Allowed

The Appointing Authority and Deputy Secretary v. State of Karnataka

Karnataka HC3 Jul 2024WP/27009/2023

Case brief

AI extract

What is this about?

Writ petitions challenged a Karnataka Administrative Tribunal order quashing appointments of Grama Panchayat Secretaries Grade-II and Second Division Accounts Assistants made via options under a 2012 memorandum. The High Court held the selection, initiated in February 2021, was correctly governed by the then-prevailing memorandum, not the rules notified in April 2022, set aside the Tribunal's orde

What did the court decide?

Tribunal's order dated 16.10.2023 in Application No.4695/2022 set aside; the Tribunal application dismissed.

The Appointing Authority and Deputy Secretary Vs… — Service and Employment | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 03^RD DAY OF JULY, 2024

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PRESENT

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THE HON'BLE MRS. JUSTICE ANU SIVARAMAN

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AND

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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WRIT PETITION NO. 27009 OF 2023 (S-KSAT) C/W. WRIT PETITION NO. 28208 OF 2023 (S-KSAT)

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IN WRIT PETITION NO. 27009 OF 2023 BETWEEN:

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THE APPOINTING AUTHORITY AND DEPUTY SECRETARY BENGALURU URBAN ZILLA PANCHAYAT S. KARIYAPPA ROAD, BANASHANKARI BENGALURU-560 070

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… PETITIONER

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(BY SHRI. MAHESH R UPPIN, ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYAT RAJ, M.S. BUILDING DR B R AMBEDKAR VEEDHI BENGALURU-560 001

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2 . SRI. P. SOMANNA S/O PILLAPPA AGE 47 YEARS WORKING AS BILL COLLECTOR MARANAHALLI GRAMA PANCHAYAT YELAHANKA TALUK BENGALURU URBAN DISTRICT-562 149 R/O CHOKKANAHALLI, BENGALURU POST JALA HOBLI, YELAHANKA TALUK

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BENGALURU URBAN DISTRICT-562 149

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3 . SRI. CHANDRASHEKAR K. AGE: MAJOR SECOND DIVISION ACCOUNTS ASSISTANT HANDENAHALLI GRAMA PANCHAYATH ANEKAL TALUK BENGALURU URBAN DISTRICT-562 107

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4 . SRI. D.M. SRINIVASAIAH AGE: MAJOR SECOND DIVISION ACCOUNTS ASSISTANT DODDAJALA GRAMA PANCHAYAT YELAHANKA TALUK BENGALURU URBAN DISTRICT-562 157

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5 . SRI. GANAPATI HEGDE AGE: MAJOR SECOND DIVISION ACCOUNTS ASSISTANT BENGALURU GRAMA PANCHAYAT YELAHANKA TALUK BENGALURU URBAN DISTRICT-562 157

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…RESPONDENTS

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(BY SHRI. B. RAVINDRANATH, AGA FOR R1; SHRI. K. MANJUNATH RAO BHONSLE, ADVOCATE FOR CAVEATOR/R2; SHRI. R. SUBRAMANYA, ADVOCATE FOR SHRI. B.O. ANIL KUMAR, ADVOCATE FOR R3 TO R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 16.10.2023 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU IN APPLICATION No.4695 OF 2022 MARKED AS ANNEXURE "D" BY ISSUING A WRIT IN THE NATURE OF CERTIORARI AND ETC.

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IN WRIT PETITION NO. 28208 OF 2023 BETWEEN:

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1 . SRI CHANDRASHEKARA K. S/O C. KRISHNAPPA

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AGED ABOUT 55 YEARS, SECOND DIVISION ACCOUNTS ASSISTANT HANDENAHALLI GRAM PANCHAYATH ANEKAL TALUK

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BENGALURU URBAN DISTRICT-562 107

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2 . SRI. D.M. SRINIVASAIAH S/O ANJAYNAYAPPA AGED ABOUT 55 YEARS SECOND DIVISION ACCOUNTS ASSISTANT DODDAJALA GRAM PANCHAYATH YELAHANAKA TALUK BENGALURU URBAN DISTRICT-562 157

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3 . SRI. GANAPATHI HEGDE S/O MAHABALESHWARA HEGDE AGED ABOUT 55 YEARS

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SECOND DIVISION ACCOUNTS ASSISTANT BAGALURU GRAM PANCHAYATH YELAHANAKA TALUK

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BENGALURU URBAN DISTRICT-562 149

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… PETITIONERS

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(BY SHRI. R. SUBRAMANYA, ADVOCATE FOR SHRI. B.O. ANIL KUMAR, ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA REP BY ITS ADDITIONAL CHIEF SECRETARY RDPR DEPARTMENT

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VIKASA SOUDHA, BENGALURU-560 001

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2 . THE APPOINTING AUTHORITY AND DEPUTY SECRETARY BENGALURU URBAN ZILLA PANCHAYATH S. KARIYAPPA ROAD, BANASHANKARI BENGALURU-560 070

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3 . SRI. SOMANNA S/O PILLAPPA, AGED ABOUT 46 YEARS WORKING AS BILL COLLECTOR, MARANAHALLI GRAMA PANCHAYATH YELAHANKA TALUK

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BENGALURU URBAN DISTRICT-562 149 R/AT. CHOKKANAHALLI, BENGALURU POST JALA HOBLI, YELAHANKA TALUK BENGALURU URBAN DISTRICT-562 149

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…RESPONDENTS

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(BY SHRI. B. RAVINDRANATH, AGA FOR R1; SHRI. MAHESH R UPPIN, ADVOCATE FOR R2; SHRI. K. MANJUNATH RAO BHONSLE, ADVOCATE FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE JUDGEMENT DATED 16.10.2023 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN A.NO.4695/2022 (ANNEXURE-A) AND TO DISMISS THE APPLICATION FILED BY THE RESPONDENT NO.3 IN ITS ENTIRETY AND/OR AND ETC.

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.06.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING:

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ORDER

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Both these writ petitions arise from a common order of the Karnataka State Administrative Tribunal (hereinafter referred to as 'the Tribunal' for short) dated 16.10.2023 in Application No.4695/2022. W.P.No.27009/2003 is filed by the Deputy Secretary, Bengaluru Urban Zilla Panchayat, who was the appointing authority in respect of the posts of Panchayat Secretary Grade II and Second Division Accounts Assistants in Grama Panchayats while the W.P.No.28208/2023 is filed by the party respondents in O.A.

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The parties and documents are being referred to as in W.P.No.27009/2023 unless otherwise specifically stated hereinafter.

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It is submitted that the respondent No.2 in the writ petition, who was the applicant before the Tribunal and Respondent Nos.3 to 5 were the private respondents, who are the petitioners in W.P.No.28208/2023 were employees of the Bengaluru Urban Zilla Panchayat. The various posts in the Panchayats were filled up on the basis of the Karnataka General Service (Development Branch and Local Government Branch)(Cadre and Recruitment) Rules, 2008. A Government Order dated 31.03.2012 provided for the method of appointment and filling up of posts of Grama Panchayath Secretary Grade II and Second Division Accounts Assistants from among the full time employees working as Bill Collectors, Typist, Clerks and Data Entry Operators. On 11.04.2012, Ex.R1 - Official Memorandum was issued providing the mode and manner of filling up of the said posts. It is contended that as per the Official Memorandum which was produced before the Tribunal as

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Ex.R1, the preparation of the common list of candidates shall be based on their educational qualification. Further, the posts of Grama Panchayath Secretary Grade II and Second Division Accounts Assistants are to be filled up by calling for exercise of options and their willingness from persons included in the respective seniority lists to be appointed as against the said post. The clause 4 at Annexure - R1 dated 11.04.2012 reads as follows:-

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"4. The Candidate he/she mentioned in the general list shall be eligible to be recruited as Grade-2 Gram Panchayat Secretary and Second Division Accounts Assistant on the basis of educational qualification. But a person who is possessing PUC or 10+2 qualification has to be appointed to any one of the said two posts. A candidate has to be appointed to the post of Secretary-2 of the Grama Panchayat or Second Division Accounts Assistant as per his choice. There is no possibility of change of post once a person is appointed to one post. Regarding this voluntary consent letter from the candidate shall be obtained. A person to be selected to the post of Secretary Grade-2 (though he holds the qualification of SSLC/PUC) he shall put in 10 years of service and a person to be appointed to the post of Second Division Accounts assistant shall put in 08 years of service."

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It is submitted that the applicant had earlier

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exercised option on 21.04.2012 and 18.12.2017 in terms of the clause in the Official Memorandum dated 11.04.2012. It

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is contended that on 02.02.2021, the appointing authority initiated the process of recruitment to the posts of Grama Panchayath Secretary Grade-II and Second Division Accounts Assistant in accordance with the Official Memorandum dated 11.04.2012 by Annexure-R3. The applicant had exercised his option for appointment to the post of Gram Panchayath Secretary Grade-II.

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On 07.03.2022, the State Government published the draft of Karnataka General Service (Development Branch and Local Government Branch)(Cadre and Recruitment) Amendment Rules, 2021 which included the method of appointment to the post of Panchayath Secretary Grade-II and Second Division Accounts Assistant as well. These rules were notified on 01.04.2022. In the meanwhile, the process for selection initiated by the writ petitioner on 02.02.2021 continued and final seniority list of Bill Collectors of all Gram Panchayaths coming under the jurisdiction of the Bengaluru Urban District was published. The name of applicant was shown at Sl.No.6. On 25.07.2022, based on the seniority of the candidates and also the options exercised by them, the

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Government published the Select List. The applicant, who had submitted an option for appointment as Grama Panchayath Secretary Grade-II was not selected as his seniors who opted for the said post got selected. Thereafter, on 26.07.2022, the applicant submitted a representation stating that his juniors have been selected to the post of Senior Division Accounts Assistant. He thereafter filed the application assailing the selection list dated 25.07.2022 and seeking appointment to the post of Senior Division Accounts Assistant.

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After considering the contentions on either side, the Tribunal came to the conclusion that the selection was to be conducted in accordance with the amended Cadre and Recruitment Rules which were notified in April 2022. It was further held that there is no provision in the Cadre and Recruitment Rules or even in the O.M. dated 11.04.2012 for calling for options from applicants to be appointed to either to the post of Panchayat Secretary Grade-II or Senior Division Accounts Assistant. The Tribunal, therefore has quashed Annexure - A2 O.M. dated 25.07.2022 and

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Annexure - A4 O.M. dated 27.07.2022 to the extent that they concern appointment of the private respondents who were held not entitled to be appointed to the post of SDAA in terms of the seniority list dated 15.07.2022. It was declared that they shall cease to hold office as SDAA with immediate effect and stand reverted to the cadre of Bill Collector in the Grama Panchayath concerned. The prayer of the applicant for appointment to the post of SDAA stood rejected without prejudice to the applicant being considered for appointment either to the post of Grama Panchayath Secretary, Grade - II or SDAA in accordance with 2021 Recruitment Rules. The respondent No.2 was further directed to review the select list of other cadres dated 27.07.2022 to be strictly in accordance with 2021 Rules and based on seniority. Three months time was granted for compliance from the date of the order.

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The learned counsel appearing for the petitioner would contend that the said findings entered by the Tribunal were totally erroneous. It is submitted that the process of recruitment was initiated on 02.02.2021 on the basis of the

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Office Memorandum dated 11.04.2012, which was in force. In view of the fact that the amendment to the Cadre and Recruitment Rules was specifically to have effect only from the date when such rules were notified in the Official Gazette, the finding of the Tribunal that the selection had to be conducted in accordance with the Cadre and Recruitment Rules, 2021 which were notified in 2022 was completely erroneous. Further, it is contended that the finding of the Tribunal that there was no provision in the 2012 O.M. with regard to option was clearly erroneous and the order passed by the Tribunal is therefore vitiated by errors apparent on the face of the record and is liable to be set aside.

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The learned counsel appearing for the party respondents in W.P.No.27009/2023 and the petitioners in W.P.No.28208/2023 supports the contentions urged by the appointing authority. It is contented that the order of the Tribunal is clearly vitiated by errors of fact and law manifest on the face of the order and is therefore, liable to be set at naught. It contented that in the light of the specific provision of 2012 Rules that selection is to be conducted on

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the basis of the option submitted by the eligible candidates, all the findings of the Tribunal are erroneous and liable to be set aside. Further, it is contended that since the Cadre and Recruitment Rules were brought into force only with prospective effect from the date of the notification in April, 2022, the selection which was initiated in February, 2021 would, in no way, be affected by such notification of the rules.

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The learned counsel appearing for the party respondent No.2, who was the applicant before the Tribunal, would contend that Annexure - R2, which was produced by the appointing authority before the Tribunal purporting to be the option submitted by him did not bear any date and therefore, could not be acted upon. Further, it is submitted that the 2021 Cadre and Recruitment Rules did not contain any provision for option to be exercised by employees and therefore, the bifurcation of the select list on the basis of options submitted by the employees was illegal. It is contended that it is an admitted fact that the applicant was senior to the party respondents before the Tribunal and that

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he ought to have been preferred for appointment to the post of Senior Division Accounts Assistant in accordance with the Cadre and Recruitment Rules.

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We have considered the contentions advanced. The appointing authority, who has conducted the selection asserts before us that the selection was initiated by proceedings dated 02.02.2021. This aspect of the matter is not seriously disputed by the learned counsel appearing for the respondents as well. As a matter of fact, the learned counsel appearing for the petitioners in W.P.No.28208/2023 asserts that the selection was initiated on 02.02.2021 and the options were called for soon thereafter. It is contended that it was in accordance with the official memorandum in force at the relevant time i.e., Annexure - R1 produced before the Tribunal that the subject selection was carried out. The said official memorandum contains the specific clause with regard to submission of options and the conduct of this selection in accordance with the option submitted. The applicant before the Tribunal did not dispute the submission of an option by him in the selection process

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which was produced by the appointing authority as Annexure R2. The contention of the applicant was simply that selection was to have been conducted in accordance with the 2021 Rules. We notice that the 2021 Rules were notified only on April, 2022. The Rules specifically state that they are to be applicable from the date of their final publication in the official gazette.

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The learned counsel for the petitioners in W.P.No.28208/2023 has placed reliance on the following

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judgements:-

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i. N.T.Devin Katti and others vs. Karnataka Public Service Commission and others reported in (1990) 3 SCC 157;

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ii. Assam Public Service Commission and others vs. Pranjal Kumar Sarma and others reported in (2020) 20 SCC 680;

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iii. P. Mahendran and others vs. State of Karnataka and others reported in (1990) 1 SCC 411;

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iv. Karnati Ravi and another vs. Commissioner, Survey Settlements and Land Records and others reported in (2018) 12 SCC 635;

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v. Tej Prakash Pathak and others vs. Rajasthan High Court and others reported in (2013) 4 SCC 540.

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In N.T.Devin Katti and others vs. Karnataka

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Public Service Commission and others , the Apex Court

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has considered the amendment of the Recruitment Rules after the initiation of the selection process. It has held that where the amended rule or executive order makes it expressly clear that pending selections would not be governed by the amendment, there is no question of applying the due rule or order to such pending selection. Similarly, in Assam Public Service Commission and others vs. Pranjal Kumar Sarma and others , the Apex Court has held that the 2019 procedure, which came into effect from 01.04.2019 can have no application to selection process initiated pursuant to an advertisement dated 21.12.2018. In P.Mahendran and others vs. State of Karnataka and others also, the rules regarding qualifications for appointment amended during continuance of the process of selection, it was held by the Apex Court that such amendment would have no effect on selection, which is initiated prior to such amendment. It was further held that statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. The same position was reiterated in Tej Prakash

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Pathak and others vs. Rajasthan High Court and others reported in (2013) 4 SCC 540 and in K.H. Siraj vs. High Court of Kerala and others reported in (2006) 6 SCC 395 , Dr. (Major) Meeta Sahai vs. State of Bihar and others reported in (2019) 20 SCC 17 , the Apex Court held that a candidate cannot challenge a selection process after participating in the process unless the illegality is an incurable defect which is in derogation of the provisions of the Constitution. In Rashmi Mishra vs. M.P. Public

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Service Commission and others reported in (2006) 12 SCC 724 , the Apex Court has held that where the rules under which the selection is conducted are not challenged, a person who unsuccessfully participates in the selection process on the basis of the said rules cannot seek setting aside of the entire selection.

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Further decisions relied on by the learned counsel for the petitioners are also authority on the point that a person, who participates in a selection in pursuance to a notification on the basis of clear rules cannot thereafter turn around and

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contend that the process was bad, unless the rules themselves are challenged.

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Further, it is contended that the applicant before the Tribunal being a person, who was fully aware of procedure to be followed in the selection and having subjected himself to such procedure and had submitted an option, could not have turned around to contend that the procedure was erroneous after the selection was complete and he was found to be ineligible in respect of one post, especially without even raising a challenge to the Rules.

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Having considered the contentions advanced and in view of the admitted fact that the selection stood initiated on 02.02.2021, we are of the opinion that the finding of the Tribunal that the selection ought to have been conducted in accordance with Cadre and Recruitment Rules which were notified only on 01.04.2022 was totally erroneous. The further finding that there was no provision in the 2012 official memorandum with regard to exercise of option is also factually incorrect. The petitioner, who did not dispute that he had submitted an option and had submitted to the

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selection procedure in accordance with the 2012 Official Memorandum, could not have turned around and challenged the entire selection procedure, when he failed to come out successful in the selection.

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In the above factual situation, we are of the opinion that the finding of the Tribunal was erroneous and could not be sustained. We therefore pass the following:-

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ORDER

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i. Both the writ petitions are allowed .

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