Karnataka High Court
The State Of Karnataka vs Smt. Jameela Khathoon on 25 July, 2024
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NC: 2024:KHC:30394-DB
WP No. 15065 of 2022
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. 15065 OF 2022 (S-KSAT)
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF HEALTH AND FAMILY WELFARE
VIKASA SOUDHA, BENGALURU-560 001
2. THE SPECIAL RECRUITMENT COMMITTEE
REPRESENTED BY ITS MEMBER SECRETARY
ALSO THE CHIEF ADMINISTRATIVE OFFICER
DEPARTMENT OF HEALTH AND FAMILY WELFARE
ANANDA RAO CIRCLE, BENGALURU-560 009
...PETITIONERS
(BY SRI. VIKAS ROJIPURA, AGA)
AND:
Digitally signed
by
CHANNEGOWDA
PREMA SMT. JAMEELA KHATHOON
Location: High
Court of
Karnataka
AGED ABOUT 43 YEARS
D/O. BABAJAN SAHEB
WORKING AS STAFF NURSE
PRIMARY HEALTH CENTRE
MALLIPATTANA HOBLI
ARAKALAGUD TALUK
HASSAN DISTRICT-573 102
...RESPONDENT
(BY SRI. SATISH K., ADVOCATE FOR RESPONDENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND ISSUE A WRIT OF CERTIORARI TO QUASH THE -2- NC: 2024:KHC:30394-DB WP No. 15065 of 2022 ORDER DATED 14.07.2021 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU IN APPLICATION No.2662/2020 VIDE ANNEXURE-A BY ALLOWING THE WRIT PETITION AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN AND HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGEMENT (PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) The present writ petition is filed by the State seeking to issue a writ of certiorari to quash the impugned order dated 14.07.2021 in Application No.2662/2020 passed by the Karnataka State Administrative Tribunal, Bengaluru (hereinafter referred to as "Tribunal" for short).
2. Heard learned Additional Government Advocate appearing for the petitioners and learned counsel appearing for the respondent.
3. It is submitted that the respondent was appointed as a Staff Nurse on contract basis on 10.03.2006 and was continued as such. In view of the -3- NC: 2024:KHC:30394-DB WP No. 15065 of 2022 fact that several vacancies were in existence in Government hospitals, the Karnataka Directorate of Health and Family Welfare Services (Recruitment to Staff Nurses with Diploma in Nursing) (Special) Rules, 2017, provided for age relaxation of 1 year for each year of service and also provided weightage for contract engagement. The petitioner No.2 - Committee was constituted to fill up 889 posts of Staff Nurse throughout the State and a notification was issued calling for applications on 20.06.2017. The last date of submission of applications was on 26.07.2017.
4. The petitioner submitted an application for the post of 'Staff Nurse'. She had also submitted an application before the Tahasildar for issuance of income and caste certificate for the purpose of appointment under the notification claiming reservation under 2B category. It is contended that she was eligible for appointment under the terms of notification as she had a total percentage of 85.846% in case her credentials were accepted. However, -4- NC: 2024:KHC:30394-DB WP No. 15065 of 2022 provisional select list was prepared and published on 27.02.2020 under which, 888 persons were selected.
However, the respondent's name did not find a place, though the cut off mark percentage under 2B category was 81.92% and respondent had secured 85.846%. It is submitted that she was orally informed that her case was not considered under 2B category since the certificate submitted by her was dated 28.07.2017 and therefore, she was considered only in general merit category. The petitioner filed the application before the Tribunal seeking inclusion of her name in the final select list under 2B category and seeking appointment to the post of Staff Nurse.
5. The petitioners had resisted the application on the ground that the respondent had not produced her caste and income certificate along with the application as on the last date specifically provided for, in the notification. It was therefore contended that she could be considered only as a general merit candidate and not -5- NC: 2024:KHC:30394-DB WP No. 15065 of 2022 under 2B category. The Tribunal accepted the said contention and allowed the application directing the second petitioner to consider the applicant for selection under 2B category within one month and to rescind the selection of the last selected candidate in the category and a liberty was also given to the second petitioner to absorb the candidate likely to be effected by creating supernumerary post. This has given raise to the present writ petition.
6. Learned Additional Government Advocate appearing for the petitioners would contend that the notification had specifically stated that the documents in support of the claims of the employees would have to be submitted along with the application before the last date fixed. It is submitted that the last date fixed for submission of application along with all supporting documents was 26.07.2017. It is submitted that the certificates were produced by the respondent only on 28.07.2017. It is therefore contended that since the -6- NC: 2024:KHC:30394-DB WP No. 15065 of 2022 notification clearly provided that all credentials and certificates would have to be submitted along with the application, the respondent's case could not have been considered in the reserved category.
7. Learned Additional Government Advocate would contend that the findings in Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and another reported in (2016) 4 SCC 754, have been considered by the later Bench decisions of the Apex Court and it has been held that, that was a case where there was no last date fixed in the notification for submission of the documents. It is submitted that in the light of the specific provision in the notification that all supporting documents have to be submitted along with the application and since the respondent had ample time to procure and submit the same, she is not entitled to appointment in the 2B category.
8. The learned Additional Government Advocate submits that the last date for submission of application was -7- NC: 2024:KHC:30394-DB WP No. 15065 of 2022 admittedly on 26.07.2017. The Notification clearly provided that the Certificates in support of the application have to be made available as on the last date for submission of the application and certificates produced thereafter would not be considered under any circumstances. It is further contended that the reliance placed by the Tribunal on the decision of the Apex Court in Ram Kumar Gijroya case (supra), was misconceived since the said decision had not been followed by later benches of the Apex Court. It is further contended that the said decision was referred to a larger bench for consideration.
9. Learned counsel for the private respondent submits that she had made the application for caste and income certificate as early as on 04.07.2017 but the certificate was issued only on 28.07.2017. It is submitted that it was only on account of delay in issuing the certificate by the Tahsildar that the respondent could not submit the same before the competent authority as on the due date. It is further contended that since the -8- NC: 2024:KHC:30394-DB WP No. 15065 of 2022 appointment was not by direct recruitment but was confined to Contractual Appointees, who had the eligibility for such appointment and since only 883 persons had been appointed against 889 vacancies available, the respondent's application ought to have been considered under 2B category and she was entitled for appointment.
10. Learned counsel for the private respondent has placed reliance on the following judgments of the Apex Court:-
i. Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and another reported in (2016) 4 SCC 754;
ii. Tel Pal Singh and others vs.
Government of NCT, Delhi reported in
ILR 2001 Delhi 298;
iii. Charles K. Skaria vs. C. Mathew (Dr.) reported in (1980) 2 SCC 752;
iv. Seema Kumari Sharma vs. State of Himachal Pradesh reported in (1988) 9 SCC 128;
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NC: 2024:KHC:30394-DB WP No. 15065 of 2022 v. Dolly Chhanda vs. Chairman, JEE reported in (2005) 9 SCC 779; and vi. Food Corporation of India vs. Rimjhim reported in (2019) 5 SCC 793.
11. We have considered the contentions advanced. It is clear that the respondent was entitled to the benefit of reservation on the basis of the caste and income certificate. If her application was considered under 2B category, she would have secured the appointment. The last date prescribed for submission of application was 26.07.2017. The respondent's contention that she had submitted the certificate on 28.07.2017, is not disputed. It is submitted by the learned counsel for the respondent that nobody would have to be displaced since there were vacancies available to accommodate the respondent. The legal position in a case where a notification provides a last date for submission of the application as well as for production of the documents is that only those documents which are produced as on the last date can be considered for deciding the category in which the applicant would be
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NC: 2024:KHC:30394-DB WP No. 15065 of 2022 entitled for appointment. We consider this is more so in the case where the claimant is under 2B category since what is relevant is not only the caste aspect but also income criteria for availing the benefit on reservation. In the instant case, it is admitted that the application was preferred after the last date.
12. Having considered the contentions advanced on either side and given our anxious consideration to decisions on the point, we are unable to hold that the delay of two days in submitting the requisite certificate after the last date fixed in the notification can be condoned by an order of the Tribunal. However, in the facts and circumstances of the instant case, where the respondent has been a Contract Appointee as a Staff Nurse since 2006 and is presently in service pursuant to an interim order of this Court, subject to the result of this writ petition and since the delay in submitting the credentials is only of two days, it is a fit case, where the Government should consider whether any benefit can be extended to the
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NC: 2024:KHC:30394-DB WP No. 15065 of 2022 respondent taking note of the facts and circumstances of the case. We also notice that out of 889 posts notified for selection, it is contended that only 883 appointments were made and there are vacancies available to accommodate to the respondent without disturbing any of the appointees.
13. The writ petition is therefore disposed of with a direction to the State Government to consider the grant of extension of time to the respondent herein so that the respondent can be retained in one of the vacancies, which are in existence without disturbing the selection in any manner. The case of the respondent shall be considered sympathetically and orders shall be passed within a period of two months from the date of receipt of copy of this order.
14. This order is being passed considering the special facts and circumstances of the instant case and it is made clear that we have not expressed any contrary view on the legal aspects of the matter and this judgment
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NC: 2024:KHC:30394-DB WP No. 15065 of 2022 therefore will not serve as a precedent in any further cases.
Pending I.A.No.1/2024 for Early Hearing is hereby dismissed.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(ANANT RAMANATH HEGDE) JUDGE MH/-
List No.: 1 Sl No.: 18