Dismissed

The State of Karnataka through Pri Secr Dept of Home Vidhana Soudha. v. Ramappa. Kalli.

Karnataka HC5 Sept 2023WP/102491/2022

Case brief

AI extract

What is this about?

This petition challenges an Administrative Tribunal order reinstating a police constable discharged for alleged lack of qualifications. The High Court found the Tribunal correct, as the circular imposing new criteria was not part of the recruitment notification, violating principles of natural justice and equality.

What did the court decide?

Petition dismissed; Tribunal order allowing reinstatement of respondent upheld.

The State of Karnataka through Pri Secr… — Pension and Retirement Benefits | Karnataka HC (2023)

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NC: 2023:KHC-D:10067-DB WP No.102491 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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WRIT PETITION NO.102491 OF 2022 (S-KAT)

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BETWEEN:

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THE STATE OF KARNATAKA THROUGH PRINCIPAL SECRETARY, DEPARTMENT OF HOME, VIDHANA SOUDHA, BENGALURU-560001.

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THE DEPUTY INSPECTOR GENERAL OF POLICE, RECRUITMENT AND CO-ORDINATION, CIVIL POLICE CONSTABLE COMMITTEE, BENGALURU-560001.

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THE SUPERINTENDENT OF POLICE GADAG, GADAG DISTRICT -587101.

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JAGADISH T R HIGH COURT OF KARNATAKA DHARWAD BENCH 2023.10.10 11:13:08 +0530

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THE PRINCIPAL KARNATAKA STATE POLICE TRAINING SCHOOL, DHARWAD DISTRICT, DHARWAD-580002.

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(BY SRI.G.K.HIREGOUDAR, GOVT. ADVOCATE)

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…PETITIONERS

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AND:

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RAMAPPA B.KALLI S/O. BHARAMAPPA, AGED ABOUT 30 YEARS, R/O: RAGHUNATHHALLI, TQ: DISTRICT: KOPPAL-583231.

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…RESPONDENT

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(BY SRI.T.M.NADAF, ADVOCATE FOR SRI.PARASHURAM R.HATTARAKIHAL AND SRI.K.H.BAGI, ADVOCATES)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE A WRIT ORDER OR DIRECTION IN THE NATURE OF CERTIORARI TO QUASH THE ORDER DATED 28.01.2022 PASSED BY THE HON’BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BELAGAVI IN APPLICATION NO.10666/2021 (ANNEXURE.B TO THE WRIT PETITION).

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, S.R.KRISHNA KUMAR J., PASSED THE FOLLOWING:

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ORDER

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This petition by the State is directed against the impugned order dated 28.01.2022 passed in Application No.10666/2021 by the Karnataka State Administrative Tribunal, Belagavi (for short, 'the Tribunal'), whereby the said application filed by the respondent seeking quashing of the impugned suspension order dated 20.04.2021 and for a direction for his reinstatement together with all consequential benefits was allowed by the Tribunal.

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2. Heard the learned Government Advocate for the appellants and the learned counsel for the respondent.

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3. The material on record discloses that on 30.06.2018, the 3^rd petitioner issued a notification for recruitment to the post of Civil Police Constable in the

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state including Gadag District. The respondent having submitted his application along with documents relating to his educational qualification which was Three Year Diploma in Mechanical Engineering (General) which was equivalent to II PUC, he was called for written examination based on which he underwent successfully the physical standard and endurance tests and after due verification of all his documents on 28.08.2019 including verifying his educational qualification documents, the respondent was selected to the post of Police Constable as per the list/order dated 10.02.2020 and was posted for training. Subsequently, the respondent received a showcause notice dated 08.02.2021 from the petitioner which carried a reference to a State Government Circular and stated that the respondent should also be successful in a course conducted by NIOS (distance education mode) and should have passed the said course with one language and one subject as held in the PU Board examinations. Though the respondent submitted his reply, the petitioner proceeded to discharge the respondent from service vide

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impugned order dated 20.04.2021 which was assailed by him before the Tribunal which proceeded to allow the application, aggrieved by which the petitioner-State is before this Court by way of the present petition.

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A perusal of the material on record including the impugned order will indicate that it is the specific contention of the petitioner that prior to issuance of the recruitment notification dated 30.06.2018, the State Government had issued a Circular dated 27.02.2018 which required that candidates including the respondent should have passed an additional subject and language in a course conducted by NIOS for the purpose of claiming eligibility for selection. It was therefore contended that since the said circular dated 27.02.2018 was anterior in point of time to the recruitment notification dated 30.06.2018 pursuant to which the respondent was selected and as he had not passed the said course conducted by NIOS, his very selection was illegal resulting in passing the impugned order which did not warrant interference by the Tribunal.

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After hearing both sides, the Tribunal came to the conclusion that the said circular dated 27.02.2018 was not an amendment to the government order dated 27.01.2015 which treated that a Three Year Diploma course after SSLC

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was equivalent to PUC for the purpose

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recruitment/selection to the post of a Police Constable and consequently, the subsequent circular dated 27.02.2018 did not override or supercede the earlier government order

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dated 27.01.2015 and could not be made the basis to prescribe additional eligibility criteria not contained in the Government Order. The Tribunal also noticed that the circular dated 27.02.2018 did not find a place in the recruitment notification dated 30.06.2018 and in the absence of the same, the eligibility criteria prescribed in the circular dated 27.01.2018 could not be incorporated into the recruitment notification dated 30.06.2018 nor be made the basis to come to the conclusion that only persons who passed the additional course conducted by NIOS were

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eligible to get recruited under the recruitment notification

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dated 30.06.2018. The Tribunal also referred to judgments of the Apex Court in order to hold that the selection procedure having been stipulated in the recruitment notification dated 30.06.2018, the selection process has to be conducted strictly in accordance with the same which has to be scrupulously maintained without any power to relax or add to the said procedure. It was further held by the Tribunal that even in the event that the said procedure can be changed, it was incumbent upon the petitioner to not only give due publicity to the same but also intimate the candidate about the additional eligibility criteria. In the facts of the instant case, the Tribunal recorded a finding that neither under the recruitment notification dated 30.06.2018 nor subsequently, the respondent and other candidates were never informed about the circular dated 27.02.2018 which prescribed the additional eligibility criteria of passing NIOS course. Under these circumstances, the Tribunal upheld the claim of the respondent and quashed the impugned suspension order

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and directed reinstatement of the respondent together with

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all consequential benefits by holding as under:

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“5. Heard the learned counsel for the applicant and government advocate for respondents. Perused the pleadings and the documents produced along with pleadings. From the pleading it is clear that the applicant challenged the order dated 20.04.2021 issued by the 3^rd respondent discharging the applicant from service on the ground that applicant has not produced the documents to show that he has passed the requisite examinations as per Government Circular dated 27.2.2018. It is relevant to note here that the Division Bench of this Tribunal in A.No.10436 of 2020 has considered the similar circumstances in the case of one Sri. Ravi Kumar B.Kankanameli. In A.No.10436 of 2021 filed by said Sri.Ravi Kumar, the Tribunal after analyzing the order of discharge order has quashed the same granting the benefits to the applicant therein. I consider it appropriate to extract the relevant portions of the order in A.No.10436 of 2021 which read as follows:

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“….. ……….

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4. Applicant further states that he was selected as per the eligibility of the

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candidates notified in the Recruitment Notification 05//Nemakathi-4/2018-19 and it is not permissible to raise a ground which was not notified earlier to disqualify him after appointment. In this regard learned counsel for applicant relied on the decisions rendered by the Hon’ble Supreme Court in the case of Bedanga Talukdar vs Saifuddin Khan and others (2011)2 SCC 85 and the decision in N.T. Bevinkatti and others vs Karnataka Public Service commission and others, (1990)3 SCC 157. Reference is also made to the government order bearing No DPAR 147 SeAaNe 2014 dated 27.1.2015 in which the government has declared that three-year diploma course after the SSLC was considered as equivalent to Pre-university examination. Thereby the qualification of three-year diploma which was obtained by the applicant after SSLC as per Annexures A4 to A10 is equivalent to PUC. Since applicant has fulfilled the qualification prescribed under the recruitment Notification his case has to be considered for appointment to the post of civil police constable. Referring to the Circular the Applicant further states that he has studied three year diploma and the said course/qualification was considered as equivalent to PUC. Since the requirement or prescription mentioned in the Circular of 27.2.2018 is not mentioned in the recruitment notification, insisting on the same is not permissible after selection. Applicant also urged that the equivalence declared by the government is a subsequent declaration and it is also is not permissible to alter additional qualification by issuing a Circular. Based on such alteration considering him as ineligible for selection is illegal. Applicant further states

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that admittedly the 2^nd respondent has not specified the qualification mentioned in the Circular dated 27.02.2018 in the notification at annexure A1 in response to which the applicant applied for the post of civil police constable, he was selected and appointed. Whereas in the subsequent recruitment for the year 2019-20 as per Annexure A20 at para 6 of the notification specifically mentions about the Circular of 27.2.2018 and which are the qualifications considered as equivalent. From this it is clear that action of the 2^nd respondent in considering the qualification which was not notified in earlier notification and cancelling the appointment based on clarification issued in the Circular is illegal. …..

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7. The 2^nd respondent has issued notification inviting the applications for recruitment to the post of Civil Police Constable for the year 201819 as per Annexure A1. The eligibility with regard to educational qualification at para 6 as fallows.

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“6, «zÁåºÀðvÉ: ¥ÉÇ°Ã¸ï PÁ£Àìl§¯ï £ÁUÀjPÀ (¥ÀÅgÀÄµÀ ªÀÄvÀÄÛ ªÀÄ»¼Á) ºÀÄzÉÝUÀ¼À DAiÉÄÌAiÀÄ ¸À®ÄªÁV PÀArzÉ 1gÀ°è £ÀªÀÄÆ¢¹gÀÄªÀ ªÀÈAzÀ ªÀÄvÀÄÛ £ÉÃªÀÄPÁw (wzÀÄÝ¥Àr) ¤AiÀÄªÀÄ 2009 gÀ ¥ÀæPÁgÀ C¨sÀåyðUÀ¼ÀÄ ¦AiÀÄÄ¹ CxÀªÁ vÀvÀìªÀiÁ£À «zÁåºÀðvÉAiÀÄ£ÀÄß Cfð ¸À°è¸À®Ä ¤UÀ¢¥Àr¹gÀÄªÀ PÉÆ£ÉAiÀÄ ¢£ÁAPÀ CazÀgÉ 30.6.2018 PÉÌ ºÉÆA¢gÀ¨ÉÃPÀÄ (ªÀiÁf ¸ÉÊ¤PÀ C¨sÀåyðUÀ¼ÀÄ ¥ÀæªÀiÁt ¥ÀvÀæªÀ£ÀÄß ¢£ÁAPÀ 30,6,2018 gÉÆ¼ÀUÉ ºÉÆA¢zÀÝgÉ, CAvÀºÀ C¨sÀåyðUÀ¼ÀÄ, C¨sÀåyðvÀ£ÀªÀ£ÀÄß ªÀiÁvÀæ ¥ÀjUÀtÂ¸À¯ÁUÀÄgÀÄªÀÅzÀÄ.”

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8. The qualification prescribed in the notification as specified under Cadre and Recruitment Rules of 2009 is also pass in PUC or equivalent examination.

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In view of qualification prescribed for the post is pass in PUC or an equivalent qualification, and the government order No DPAR 147 SeAaNe 2014 dated 27.01.2015 states that candidates with three years Diploma course after SSLC be considered as equivalent to Pre University Certificate, as such the 2^nd respondent has considered the applicant initially as eligible. But later has taken a different view. It is a settled law that eligibility for consideration has to be specifically mentioned and made known to the candidates. The decision of Hon’ble Supreme court of India in the case of State of Punjab vs

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Dr. Vinay Kumar Khullar (2010)13 SCC 481 at para 15.

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“15. A candidate must be made known about the requirements to be fulfilled by him and cannot be exposed to unknown liabilities or limitations. If the intention was to make the amendment Notification dated 30.7.2007 applicable to the 2008 PG admissions, the Prospectus should have referred to that amendment Circular dated 30.7.2007, while mentioning the Circular dated 13.5.1996. Nothing prevented the Government from stating that the NOC should be subject to the conditions mentioned in the Circular dated

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13.5.1996 as amended by the Circular dated 30.7.2007. It should be noted that the amendment Circular dated 30.7.2007 was issued after the 2007 admissions and was sought to be made applicable for the first time in respect of the 2008 admissions. Therefore, the candidates for 2008 admissions would not know about the said amendment Circular dated 30.7.2007 unless it was mentioned in the Prospectus. The candidates would have bona fide proceeded on the basis that eligibility for the NOC was in terms of the Government Circular dated 13.5.1996. The fact that provisional NOCs had been issued to them also would have led them to believe that prima facie they were eligible to get the NOCs. …”

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9. The Hon’ble Supreme Court in Bendanga Talukdar vs. Saifudaullah Khan & Others has after referring that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India observed that “…..Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. When a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained and there cannot be any relaxation in the terms and conditions of the advertisement unless such power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the

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power of relaxation if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. … “.

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10. From the observations quoted above, it is clear that in the absence of Notification for recruitment not mentioning the conditions of eligibility it is not permissible for the authorities to insist upon the candidates to comply with the same and later disqualify them for not possessing the qualifications which are not notified. It is also clear from the Circular dated 27.02.2018 produced as Annexure A19 that the government by issuing the order dated 27.01.2015 has declared certain qualifications as equivalent to degree and PUC and as such the qualification of three year diploma after SSLC was equivalent to PUC at the time of appointment of the applicant. . The said government order is not amended or withdrawn. On the other hand a Circular dated 27.02.2018 is issued clarifying that the candidates who have studied three- year diploma should be successful in a course conducted by NIOS (Distance Education Mode) and should have passed the said course with one language and one subject. The circular is not an amendment to the government order dated

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27.01.2015 issued declaring the equivalence as such. The effect of the Circular can also be only prospective and without mentioning the Circular in the recruitment Notification, the selection authority cannot take a stand retrospectively and deny the applicant his rightful selection. Therefore the action of the respondent in disqualifying and discharging the applicant becomes erroneous.

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11. It is relevant to observe that equivalence of qualification as per Circular of 27.2.2018 is not notified in the notification for the year 201819, which is clear from para 6 of Notification at Annexure A1. Whereas the notification issued for the subsequent recruitment for the year 2019-20 as at Annexure A20, clearly mentions the equivalence of qualification as per the Circular of 27.2.2018, which is as follows:

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¥ÀjÃPÉë,

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2. EvÀgÉ gÁdå ¸ÀPÁgÀzÀ ¥ÀjÃPÁë ªÀÄAqÀ½UÀ½AzÀ £ÀqÉ¸ÀÄªÀ PÁè¸ï 12 ¥ÀjÃPÉë

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3. £ÁåµÀ£À¯ï E¤ìlÆåmï C¥ï M¥À£ï ¸ÀÆÌ°AUï (J£ï.LN J£ï) ªÀw¬ÄAzÀ £ÀqÉ¸ÀÄªÀ G£ÀßvÀ ¥ËqsÀ ²PÀët PÉÆÃ¸Àð /ºÉZï.J¸ï.¹.

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4. ªÀÄÆgÀÄ ªÀµÀðUÀ¼À r¥ÉÇèÃªÀiÁ CxÀªÁ JgÀqÀÄ ªÀµÀðUÀ¼À J.n.L PÉÆÃ CxÀªÁ JgÀqÀÄ ªÀµÀðUÀ¼À CxÀªÁ JgÀqÀÄ ªÀµÀðUÀ¼À ªÀÈwÛ

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²PÀët qÉÆ¥ÀèªÀiÁ (eÉ.N¹ eÉr¹ eÉJ¯ï r¹) C¨sÀåyðUÀ¼ÀÄ J£ïLNJ¸ï £À ªÀw¬ÄAzÀ £ÀqÉ¸ÀÄªÀ MAzÀÄ ¨sÁµÁ PÉÆÃ¸Àð ªÀÄvÀÄÛ MAzÀÄ ±ÉÊPÀëtÂPÀ «µÀAiÀÄzÀ°è (zÀÆgÀ PÀ°PÉ: ªÀiÁzÀjAiÀÄ°è CxÀªÁ zÀ«¥ÀÇªÀð ªÀÄAqÀ½AiÀÄÆ £ÀqÉ¸ÀÄªÀ ¥ÀjÃPÉëAiÀÄ®°è MAzÀÄ ¨sÁµÉ ªÀÄvÀÄÛ MAzÀÄ «µÀAiÀÄzÀ°è ¥ÀjUÀtÂ¸À§ºÀÄzÀÄ. GwÛÃtðgÁzÀ°è ªÀiÁvÀæ ¦AiÀÄÄ¹UÉ vÀvÀìªÀiÁ£ÀªÉAzÀÄ ¥ÀjUÀtÂ¸À§ºÀÄzÀÄ.

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12. From the above extract it is clear that the earlier Notification of 2018-19 was not specific about the equivalence of qualification. The above stipulation as per the Circular dated 27.8.2018 is specifically made applicable to the candidates participating in the subsequent notification but not the earlier Notification of 2018. In view of the decision of the Apex court in the case of state of

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Punjab vs Dr Vinay Kumar Khullar and others s and also Bedanga Talukdar’s case, supra, the action of the respondent No 3 in passing the impugned order is illegal and contrary law.

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13. Another aspect required to be considered is that even though passing of course conducted by the NIOS is not a requirement since it is not notified during the selection of the applicant, his case needs to be considered with reference to the government order dated 27.01.2015. Based on merit he was selected and appointed to the post of civil police constable and he was sent for training. After selection, since the applicant was working earlier as

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warder in the prison department he sought for permission from the concerned authorities to relive him to enable him to report as civil police constable. In view of the said request the competent authority imposed the penalty of Rs 2,30,619/- as the said request for reliving from the post of warder is contrary to terms of his earlier appointment which required that reliving from the post before 5 years was not permissible but for payment of penalty. The applicant deposited the said penalty amount to the concerned authority. The said fact was brought to the notice in the explanation submitted to the show cause notice. Urging all those grounds the applicant sought time to study the course and to furnish the document. Yet, the 3^rd respondent without considering any of the grounds in the explanation mechanically passed the impugned order. The said action is against the principles of natural justice in view of the decisions of the Hon’ble Apex Court supra.

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14. Therefore, to meet the ends of justice, we are of the view that the order passed by the respondent is illegal and contrary to law and same is violative of Articles 14 and 16 of constitution of India. Hence, we pass following;

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ORDER

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(i) Application is allowed.

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The order bearing no Sibbandi-I.CR-18.1.2018 dated 17.04.2021 Annexure A17 passed by the 3^rd

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respondent is set aside and the 3^rd respondent is directed to reinstate the applicant as civil police constable with in a period of 30 days from the date of receipt of copy of this order with all the consequential benefits. “

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6. A reading of the grounds urged A.No.10436/2021 and the case urged by the applicant shows that the applicant’s case is squarely covered by the facts and circumstances of A.No.10436/2021. The learned Additional Government Advocate fairly conceded that the matter is similar and the present application may be disposed of in terms of the order in A.No.10436/2021.

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In view of the above, the following order is passed:

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ORDER

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(i) Application is allowed.

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(ii) The order bearing NO .¹§âA¢:1 (J)175:2021/ D¥ÀäuÉÆ. 292/2021 dated 20.04.2021 Annexure A19 passed by the 3^rd respondent is set aside and the 3^rd respondent is directed to reinstate the applicant as civil police constable within a period of 30 days from the date of receipt of copy of this order with all the consequential benefits.

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Upon re-appreciation, re-evaluation and

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reconsideration of the entire material on record, we are of

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the view that the impugned order passed by the Tribunal

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does not suffer from any illegality nor infirmity nor can the same be said to be capricious or perverse warranting interference by this Court in the present petition, particularly, when the circular dated 27.02.2018 was never intimated or brought to the notice of any candidate including the respondent either before, during or after the recruitment process and, on the other hand, the petitioner selected/recruited the respondent after due verification of all his documents and being satisfied with his eligibility on 10.02.2020, almost two years after issuance of the aforesaid circular dated 27.02.2018. Under these circumstances, we do not find any merit in the petition and the petition is accordingly dismissed.

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Sd JUDGE

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Sd JUDGE

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KMS List No.: 1 Sl No.: 0

The State of Karnataka through Pri Secr Dept of Home Vidhana Soudha. v. Ramappa. Kalli.

Case brief

What is this about?

What did the court decide?

The State of Karnataka through Pri Secr Dept of Home Vidhana Soudha. v. Ramappa. Kalli.

Case brief

What is this about?

What did the court decide?

What the court decided

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