Karnataka High Court
Sri Shankara M C vs The State Of Karnataka on 25 July, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO.2139 OF 2022 (S-KSAT)
C/W
WRIT PETITION NO.1793 OF 2022 (S-KSAT)
IN WRIT PETITION No.2139 OF 2022:
BETWEEN:
1. SRI. SHANKARA M.C.
S/O CHIKKA BORAIAH
AGED ABOUT 43 YEARS
WORKING AS INSPECTOR OF EXCISE
ARASIKERE RANGE
HASSAN DISTRICT-573 103
2. SMT. LATHA K.
W/O MANJUNATHA H.S.
AGED ABOUT 40 YEARS
WORKING AS INSPECTOR OF EXCISE
GANDHINAGAR RANGE
BENGALURU URBAN DISTRICT
BENGALURU-560 006
3. SMT. SUMA M.R.
D/O RAMACHANDRAPPA M.N.
AGED ABOUT 44 YEARS
WORKING AS INSPECTOR OF EXCISE
OFFICE OF THE DEPUTY
COMMISSIONER OF EXCISE
KOLAR DISTRICT
KOLAR-563 101
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4. SMT. DIVYASHREE B.H.
D/O
AGED ABOUT 40 YEARS
WORKING AS INSPECTOR OF EXCISE
OFFICE OF THE JOINT COMMISSIONER OF EXCISE
BENGALURU SOUTH, BENGALURU-560 042
5. SMT. S. VANAJAKSHI
D/O LATE G. SRINIVASAIAH
AGED ABOUT 40 YEARS
WORKING AS INSPECTOR OF EXCISE
GUBBI RANGE-562 106
6. SRI. ABUBAKAR
S/O ABDULGANI MUJAWAR
AGED ABOUT 45 YEARS
WORKING AS INSPECTOR OF EXCISE
RANGE-30, NO.1354, 60 FT ROAD
'D' BLOCK, AECE LAYOUT
KUNDALAHALLI, BENGALURU-560 037
...PETITIONERS
(BY SRI. SATISH K., ADVOCATE FOR
SRI. ADITHYA R. CHAKRAGIRI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS ADDITIONAL CHIEF SECRETARY
DEPARTMENT OF FINANCE (EXCISE)
VIDHANA SOUDHA
BENGALURU-560 001
2. THE COMMISSIONER OF EXCISE
II FLOOR, TTMC 'A' BLOCK
BMTC, K.H. ROAD
SHANTINAGAR
BENGALURU-560 027
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3. KARNATAKA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY
UDYOGA SOUDHA
BENGALURU-560 001
4. SRI. S. SHIVAKUMAR
S/O SHEKARAPPA S.K.,
AGED ABOUT 44 YEARS
WORKING AS INSPECTOR OF EXCISE
RANGE No.6, SUBRAMANYANAGAR
BENGALURU URBAN DISTRICT
BENGALURU-560 001
5. SRI. K. RAJASAHEB
S/O MAHABOOB SAHEB
AGED ABOUT 42 YEARS
WORKING AS INSPECTOR OF EXCISE
OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE
BENGALURU URBAN DISTRICT-04
BENGALURU-560 026
...RESPONDENTS
(BY SRI. VIKAS ROJIPURA, AGA FOR R1 & R2;
SMT. SINCHANA M.R, ADVOCATE FOR R3;
SRI. PRITHVEESH M.K, ADVOCATE FOR R4 & R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS FROM THE HON'BLE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU IN RESPECT OF THE
IMPUGNED ORDER DATED 29.10.2021 PASSED IN APPLICATION
Nos.3726 AND 3727/2021 (ANNEXURE-A) AND ETC.
IN WRIT PETITION NO.1793 OF 2022:
BETWEEN:
1. SRI. M. PARAMESH
S/O MARIDASAPPA
AGED ABOUT 43 YEARS
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WORKING AS INSPECTOR OF EXCISE
RAJAJINAGAR RANGE
BENGALURU URBAN DISTRICT
BENGALURU-560 004
2. SRI. BASAVARAJ KARAMANNAVAR
S/O DYAMAPPA
AGED ABOUT 40 YEARS
WORKING AS INSPECTOR OF EXCISE
OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE
BENGALURU URBAN DISTRICT
BENGALURU-560 007
3. SMT. SUMANA V PATEL
D/O P.M. VASANTHA KUMAR
AGED ABOUT 42 YEARS
WORKING AS INSPECTOR OF EXCISE
BTM LAYOUT RANGE
BENGALURU URBAN DISTRICT
BENGALURU-560 008
4. SRI. HIDDAYATH ULLA K.K.
S/O KHALEEL K.B.
AGED ABOUT 43 YEARS
WORKING AS INSPECTOR OF EXCISE
OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE
BENGALURU URBAN DISTRICT
BENGALURU-560 008
5. SMT VIJAYALAKSHMI G.B.
D/O BAVANNA
AGED ABOUT 43 YEARS
WORKING AS INSPECTOR OF EXCISE
RAMAMURTHY NAGAR RANGE
BENGALURU URBAN DISTRICT
BENGALURU-560 005
...PETITIONERS
(BY SRI. M.S. BHAGWAT, SENIOR COUNSEL A/W
Ms. M.L. SUVARNA, ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA
REP. BY ITS ADDITIONAL CHIEF SECRETARY
DEPARTMENT OF FINANCE (EXCISE)
VIDHANA SOUDHA
BENGALURU-560 001
2. THE COMMISSIONER OF EXCISE
II FLOOR, TTMC A BLOCK
BMTC, K.H. ROAD
SHANTINAGAR
BENGALURU-560 027
3. KARNATAKA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY
UDYOGA SOUDHA
BENGALURU-560 001
4. SRI. S. SHIVAKUMAR
S/O SHEKARAPPA S.K.,
AGED ABOUT 44 YEARS
WORKING AS INSPECTOR OF EXCISE
RANGE NO.6, SUBRAMANYANAGAR
BENGALURU URBAN DISTRICT
BENGALURU-560 001
5. SRI. K. RAJASAHEB
S/O MAHABOOB SAHEB
AGED ABOUT 42 YEARS
WORKING AS INSPECTOR OF EXCISE
OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE
BENGALURU URBAN DISTRICT-04
BENGALURU-560 026
...RESPONDENTS
(BY SRI. VIKAS ROJIPURA, AGA FOR R1 & R2;
SMT. SINCHANA M.R., ADVOCATE FOR R3;
SRI. PRITHVEESH M.K., ADVOCATE FOR R4 & R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS FROM THE HON'BLE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU IN RESPECT OF THE
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IMPUGNED ORDER DATED 29.10.2021 PASSED IN APPLICATION
No.3726 AND 3727/2021 (ANNEXURE-A) AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 12.07.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) The question raised for consideration before us in these writ petitions is whether a group of persons who had challenged the order of their placement in a select list, unsuccessfully, through the whole hierarchy of forums upto the Hon'ble Supreme Court, can be permitted to raise the same challenge on their placement in the seniority list prepared on the basis of the said select list.
2. Shorn of details, the facts are as follows:-
By the official memorandum dated 31.07.2002, the third respondent called for applications to 254 posts of Sub-
Inspectors in the Excise Department by direct recruitment.
On 06.02.2004, the final select list was notified by the third respondent as per the Karnataka Excise Services (Recruitment) (Amendment) Rules, 2002 in which the
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petitioners' names were also notified under different categories. The petitioners have accordingly reported for duty in May, 2004.
3. Challenging this final list, two applicants - Mr. Gururaj Rayakar and Mr. Madhusudhan Reddy approached the Apex Court in W.P.(C) No.323/2003 and connected matters to contend that the final select list notified was in excess of the reservation policy and that they were more meritorious and thus ought to have been included in the final select list. Since various candidates approached different forums, 9 posts were kept vacant subject to the outcome of those litigations. An additional select list was published by the third respondent on 05.04.2005, wherein the names of the fourth and fifth respondents were also included, pursuant to which they reported for duty. On 14.10.2009, the petitioners as well as the fourth and fifth respondents were promoted to the post of Inspector of Excise.
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4. While so, the Apex Court disposed of the aforementioned Writ Petition on 06.05.2010 and this order was modified on 21.09.2010 directing the respondents to consider the case of the petitioners therein in terms of Rajesh Kumar Daria reported in 2007 (8) SCC 785.
5. Thereafter, the fourth and fifth respondents along with one Mr. Rachayya Hiremath preferred Applications No.5613-15/2011 before the Tribunal seeking a direction to extend the benefit of the Apex Court's order and re-do the selection list by preparing the seniority in accordance with merit. Pursuant to the order of the Apex Court, the third respondent published the revised final and additional selection lists on 28.09.2011 in the cadre of Sub-Inspector of Excise.
6. Applications No.5613-15/2011 were dismissed by the Tribunal on 20.01.2017 on the ground of delay and that the prayers sought therein would hinder the right accrued to other parties. The fourth and fifth respondents thereafter sought review of this order in Review Applications No.68-
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9 71/2017, which came to be dismissed on 06.10.2017 with a finding that there was no error apparent on the face of record. These orders were challenged in W.P.Nos.3374- 76/2018, which came to be dismissed by an order dated 26.03.2018 on the ground that the fourth and fifth respondents had approached the Court 14 years after the final select list was notified on 06.02.2004. Challenging these orders, S.L.P. (Diary) No.2846/2021 was preferred before the Apex Court, but was later withdrawn by the fourth and fifth respondents with liberty to pursue other remedies available before the appropriate forum.
7. The fourth and fifth respondents once again approached the Tribunal filing Applications No.2671-72/2020 challenging the final select list, which was dismissed on 27.01.2021 with an observation that the matter had already attained finality and does not survive for consideration.
8. Aggrieved by this order of dismissal, the fourth and fifth respondents preferred W.P.No.6282/2021 and this Court also dismissed said writ petition on 14.06.2021,
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10 following which the fourth and fifth respondents made representations on 21.06.2021 seeking alteration in the seniority list and thereby allot seniority as per merit. An endorsement dated 23.07.2021 was issued by the second respondent stating that since the fourth and fifth respondents were recruited through the additional select list, their seniority could not be considered on par with the candidates selected in the final select list. Subsequently, the fourth and fifth respondents approached the Tribunal in Application Nos.3726-27/2021 challenging said endorsement and sought a direction to consider their representations favourably in terms of the order of the Apex Court.
9. By the order dated 29.10.2021, the Tribunal allowed the applications and consequently quashed the endorsement with a direction to the second respondent, in consultation with the third respondent, to make necessary corrections in fixation of seniority in accordance with merit and pass appropriate orders within a period of three months. The petitioners, aggrieved by this order proposing to
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11 displace them from the seniority list, have preferred these writ petitions.
10. The learned senior counsel for the petitioners contends that the private respondents had initially approached the Tribunal filing Applications No.5613-15/2011 (Annexure-A11), seeking the following reliefs:-
" (i) Call for records,
(ii) Issue a writ of mandamus or any other writ
or directions to the 4th respondent to extend the benefits of the orders of Hon'ble Supreme Court of India in W.P. (Civil) No.323/2003, dated 21.09.2010, to the applicants and further direct the 4th respondent to redo the selection list and forward the same to respondents No.1 to 3,
(iii) Issue a writ of mandamus or any other writ or direction to the respondents No.1 to 3, to prepare the seniority/gradation list after considering and correcting the marks secured by the applicants in their qualifying examinations on par with Mr.Madhusudhan Reddy's case and
(iv) Pass such other orders or directions deemed to be just and necessary on the facts and circumstances of the case, in the interest of Justice and equity.
INTERIM RELIEF:
Pending disposal of the aforesaid applications, it is humbly prayed that this Hon'ble Tribunal may kindly be pleased to pass an interim order/directions, directing the respondents to not to promote the officials on the basis of
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erroneous selection list prepared by the respondent No.4, in the interest of justice and equity."
11. The said application was rejected by an order dated 20.01.2017 consequent on the rejection of their prayer for condonation of delay. A review attempted against this order was also dismissed. Thereafter W.P.Nos.3374- 76/2018 was filed, which was also dismissed. SLPs filed against the said judgment were withdrawn with liberty to approach the appropriate authority. Thereafter, the fresh attempts were made to seek revision of seniority which was not successful. Applications No.2671-72/2020 was again filed which was also dismissed. Suffice it so say that all attempts by the private respondents to challenge their placement in the final select list and seniority list were unsuccessful. The promotions to higher posts were made on the basis of the seniority assigned on the basis of the final select list, which was the subject matter of challenge. It is thereafter when the final gradation list was issued, that the issue is sought to be raked up again.
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12. The learned senior counsel appearing for the petitioners has placed reliance on the following citations:-
• Sri. G. Krishnamurthy v. The Joint Registrar of Cooperative Societies, Bengaluru Region, by Order dated 28.06.2024 passed in WA No.348/2024 (CS-RES);
• C. Jacob v. Director of Geology and Mining & Another, reported in (2008) 10 SCC 115, Paras 9, 10, 11 & 14;
• Union of India & Ors. v. Chaman Rana, reported in (2018) 5 SCC 798, Paras 10, 14-16;
• Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar & Another, reported in AIR 1963 SC 786, Paras 9 and 12;
• Burn & Co. v. Employees, reported in AIR 1957 SC 38;
• Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) & Ors., reported in (2011) 4 SCC 374, Paras 25, 26 & 28;
• T. N. Perumal Reddy v. The State of Karnataka & Another, reported in ILR 1979 KAR 774, Paras 12, 14, 25 & 35;
• S.M. Yatheesha & Ors. v. Sri. Ramesh & Ors., by Order dated 18.10.2021 passed in WP No.13385/2021 (S-KSAT), Paras 6, 7 & 8;
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• State of Uttar Pradesh & Ors. v. Arvind Kumar Srivastava & Ors., reported in (2015) 1 SCC 347, Para 22.2; and • Sri. Suresh K. & Another v. The State of Karnataka, by Order dated 18.06.2021 passed in WP No.29110/2018 (S-KAT), Paras 10, 11 & 12.
13. The learned counsel for the private respondents contends that the earlier challenge was against an erroneous select list, while the present challenge is against the placement in the seniority list violating the specific provisions of the rules for fixation of seniority. It is submitted that it is only when a seniority list was prepared and circulated that the objection could be raised for the first time, and that nobody is prejudiced by the direction issued by the Tribunal to consider the objections.
14. The learned counsel for the private respondents has placed the reliance on following citations:-
• Rajeev Kumar & Another v. Hemaraj Singh Chauhan & Ors., reported in (2010) 4 SCC 554, Paras 15 & 16;
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• Pavithra G.C. & Ors., v. State of Karnataka & Ors., by Order dated 18.04.2023 passed in WP No.5622/2023;
• Sunil G. & Ors. v. State of Karnataka & Ors., by Order dated 19.04.2023 passed in WP No.7107/2023;
• A.H. Umesha v. State of Karnataka & Ors., by Order dated 03.07.2023 passed in WP No.13401/2023;
• Srimati Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors., reported in AIR 1953 SC 33, Para 13;
• Sheodan Singh v. Daryao Kunwar (Smt), reported in AIR 1966 SC 1332, Para 9;
• State of Maharashtra & Another v. National Construction Company, Bombay & Another, reported in (1996) 1 SCC 735, Paras 6 & 8;
• Madhvi Amma Bhawani Amma & Ors. v.
Kunjikutty Pillai Meenakshi Pillai & Ors.,
reported in (2000) 6 SCC 301, Para 7;
• Municipal Corporation of Delhi v. Gurnam Kaur, reported in (1989) 1 SCC 101, Paras 11 & 12;
• State of U.P. & Another v. Synthetics and Chemicals Ltd. & Another, reported in (1991) 4 SCC 139, Paras 39 & 42;
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• A-One Granites v. State of U.P. & Ors., reported in (2001) 3 SCC 537, Paras 9-14;
• Delhi Airtech Services Private Limited & Another v. State of Uttar Pradesh & Another, reported in (2011) 9 SCC 354, Paras 41-47; and • Shanti Conductors Private Limited & Another v. Assam State Electricity Board & Ors., reported in (2016) 15 SCC 13, Paras 50, 60 & 74;
15. Having considered the contentions advanced, we find that the private respondents had been appointed as Sub-Inspectors of Excise, pursuant to their inclusion in the additional select list in September, 2005. Admittedly, the private respondents and the petitioners were promoted as Inspectors of Excise in 2009. In the year 2011, the private respondents had approached the Tribunal seeking revision of the final select list and to prepare seniority/gradation list after considering the marks secured by them in their qualifying examinations on par with Madhusudhan Reddy's case (supra). Thereafter, Applications No.2671 & 2672/2020 was again filed challenging the final select list, which was dismissed on 27.01.2021 on the ground that the matter had attained finality. The said order was also
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17 challenged in W.P.No.6282/2021 which was also dismissed on 14.06.2021. Thereafter, representations were made seeking alteration in the seniority list which was dismissed by endorsement dated 23.07.2021. The said endorsement was challenged before the Tribunal in Applications No.3726- 3727/2021, which was considered by the Tribunal, from which the writ petitions arise.
16. We are of the clear opinion that the direction issued by the Tribunal to consider the objections to the seniority list on the same grounds, which have attained finality as against the private respondents, would lead to clear miscarriage of justice.
17. The petitioners herein who have been appointed long before the private respondents, pursuant to a selection initiated in 2002, are entitled to sit back and consider their seniority settled since no successful challenge has been raised for nearly two decades. Requiring them to answer the claims again and again would result in a travesty and cannot be countenanced. Though the learned counsel
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18 appearing for the private respondents would contend that their claim for seniority is based on the statutory provisions contained in Rule 5 of the Karnataka Government Servants (Seniority) Rules, 1957 and that the earlier rounds of litigation were only in respect of placement in the select list, we notice that the very claim for reckoning of seniority on the basis of merit considering the marks secured by the applicants was specifically raised before the Tribunal in Applications No.5613-15/2011, which had been considered and rejected by the Tribunal on the ground of delay.
18. Accordingly, we pass the following:
ORDER
(i) The writ petitions are allowed.
(ii) The impugned order dated 29.10.2021
passed in Applications No.3726 &
3727/2021 by the Tribunal is set aside.
(iii) Consequently, Applications No.3726 & 3727/2021 are dismissed.
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Pending I.A.No.2/2022 for permission to prosecute the case in W.P.No.2139/2022 and I.A.No.1/2023 for permission to prosecute the case in W.P.No.1793/2022, are hereby closed.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(ANANT RAMANATH HEGDE) JUDGE cp*