEN:

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SMT.ANITA D/O SHANKAR JOSHI, W/O MADHAV KULKARNI, AGED ABOUT 47 YEARS, OCC: HOUSEWIFE, R/AT: MURGOD, TQ: SAVADATTI, BELGAUM DISTRICT. ... PETITIONER

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(BY SRI MRUTYUNJAYA S.HALLIKERI, ADVOCATE)

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AND

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THE STATE OF KARNATAKA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, VIKASA SOUDHA, DR.AMBEDKAR VEEDHI, BENGALURU-560001.

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THE DIRECTOR, DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, 1^ST FLOOR, M.S. BUILDING, DR.AMBEDKAR VEEDHI, BENGALURU-560001.

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THE KARNATAKA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, UDYOGA SOUDHA, BENGALURU-560001. ...RESPONDENTS

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(BY SRI RAVI HOSAMANI, AGA FOR R1 AND R2; SRI K.L.PATIL, ADVOCATE FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 04.07.2017 PASSED BY THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU IN APPLICATION NO.5094/2016, VIDE ANNEXUREA; ALLOW THE APPLICATION NO.5094/2016 FILED BEFORE THE HON'BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU VIDE ANNEXURE-B.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:

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O R D E R

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Though this writ petition is listed for

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preliminary hearing, with the consent of learned counsel on both sides, it is heard finally.

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Petitioner herein was the applicant in Application No.5094/2016 before the Karnataka State Administrative Tribunal at Bengaluru (hereinafter referred to as the ‘Tribunal’ for the sake of convenience). Being aggrieved by order dated 04.07.2017 passed in the said application,

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the applicant has preferred this writ petition. At this stage itself, it may be noted that the Tribunal by the impugned order has rejected the application filed by the petitioner herein on the premise that she is not entitled to claim any reservation under Ex-servicemen quota.

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Briefly stated, the facts are that

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petitioner has been working as an Anganawadi Worker. She is married to Madhav Kulkarni who was serving in the Indian Army; he was discharged from the service of the Indian Army on account of permanent physical disability suffered by him.

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That respondent No.2-Director, Department of Women and Child Development invited applications from eligible candidates for filling up of the posts of Women Supervisors. Petitioner claiming to be an eligible candidate submitted her application seeking reservation under the quota meant for Exservicemen. According to the petitioner, she was

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entitled to such reservation being the wife of an Ex-serviceman who was permanently disabled while serving in the Armed Forces of the Union. Petitioner was selected for interview and her name also figured in the provisional selection list published by the respondents at Sl.No.124, though her name was shown as “Anil Shankar Joshi” instead of “Smt.Anita Shankar Joshi”. However, respondents excluded her name in the final list published on 23.11.2009. Her name also did not figure in the additional final list. Petitioner made a representation seeking an explanation for exclusion of her name, to which an endorsement dated 23.11.2009 was issued stating that reservation under Ex-servicemen quota was applicable only to the members of the person who had died or suffered from permanent physical disability while serving in the Armed Forces of the Union and that the permanent disability of petitioner’s husband was only 20%.

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Petitioner being aggrieved by the said endorsement dated 23.11.2009 filed W.P.No.65647/2010 before this Court seeking quashing of the same. This Court by its order dated 16.08.2010 quashed the impugned endorsement and directed the respondents to consider the application filed by the petitioner to the post of Woman Supervisor under Exservicemen quota, if the said post was available in the said category and if such post was not available as on that date, petitioner to be given preference at least in the next selection. According to the petitioner, she learnt that there were indeed vacancies in the post of Woman Supervisor and she made a representation for her appointment to the said post. She also filed W.P.No.82825/2013 seeking a direction to

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consider her case for appointment as a Woman Supervisor with all consequential benefits. This Court by order dated 30.03.2016 dismissed the

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writ petition reserving liberty to the petitioner to approach the Tribunal and seek necessary relief. Subsequently the petitioner filed an application before the Tribunal in the year 2016. By the impugned order dated 04.07.2017, the Tribunal has dismissed petitioner’s application holding that she is not entitled to reservation under the quota of Ex-servicemen. Being aggrieved, petitioner has presented this writ petition.

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We have heard learned counsel for the petitioner and learned Addl.Government Advocate appearing for respondent Nos.1 and 2 and learned counsel for respondent No.3 and perused the material on record.

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Petitioner’s counsel drew our attention to Rule 9 of the Karnataka Civil Services (General Recruitment) Rules, 1977 (hereinafter referred to as the ‘Rules’, for the sake of brevity) to contend that the said Rule begins with a non-obstante

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clause and expressly makes reservation in every recruitment process under the said Rules for Ex-servicemen and that the said reservation extends not only to the Ex-servicemen as such but also to members of the families of the person who, while serving in the Armed Forces of the Union were, either killed or permanently disabled. The expression ‘members of the family’ has been explained to mean, the wife or husband, as the case may be, and children and step children wholly dependent on the person who was serving in the Armed Forces of the Union. That the petitioner herein is the wife of the Ex-servicemen who was rendered permanently disabled while serving in the Indian Army. Therefore, she was entitled to reservation in the quota meant for Ex-servicemen and that the Tribunal without reference to Rule 9 of the Rules has erroneously dismissed petitioner’s application.

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He further submitted that the order of

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the Tribunal is contrary to the order of this Court passed in W.P.No.65647/2010 wherein this Court had quashed the endorsement issued by the second respondent which was to the effect that she was not entitled any reservation in the quota meant for Ex-servicemen and had directed consideration of her case. Learned counsel for petitioner further submitted that indeed there were vacancies available in the quota meant for Ex-servicemen and the respondents could have considered the case of the petitioner and appointed the petitioner to the post of Woman Supervisor, but they did not do so. Even in the next selection, which was notified by the respondents, the case of the petitioner was not considered as the petitioner was unable to upload her application, as it was an online application, on account of being over aged. As a result, injustice has been caused to the petitioner by the

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respondents and petitioner’s right to be appointed as a Woman Supervisor has been frustrated. Petitioner’s counsel therefore contended that this Court may quash the order passed by the Tribunal and direct respondents to consider the case of the petitioner and to appoint the petitioner to the post of Woman Supervisor.

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Per contra, learned Addl.Government Advocate appearing for respondent Nos.1 and 2 very fairly submitted that Rule 9 of the Rules permits reservation for Ex-servicemen in a direct recruitment in the services of the State which extends not only to the Ex-servicemen as such but also to the members of the family as defined under the Rule. That the petitioner’s case could have been considered under the said Rule and that the endorsement issued by the second respondent was rightly quashed by this Court. But the petitioner failed to take steps seeking

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consideration of her case for appointment by filing an appropriate application before the Tribunal, instead petitioner approached this Court in W.P.No.82825/2013 (S-RES) and this Court rightly relegated the petitioner to the Tribunal for seeking an appropriate relief. The order passed in the said writ petition was on 30.03.2016 and thereafter the petitioner approached the Tribunal, but without seeking the appropriate relief and in the circumstances the Tribunal has passed the impugned order. He further submits that the impugned order may be contrary to the Rule 9 of the Rules, but no relief could be granted to the petitioner in this writ petition as long period of time has lapsed and the petitioner has now become over-aged and the recruitment process initiated earlier has concluded long time ago. As far as the present recruitment process initiated vide notification dated 03.03.2016 is concerned, the same would not enure to the benefit of the

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petitioner as she is over-aged. Therefore, the petitioner has not been able to upload her details and hence no specific relief could be granted to the petitioner herein.

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Learned counsel for the third respondent echoes the submission of learned Addl.Government Advocate and submits that appropriate orders may be made in this writ petition.

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Before considering the legality and correctness of the order passed by the Tribunal, it would be necessary to refer to the Rules. Rule 3 deals with method of recruitment. Rule 3-A deals with qualification in respect of Ex-servicemen, while Rule 4 deals with procedure of appointment in case of direct recruitment. The age limit for appointment is prescribed under Rule 6, while Rule 8 deals with provision for reservation of appointments or posts to members of the Scheduled Castes, Scheduled Tribes and other

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Backward Classes. Having regard to Article 16 of the Constitution of India, Rule 9 provides for reservation to Ex-servicemen and physically

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disabled persons.

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In Dilwan Singh and others V/s State

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of Haryana and others reported in (1996) 8 SCC 369, it has been observed that the object of reservation for ex-servicemen is to rehabilitate them after their discharge from the defence services. Similarly in Sansar Chand Atri V/s State of Punjab and another reported in (2002) 4 SCC 154, it has been observed that the provision for reservation in the Service Rules is meant for the benefit of ex-servicemen. The purpose is to provide them with suitable jobs in the civil services so that they may not face difficulty in adjusting themselves in civil society after leaving the defence service. Hence, the Rules should be interpreted in a purposive and

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reasonable manner so that the intent and purpose of the provision is served. It was further observed that all the ex-defence service personnel have to be treated as a class separate from other candidates for the purpose of offer of jobs and no differentiation or discrimination can be made amongst them unless such differences are real and substantial. It was further observed that a person in the army who has earned pension after putting

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in the requisite period of service before leaving the army, whether at his own request or on being released by the employer or on any ground, should be treated as an ex-servicemen who has retired from the army. Such treatment is to be meted out to all such persons irrespective of whether the nomenclature used is “released” or “discharged” or “retired”.

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Rule 9 of the Rules reads as under:

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9. Provision for Ex-servicemen and physically handicapped. (1)

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Notwithstanding anything contained in the rules of recruitment specially made in respect of any service or post, if in such rules of recruitment direct recruitment is prescribed as one of the methods of recruitment, [ten per cent of the vacancies set apart for that method in each of the categories of general merit, Scheduled Castes and Scheduled Tribes and in each of the categories among other backward classes shall be reserved for, and] shall be filled by direct recruitment from among ex-servicemen and members of the families of persons who, while serving in the Armed Forces of the Union, were either killed or permanently disabled.

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Explanation. – For the purpose of this sub-rule “ members of the family” means the wife or husband, as the case may be, and children and step children wholly dependent on the person who served in the Armed Forces of the Union.

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Armed Forces of the Union is defined in

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Section 2(b) to mean the Naval, Army and Air Forces of the Union. Therefore, on a reading of the said Rule, it is noted that the said Rule begins with a non-obstante clause. It is by way of an exception to the eligible persons to be considered for appointment to a post under the services of the State in a direct recruitment. That a percentage of the vacancies is set apart for ex-servicemen in each of the categories of general merit, Scheduled Castes and Scheduled Tribes and in each of the categories among other backward classes is also reserved for and has to be filled by direct recruitment from among ex-servicemen and members of the families of persons who, while serving in the Armed Forces of the Union, were either killed or permanently disabled. The expression “members of the family” means the wife or husband, as the case may be, and children and step children wholly dependent on the person

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who served in the Armed Forces of the Union. Therefore, even on a plain reading of the Rule, it becomes apparent that reservation for Ex-servicemen to an extent of ten per cent in each of the categories is not only for the Ex-servicemen, but, as stated above, also extends to the members of the family of the Ex-servicemen either killed or permanently disabled. In such circumstances, the Tribunal was not right in holding that the petitioner, being the wife of the Ex-serviceman was not entitled to reservation in the quota meant for Ex-servicemen. The Tribunal has considered the definition of Ex-servicemen in Rule 2(1) of the Rules, but has failed to note Rule 9 of the Rules, which is the pertinent rule prescribing reservation not only to the

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Ex-servicemen but also family of Ex-servicemen who was killed or permanently disabled while serving Armed Forces of the Union. Therefore, on that ground alone the impugned order is liable to

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be quashed and is quashed. It is held that petitioner herein being the wife of an Ex-serviceman who was disabled and was discharged from Indian Army was entitled to be considered in the reservation quota meant for Ex-servicemen.

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The matter does not end, as earlier the petitioner had approached this Court in W.P.No.65647/2010 (S-RES) assailing endorsement dated 23.11.2009 issued by the 2^nd respondent when her name was excluded from the final selection list prepared for the post of Woman Supervisor although her name found a place in the provisional list. The endorsement stated that the petitioner herein being the wife of the Ex-serviceman could not have been granted reservation in quota meant for Ex-servicemen. The said endorsement was illegal and was contrary to Rule 9 of the Rules. Ex facie the endorsement

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dated 23.11.2009 was illegal as the petitioner’s husband indeed suffers more than 20% permanent disability and therefore petitioner was entitled to be considered in the reservation quota meant for Ex-servicemen under Rule 9. Therefore, this Court quashed the said endorsement. But by then, respondent-authority contended that the post of supervisor had already been filled in the quota meant for Ex-servicemen. In the circumstances, this Court directed that petitioner’s case be considered in the event of any post available in the said category, and if not, to consider her case in the next selection list by giving her preference.

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Thereafter, petitioner did not take steps to seek consideration of her case in the Ex-servicemen quota, having regard to the fact that her name was included in the provisional selection list and was thereafter excluded in the final selection list. But petitioner filed

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W.P.No.82825/2013 (S-RES) before this Court

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seeking a direction to appoint her as a Woman Supervisor and give her all consequential benefits. This Court, vide order dated 30.03.2016, rightly dismissed the writ petition reserving liberty to the petitioner to approach the Tribunal and seek necessary relief. When the petitioner approached the Tribunal, she sought for appointment to the post of Woman Supervisor pursuant to notification dated 03.03.2016 in terms of order dated 16.08.2010 passed in W.P.No.65647/2010 (S-RES) in Ex-servicemen category. But by then, the petitioner was over-aged and did not meet the age criteria as stipulated in Rule 3 of the Rules. But, the Tribunal has dismissed the application filed by the petitioner herein stating that petitioner was not entitled to be considered in the Ex-servicemen quota which is incorrect. Hence, we have quashed the said order, but we are unable to give any relief to the petitioner as the petitioner is over-

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aged and does not meet the age criteria prescribed under Rule 3 of the Rules so as to give any direction to consider her case pursuant to notification dated 03.03.2016 under

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Ex-servicemen quota. Further petitioner did not take any step in time to consider her case in the earlier recruitment which had taken place in which petitioner’s name found a place in the provisional selection list. Had the petitioner taken steps to re-include her name in the final selection list having regard to the order passed by this Court in W.P.No.65647/2010, possibly the petitioner would have got the relief that she is now seeking in this writ petition. As observed in W.P.No.82825/2013 by this Court, this is an unfortunate case where the petitioner has knocked the doors of justice in 2010 and though was granted certain relief by this Court, on account of not taking steps for seeking the actual relief by seeking implementation of the direction issued by this Court has landed herself in

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this position. In the circumstances, the writ

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petition is allowed in part on the aspect of petitioner being entitled to be considered under Rule 9 under the Recruitment Notification and her

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name ought to have been included in Final Select List dated 23.11.2009 and the Tribunal was not right in holding she was not entitled to be considered in the category of ex-servicemen. But insofar as Notification dated 03.03.2016 is concerned petitioner is not eligible to apply for the post of Woman Supervisor as she does not fulfill the age criteria as she is above the upper age limit.

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Parties to bear their respective costs.

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SD/JUDGE

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SD/JUDGE

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CLK/MNS

Smt. Anita D/O Shankar Joshi v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt. Anita D/O Shankar Joshi v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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