Allowed

Shivayogappa Nimbanna Anaji, v. Karnataka Public Service Commission

Karnataka HC9 Mar 2020WP/100843/2017

Case brief

AI extract

What is this about?

A Division Bench quashed the Administrative Tribunal's dismissal of a reservation claim. The Court held the petitioner was eligible for rural quota as he studied in Haveri before it was notified as a smaller urban area, and official certificates issued at that time were valid.

What did the court decide?

Set aside the order of KSAT dated 02.01.2017; quash the orders of Deputy Director and KPSC dated 19.02.2011 and 21.04.2010; direct consideration for appointments under Rural Quota.

Shivayogappa Nimbanna Anaji, Vs Karnataka Public… — Education and Admissions | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF MARCH, 2020

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PRESENT

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THE HON’BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MS. JUSTICE JYOTI MULIMANI

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WRIT PETITION NO.100843/2017(S-RES)

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BETWEEN:

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SHIVAYOGAPPA NIMBANNA ANAJI, S/O NIMBANNA ANAJI,

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AGED ABOUT 40 YEARS, R/O OPP. ICICI BANK, P.B.ROAD, VIDYANAGAR, HAVERI-581110.

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... PETITIONER

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(BY SRI.UMESH C.AINAPUR, ADV.)

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AND

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KARNATAKA PUBLIC SERVICE COMMISSION, REP.BY ITS SECRETARY,

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UGYOGA SOUDHA, BENGALUR-01.

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THE COMMISSIONER,

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DEPARTMENT OF PUBLIC INSTRUCTIONS, DHARWAD DIVISION, DHARWAD.

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THE DEPUTY DIRECTOR, PUBLIC INSTRUCTIONS, HAVERI DISTRICT.

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... RESPONDENTS (BY SRI.K.L.PATIL, ADV. FOR R1,

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SRI.G.K.HIREGOUDAR, GA FOR R2 & R3)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 02.01.2017 PASSED BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL, BENGALURU IN APPLICATION NO.2862/2013, PRODUCED AT ANNEXURE-A

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AND ALLOW THE APPLICATION NO.2862/2013 ON THE FILE OF KARNATAKA ADMINISTRATIVE TRIBUNAL, BENGALURU PRODUCED AT ANNEXURE-B.

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THIS PETITION COMING ON FOR HEARING THIS DAY, S.SUJATHA J., MADE THE FOLLOWING:

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ORDER

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This writ petition is directed against the order passed by the Karnataka State Administrative Tribunal at Bengaluru (for short “KSAT”) dated 02.01.2017 in application No.2862/2013 whereby the KSAT has dismissed the application filed by the petitioner under Section 19 of the Administrative Tribunals Act, 1985 challenging the memorandum passed by the Deputy Director of Public Instructions and the endorsement dated 19.02.2011 issued by the Karnataka Public Service Commission.

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The petitioner claims that he has studied 1^st standard to 10^th Standard at Haveri and completed his SSLC examination during March 1990. Respondent No.1 issued notification dated 05.12.2007 for selection and appointment of Second

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Division Assistants (SDA) and the petitioner claiming to be eligible and qualified for the appointment to the post of SDA, participated in the selection process. The petitioner had claimed reservation in III-B, Kannada medium and rural quota based on the certificate issued by the competent authority. It is submitted that the petitioner has secured 232.50 marks in the competitive examination conducted by respondent No.1. Respondent No.1 has called the petitioner for verification of the documents and thereafter published a provisional selection list and final selection list dated 06.05.2009 and 22.07.2009 respectively. Respondent No.1 had selected the petitioner considering his merit under rural quota and the petitioner was assigned to the Department of Public Instructions, Dharwad Division, Dharwad vide endorsement dated 07.08.2009. Respondent No.2 intimated the petitioner’s appointment and posted as

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SDA at Government Urdu High School, Kaginele, Byadagi Taluk, Haveri District vide order dated 15.09.2009. Pursuant to that, petitioner reported to respondent No.3 along with all original documents for the purpose of verification. During the verification, respondent No.3 noticed that the petitioner has studied from 1^st standard to 10^th standard at Haveri and accordingly, reported to respondent No.2 stating that the rural reservation of the petitioner cannot be considered vide order dated 29.10.2009. Respondent No.2 instructed respondent No.3 to ascertain the claim of the petitioner under rural quota and as such, respondent No.3 held that the petitioner cannot be issued with the appointment order under rural quota, as Haveri was not the rural area.

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It is the contention of the petitioner that, even otherwise he was eligible for selection in the order of merit, hence, requested respondent No.1 to consider his claim and resolve the anomaly.

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Respondent No.1 vide endorsement dated 19.02.2011 rejected the claim of the petitioner. Being aggrieved, the petitioner approached the KSAT in application No.2862/2013. The KSAT dismissed the application. Hence, the present writ petition.

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The learned counsel for the petitioner contended that KSAT failed to consider the relevant aspect that the petitioner has studied from 1^st standard to 10^th standard and completed SSLC examination during March 1990. That the place ‘Haveri’ came to be notified as Smaller Urban Area and Haveri Municipality vide notification dated 13.10.1995 and further came to be notified as Haveri City Municipal Council vide notification dated 05.12.2003. Hence, the competent authorities after verification have issued the rural certificate to the petitioner. Placing reliance on Section 2 of the Karnataka Reservation of Appointments of Posts (in the Civil Services of the State) for Rural Candidates

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Act, 2000 (for short ‘the Act’) submitted that, a

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person who was studied from 1^st standard to 10^th standard till qualifying examination in any area other than larger urban area, smaller urban area or transitional area specified under the Karnataka Municipalities Act, 1964 is a rural candidate. It was further submitted that KSAT has failed to consider the judgment of this Court dated 21.06.2013 passed in W.P.No.64428/2012. Non-consideration of these vital aspects has resulted in miscarriage of justice. Accordingly, seeks for interference of this Court.

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Learned Government Advocate appearing for respondent Nos.2 and 3 submitted that Haveri is a district headquarter for over a decade and it was Town Municipal Council from 1958 till 2003 when it was upgraded to City Municipal Council. Any certificate issued by the authorities contrary to these aspects would not render the Haveri as a rural area during the relevant time. Considering these material

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aspects, the KSAT has rightly dismissed the

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application which deserves to be confirmed by this Court.

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The learned counsel for respondent No.1

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adopts the arguments of the learned Government Advocate.

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We have given our anxious consideration to

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the arguments advanced by the learned counsel for

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the parties and perused the material on record.

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8. Section 2 of the Act reads thus:

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“Definitions.(1) xxxx (2) “Rural Candidate” means a candidate, who has studied.(i) from first standard to tenth standard where the qualifying examination prescribed for a post is S.S.L.C. or higher; or (ii) from first standard to qualifying examination where the qualifying examination prescribed for a post is lower than S.S.L.C.,

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in a school situated in any area other than a larger urban area, smaller urban area or transitional area specified under the Karnataka Municipal Corporation Act, 1976 or the Karnataka Municipalities Act, 1964.”

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A bare reading of this provision envisages

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that rural candidate means, a candidate, who has

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studied from 1^st standard to 10^th standard in a school situated in any area other than a larger urban area, smaller urban area or transitional and specified under the Karnataka Municipal Corporation Act, 1976 or the Karnataka Municipal Act, 1964.

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Section 3 of the Karnataka Municipalities

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Act, 1964 contemplates about the specification of smaller urban area. In terms of the said section, the Governor may subject to the provisions of Section 9 and having regard to.-

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(a) the population of any area;

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(b) the density of population of such area;

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(d) the percentage of employment in non-

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agricultural activities in such area;

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(e) the economic importance of such area; and (f) such other factors as may be prescribed;

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specify, by notification, such area to be a

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smaller urban area and such smaller urban area shall be deemed to be a municipal area.

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Section 9 of the Karnataka Municipalities Act, 1964, deals with the procedure for constitution, abolition, etc., of smaller urban areas and the same reads thus:

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“9. Procedure for constitution, abolition, etc., of smaller urban areas.- Not less than thirty days before the publication of any notification declaring any local area to be smaller urban area, or altering the limits of any such smaller urban area or declaring that any local area shall cease to be smaller urban area, the Governor shall cause to be published in the Official Gazette, in English and Kannada, and to be posted upon in the conspicuous places in the said local area in Kannada, a proclamation announcing that it is proposed to

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constitute the local area to be smaller urban area or to alter the limits of the smaller urban area in a certain manner or to declare that the local area shall cease to be a smaller urban area, as the case may be, and requiring all persons who entertain any objection to the said proposal to submit the same, with the reasons therefor, in writing to the Director of Municipal Administration within thirty days from the date of the said proclamation, and whenever it is proposed to add to or exclude from a smaller urban area any inhabited area, it shall be the duty of the municipal council also to cause a copy of such proclamation to be posted up in conspicuous places in such area. The Director of Municipal Administration shall, with all reasonable dispatch, forward every objection so submitted to the Governor.

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No such notification as aforesaid shall be issued by the Governor unless the objections, if any, so submitted are in his opinion insufficient or invalid.”

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Reading of the above said provisions would make it clear that issuance of notification under Section 3 declaring the ‘smaller urban area’ is sinequa-non. On the query made to the learned Government Advocate as to whether any notification

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was issued earlier to 19.10.1995, it is answered in the negative.

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application of the petitioner by the KSAT is that, Haveri was a town which was under the control of Municipality since 1958, later, it was considered as City Municipal Council from 2003; the entire period of studies i.e., from 1980 to 1990 from 1^st standard to 10^th standard of the petitioner was at Haveri Town Municipality. But the said reasoning is not in consonance with Section 2 of the Act as aforesaid.

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The notification dated 19.10.1995 issued by the Government of Karnataka exercising power under Section 9 of the Karnataka Municipalities Act, 1964 indicates the population of Haveri as 45,000 to 95,000. Government Circular dated 30.05.1996 contemplates that in terms of Rule 3(b) of Karnataka Civil Services (General Recruitment) Rules 1977, a candidate who had studied from 1^st standard to 10^th

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standard and cleared the examination in the rural area having population less than 50,000 as per the census of 1991 is entitled to 5% weightage. Thus, it is not in dispute that vide notification dated 19.10.1995, Haveri was declared as smaller urban area and Municipal Council and the petitioner studied from 1^st standard to 10^th standard in a school situated at Haveri from 1980-1990.

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The Division Bench of this Court in the

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case of State of Karnataka Vs D.R.Prakasha¹ while considering the rural area weightage claimed by the candidate observed that, respondent No.1 had studied from 5^th Standard to 7^th Standard at the Deepu convent School situated at Turuvekere Town, Turuvekere Taluk, Tumkur District. The petitioners therein contended that he was not entitled to be considered under General Merit (Rural). According to the petitioners therein, Turuvekere Town was not a

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1 ILR (KAR) 2007 0 221

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rural area. However, it was not in dispute that Turuvekere became a Town Panchayat area only in the year 1996 and prior to 1996, Turuvekere was a rural area. It was held that merely because Turuvekere subsequently became a Town Panchayat area in the year 1996, the candidate cannot be denied the benefit of being considered under General Merit (Rural). The reference was made to the Division Bench judgment dated 22.03.2005 passed in W.A.No.4456/2004, wherein it was held as follows:

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“the status of the school and whether it was located in a village or not is to be seen at the time when the respondent studied in the school and not on the date of receipt of the applications. If the school was located in a rural area when the respondent studied he would be eligible as a rural candidate notwithstanding that the village had later been declared a Town Panchayat.”

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In W.P.No.64428/2012, the learned single

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Judge of this Court at paragraphs 8 and 12 has held as under:

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“8. It is clear from the various government orders issued from time to time by the Government, that ‘Rural Candidate’ means the person who studied standard 1^{s t} to 10^th standard in an area other than smaller urban area, larger urban area and area under transition as notified either under Karnataka Municipal Corporation Act, 1976 or under Karnataka Municipalities Act, 1964. The petitioner has studied first standard to 10^th standard in the two schools in Haveri from 13.6.1985 to 10.4.1995. The place Haveri came to be notified as Smaller Urban Area and Haveri Municipality vide Notification No.VANAE 383, MLR 95, dated 13.10.1995 published in the Karnataka Gazette dated 19.10.1995 and it further came to be notified as Haveri City Municipal Council vide Notification dated 5.12.2003 in No.UDD 55 MLR 2003(P-2)

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12. By reading the above relevant provisions in Karnataka Municipalities Act, 1964, it is clear that any ‘smaller urban area’, ‘larger urban area’ exclusion or inclusion of such area are to be specified by notification. Such a notification specifying the ‘smaller urban area’ and declaring it to be a Municipality came to be issued by the notification published in the gazette dated 19.10.1995. By a further notification dated 5.12.2003 the place Haveri is declared as Haveri City Municipal Council. In the circumstances, earlier to 19.10.1995 there is no notification

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produced by the respondents declaring the area as such either ‘smaller urban area’ or ‘larger urban area’ or the area under transition period. The petitioner in the instant case has admittedly completed his study of 1^{s t} standard to 10^th standard as on 10.4.1995. The requirement of study in a place other than ‘smaller urban area’, ‘larger urban area’ or ‘area under transition period, is clearly fulfilled by the petitioner. in place of the notification issued by the Government specifying the area as such, the opinion of the Commissioner based on the meeting proceedings, which is the sole basis to issue the impugned endorsement cannot be relied upon to state that the place Haveri was a City area when the petitioner studied his 1^{s t} standard to 10^th standard..”

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The rural candidate certificate has been issued in favour of the petitioner by the Head Master of the school and is countersigned by the Block Education Officer. It is at the time of verification of the documents, the respondents have come to a conclusion that the petitioner is not entitled to the benefit of rural candidate. Indeed, there is no dispute regarding rural certificate issued by the Head Master and countersigned by the Block

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Education Officer. It is based on the said certificate the petitioner has proceeded to take up the examination. In the absence of any withdrawal of such rural certificate by the competent authority, the interpretation given by the respondents placing reliance on the opinion of the Commissioner based on the meeting proceedings has no relevancy. Issuance of the certificate by the authorities has certain sanctity and the same cannot be ignored or interpreted while verification of the documents. Notification issued under the provisions of the relevant Acts as discussed above, declaring the area as ‘smaller urban area, ‘larger urban area’ has precedence and has binding effect rather than the resolution passed in the meeting proceedings held by the council. It is significant to note that the circular dated 30.05.1996 issued by the Government of Karnataka further supports the case of the petitioner.

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The KSAT referring to the submissions of

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the learned government pleader that Haveri was a Town Municipal Council from 1958 till 2003 and the certificate produced and relied upon by the applicant which refers to the place of study as “ºÁªÉÃj ¥ÀlÖt” proceeded to consider Haveri as an urban area at the relevant time. Mere mentioning of the “ºÁªÉÃj ¥ÀlÖt” in the certificate would not confer the status of urban area to Haveri unless the notification as prescribed under Section 3 of the Karnataka Municipalities Act, 1964 is issued with reference to the definition of “Rural Candidate” as envisaged in the Act, 2000.

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Hence, we are of the considered opinion

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that the order impugned suffers from infirmity and the same cannot be approved. In the result, the writ petition succeeds; order of the KSAT dated 02.01.2017 at Annexure-A is set aside. Consequently, the order dated 21.04.2010 passed by the 3^rd Respondent-Deputy Director of Public

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Instructions, Haveri and the order passed by the 1^st respondent-KPSC dated 19.02.2011 are quashed. Respondents shall consider the appointment of the petitioner for the post of SDA under the Rural Quota in terms of the Notification issued by the Government of Karnataka dated 19.10.1995 and the Circular dated 30.05.1996 referred to above.

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Compliance shall be made in an expedite manner in any event not later than eight weeks from the date of receipt of certified copy of this order.

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Sd/JUDGE

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Sd/JUDGE

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MBS/-

Shivayogappa Nimbanna Anaji, v. Karnataka Public Service Commission

Case brief

What is this about?

What did the court decide?

Shivayogappa Nimbanna Anaji, v. Karnataka Public Service Commission

Case brief

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What did the court decide?

What the court decided

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