Karnataka High Court
Smt Venupriya S vs Bangalore Water Supply And ... on 5 January, 2021
Author: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2021
R
BEFORE
THE HON' BLE MR.JUSTICE R. DEVDAS
WRIT PETITION NO.51898/2019 (S-RES),
C/W
WRIT PETITION NOs.25266/2016, 4473/2018
(S-RES)
IN W.P.NO. 51898/2019
BETWEEN
1. SMT. VENUPRIYA S.,
D/O. SOMASHEKAR C.,
AGED ABOUT 28 YEARS
WORKING AS ASSISTANT ENGINEER,
OFFICE OF THE EXECUTIVE ENGINEER
(M AND P) -14, BANGALORE WATER
SUPPLY AND SEWERAGE BOARD,
18TH CROSS, MALLESHWARAM,
BANGALORE- 560 055.
2. SRI. KARTHIK SADANAND NAIK,
S/O SADANAND VENKATRAMAN NAIK,
AGED ABOUT 28 YEARS,
WORKING AS ASSISTANT ENGINEER,
OFFICE OF THE EXECUTIVE ENGINEER
(STP K VALLEY) DIVISION,
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD,
KADUBEESANAHALLI RING ROAD,
MARATHAHALLI, BANGALORE- 560 037.
-2-
3. SRI.PUNEET A HARSOOR
S/O APPA RAO,
AGED ABOUT 27 YEARS,
WORKING AS ASSSTANT ENGINEER,
OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER,
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD, CHIKKALALBAGH,
BANGALORE - 560 004.
4. SRI. PRATHAP REDDY C.,
S/O PANDURANGA REDDY C,
AGED ABOUT 28 YEARS,
WORKING AS ASSISTANT ENGINEER,
CAUVERY HEAD WORKS DIVISION,
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD,
T K HALLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 421.
...PETITIONERS
(BY SRI. M S BHAGWAT, ADVOCATE)
AND
1. BANGALORE WATER SUPPLY AND
SEWERAGE BOARD,
REP BY ITS CHIEF ADMINISTRATIVE OFFICER
CUM SECRETARY,
1ST FLOOR, CAUVERY BHAVAN, K G ROAD,
BANGALORE - 560 009.
2. SRI. RAGHU M,
FATHER'S NAME NOT KNOWN TO
THE PETITIONERS,
AGED ABOUT 27 YEARS,
WORKING AS ASSISTANT ENGINEER,
OFFICE OF THE ASSISTANT EXECUTIVE
-3-
ENGINEER (CH-1),
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD,
TK HALLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 433.
3. SRI. SYED MUIEZ AHMED,
FATHER'S NAME NOT KNOWN TO
THE PETITIONERS,
AGED ABOUT 26 YEARS,
WORKING AS ASSISTANT ENGINEER,
OFFICE OF THE ASSISTANT
EXECUTIVE ENGINEER -SW2,
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD, 1ST MAIN ,
BSK 3RD STAGE, BANGALORE 560 085.
4. KUM. DEEPASHRI K.R.,
FATHER'S NAME NOT KNOWN TO
THE PETITIONERS,
AGED ABOUT 30 YEARS,
WORKING AS ASSISTANT ENGINEER,
OFFICE OF CMC -15 DIVISION,
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD,
KAPILA BHAVAN, JAYANAGAR,
BANGALORE - 560 082.
5. SRI. SACHIN PATIL,
S/O N K PATIL,
AGED ABOUT 27 YEARS,
WORKING AS ASSISTANT ENGINEER,
OFFICE OF THE ASSISTANT EXECUTIVE
ENGINEER (C-3),
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD, NETAJI ROAD,
FRAZER TOWN,
BANGALORE- 560 005. ...RESPONDENTS
-4-
(BY SRI. B.L. SANJEEV, ADVOCATE FOR R1;
SRI. VIJAYKUMAR, ADVOCATE FOR R6 TO R12;
R2 TO R4 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
FINAL GRADATION LIST IN THE CADRE ASSISTANT ENGINEERS
DATED 13.08.2019 PREPARED AND PUBLISHED BY THE R-1 (ANNX-
K) AS FAR AS THE RANKING ASSIGNED TO THE PETITIONERS AND
R-2 TO 5 IS CONCERNED AND ETC.
IN W.P. NO.25266/2016
BETWEEN
1. SRI. VINAYKUMAR. S
AGED ABOUT 36 YEARS
S/O SRINIVASA REDDY P,
ASSISTANT ENGINEER,
OFFICE OF THE AEE,
SOUTH -3, BWSSB,
BTM LAYOUT,
BANGALORE - 562 106.
2. SMT. N.S. HEMANTHKUMAR,
AGED ABOUT 32 YEARS,
D/O. SIDDAPPAJI,
ASSISTANT ENGINEER,
OFFICE OF THE AEE,
SOUTH WEST-1, SUB DIVISION,
V.V.PURAM, BWS&SB,
BANGALORE-560 004.
3. SMT. SMITHA. G.V
AGED ABOUT 33 YEARS
W/O PRABHU
ASSISTANT ENGINEER
OFFICE OF THE EXECUTIVE ENGINEER,
-5-
NEW INITIATIVE AND PUBLIC OUTRICH [N1 & PO]
BWS&SB, 7TH FLOOR, CAUVERY BHAVAN,
BANGALORE-560 009.
...PETITIONERS
(BY SRI. MUKKANNAPPA S. B., ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS ACS,
DEPARTMENT OF HOUSING AND
URBAN DEPARTMENT,
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BANGALORE-01.
2. THE CHAIRMAN,
BANGALORE WATER SUPPLY &
SEWERAGE BOARD, 1ST FLOOR,
CAUVERY BHAVAN, K.G. ROAD,
BANGALORE-09.
3. THE CHIEF ADMINISTRATIVE
OFFICER & SECRETARY,
BANGALORE WATER SUPPLY &
SEWERAGE BOARD,
1ST FLOOR, CAUVERY BHAVAN,
K.G. ROAD,
BANGALORE-560 009.
4. SRI. SUMANTH N,
AGED ABOUT 28 YEARS
S/O NAGARAJU K.H.
ASST. ENGINEER,
O/O AEE -CMC-1-2, BWS & SB,
ANANDA RAO CIRCLE,
BANGALORE-01.
5. SRI.NARESH B.K,
-6-
AGED ABOUT 32 YEARS
S/O KADEGOWDA
ASST. ENGINEER,
O/O AEE-CH-1,
T.K. HALLI, BWS & SB,
BANGALORE-560 001.
6. SRI.PAVAN N,
AGED ABOUT 30 YEARS
S/O NAGARAJ N.,
ASST.ENGINEER,
B.W.S & S.B, O/O AEE -K-1-2,
SHIMSHA BHAVAN,
BANGALORE-560 001.
7. SMT. DIVYA P.S.
AGED ABOUT 31 YEARS,
D/O P. SANJEEVAIAH,
ASST. ENGINEER
B.W.S & S.B, O/O AEE-K-4-2,
MALLESHWARAM
BANGALORE-560 012.
8. SRI. CHANDRASHEKAR S.,
AGED ABOUT 36 YEARS,
S/O SIDDARAMAIAH
ASST. ENGINEER,
B.W.S & S.B
O/O AEE-CMC-1-2
ANANDA RAO CIRCLE,
BANGALORE-560 009.
9. SMT. SOWMYARANI M.
AGED ABOUT 33 YEARS,
D/O S.N MAHADEV
ASST. ENGINEER,
B.W.S & S.B,
O/O AEE-WWM-H1,
18TH CROSS, MARGOSA ROAD,
-7-
MALLESHWARAM,
BANGALORE-560 012.
10 . R.SRINIVAS
AGED ABOUT 33 YEARS
S/O RAVINDRA D.
ASST. EXECUTIVE ENGINEER,
BWSSB, SW3, SUB D MNK PART,
BANGALORE-560012
11 . R.RAGHU
AGED ABOUT 34 YEARS,
S/O RAJANNA
ASSISTANT ENGINEER OFFICE OF AEE,
BWSSB, CENTRAL (2) SUB DIVISION,
HIGH GROUND,
BANGALORE-560 001.
...RESPONDENTS
(BY SMT. VANI H., AGA FOR R1; R2-SERVED;
SRI. B.L.SANJEEV, ADVOCATE FOR R3;
SRI. M.S.BHAGWAT, ADVOCATE FOR R4 TO R11)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED FINAL SENIORITY LIST DATED 26.12.2013 IN SO FAR
AS IT RELATES TO THE RANKING ASSIGNED TO THE R-4 TO 11
VIDE ANNEXURE-K TO WRIT PETITION UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE AND ETC.
IN W.P. NO. 4473/2018
BETWEEN
SRI. PRATHAP REDDY C,
S/O. PANDURANGA REDDY C,
AGED ABOUT 26 YEARS,
WORKING AS ASSISTANT ENGINEER,
THOREKADANAHALLI, CAUVERY HEAD
WORKS DIVISION, BANGALORE WATER
-8-
SUPPLY AND SEWERAGE BOARD,
MALAVALLI TALUK,
MANDYA DISTRICT-571 430. ...PETITIONER
(BY SRI. M. S. BHAGWAT, ADVOCATE)
AND
1. BANGALORE WATER SUPPLY
AND SEWERAGE BOARD,
REPRESENTED BY ITS CHIEF
ADMINISTRATIVE OFFICER AND SECRETARY,
OFFICE OF THE CHAIRMAN,
1ST FLOOR, CAUVERY BHAVAN,
K.G. ROAD,
BANGALORE-560 009.
2. SRI. SACHIN PATIL,
FATHER'S NAME NOT KNOWN
TO THE PETITIONER, MAJOR,
WORKING AS ASSISTANT ENGINEER,
OFFICE OF ASSISTANT EXECUTIVE ENGINEER,
K3-3 SUB DIVISION,
BANGALORE WATER SUPPLY AND
SEWERAGE BOARD, SHIMSHA BHAVAN,
JAYANAGAR 8TH BLOCK,
BANGALORE-560 070.
....RESPONDENTS
(BY SRI. B.L. SANJEEV, ADVOCATE FOR R1
SRI. VISHNU BHAT, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
SENIORITY LIST DATED 23.12.2017 (ANNEXURE-H) ISSUED BY
RESPONDENT NO.1 IN SO FAR AS IT RELATES TO THE RANKING
ASSIGNED TO THE PETITIONER AND RESPONDENT NO.2 ARE
-9-
CONCERNED AND CONSEQUENTLY DIRECT THE RESPONDENT NO.1
TO RE-ASSIGN THE RANKING TO THE PETITIONER IN THE
IMPUGNED SENIORITY LIST IN THE CADRE OF ASSISTANT
ENGINEER DATED 23.12.2017 BY PLACING HIM OVER AND ABOVE
THE RESPONDENT NO.2 AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 14.10.2020 THROUGH VIDEO CONFERENCE AND
COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners in W.P.No.25266/2016 are direct recruits for
the post of Assistant Engineers (Civil). The recruitment notification
was issued on 22.02.2008 and final select list for Assistant
Engineers (Computer Science) was published vide notification dated
08.04.2010. The final select list of Assistant Engineers (Mechanical)
was published vide notification dated 05.05.2010. The final select
list of Assistant Engineers (Civil) was published vide notification
dated 12.05.2010, while the final select list of Assistant Engineers
(Electrical) was published vide notification dated 21.06.2016.
Thereafter, a consolidated list adding 30% from the marginal list in
all the three categories - Assistant Engineers (Civil, Electrical and
Computer Science) was published on 31.01.2011, vide three
separate notifications.
2. However, since some of the selected candidates did not
report for duty despite issuance of appointment orders, the
selection of such candidates was cancelled by a notification dated
01.08.2011 and thereafter the respondent Board published an
additional final select list in all the three categories on 16.09.2011
and 22.09.2011 enlisting candidates finally selected from the
marginal list. Appointment orders were issued and the contesting
parties have been working from then on. Thereafter, a provisional
seniority list of graduate Assistant Engineers and non-graduate
Assistant Engineers from 01.04.2012 was published vide notification
dated 13.11.2013. Since the petitioners in W.P.No.25266/2016 had
no grievance with respect to their ranking assigned in the
provisional list dated 13.11.2013, they did not file any objections.
The final seniority list of Assistant Engineers (graduate) was
published on 26.12.2013.
3. The grievance of the petitioners in W.P.No.25266/2016
is that in the final seniority list, the respondents No.4 to 11 were
placed above the petitioners, contrary to the provisional seniority
list. The petitioners gave a representation dated 06.01.2014 for
correcting the final seniority list and restore their rankings as per
the provisional seniority list. It is contended that the respondent
Board while publishing seniority list of Junior Engineers vide
notification dated 05.03.2015 had rightly placed the candidates
selected from the marginal list below the candidates selected in the
provisional select list, but in the case of Assistant Engineers, the
respondent Board has committed a mistake in placing respondents
who were selected from the marginal list, above the petitioners. On
the other hand, the Board issued endorsements at Annexure-N
series stating that the respondents had sought for extension of time
to join duty and therefore in terms of Clause 16(d) of the Bangalore
Water Supply and Sewerage Board Cadre, Recruitments and
Promotion Regulation, 1981, (for short 'Regulation'), the benefit of
extension of time to join duty was given to the respondents,
however, since it was found that their ranking was not in
accordance with the percentage of marks obtained, the respondents
have been placed in the seniority list, as per their marks obtained.
4. Two issues arise for consideration-
(i) Whether the candidates shown in the
marginal list could be permitted to claim
ranking in the seniority list in terms of the
percentage of marks obtained during
recruitment process or whether they are
required to be placed below the candidates
in the final select list?
(ii) Whether clause 16(d) of the Regulation
provides for extension of joining time and
whether such candidates who assume
charge after the period specified in the
appointment order lose the seniority
originally assigned?
5. In the statement of objections filed by the respondent
Board it is stated that this Court, in the case of Smt. V.Shilpa and
others Vs. The Chairman, BWSSB & others in W.P.Nos.19518-
19533/2014, by order dated 04.09.2014 considered the final
gradation list of Assistant Engineers (graduates) notified on
26.12.2013. It is stated that in view of certain directions given in
W.P.No.22937/2010 concerning the preparation of provisional
select list and final select list to the post of Junior Engineers, this
Court had directed the respondent Board to prepare a fresh select
list as contemplated under clause 8 (xiv)(a) to include the name of
the candidates falling within the 30% margin of the number of
existing vacancies to be filled up, a fresh select list with regard to
the Assistant Engineers also was prepared and notified. It is stated
that in the light of the directions given in W.P.No.22937/2010, in
the consolidated final select list dated 16.09.2011 and 22.09.2011,
the respondents who were in the marginal list were placed above
the petitioners, although that was a case pertaining to Junior
Engineers, but had considered clause 8(xiv)(a) of the Regulations.
However, having considered the final gradation list dated
26.12.2013 in the light of clause 8(xiv)(a) and clause 16(a) of the
Regulations, this Court, in W.P.No.19518-19533/2014 upheld the
final seniority list of Assistant Engineers. It is therefore submitted
at the hands of the respondent Board that when the final seniority
list dated 26.12.2013 has been upheld, a challenge cannot be
raised once again to the very same list.
6. In W.P.No.4473/2018, the sole petitioner who was
selected to the post of Assistant Engineer (Electrical) pursuant to
recruitment notification dated 23.02.2015, has raised a challenge to
the final seniority list dated 23.12.2017. Whereas, in
W.P.No.51898/2019, a challenge is raised to the final seniority list
dated 13.08.2019. The petitioners and respondents in
W.P.No.4473/2018 and 51898/2019 are direct recruits to the post
of Assistant Engineers consequent to the recruitment notification
dated 23.02.2015.
7. The petitioner in W.P.No.4473/2018, Sri Prathap Reddy C,
was placed at Sl.No.1 in the provisional select list to the post of
Assistant Engineer (Electrical), having secured 96.33%. Even in
the final select list dated 21.01.2016, the petitioner is placed at
Sl.No.1. An appointment order dated 29.07.2016 was issued to the
petitioner and in terms of the appointment order the petitioner was
required to report for duty within 15 days. There is no dispute that
the petitioner had reported for duty within the stipulated time. A
provisional seniority list dated 01.08.2017, withdrawing or
rectifying the seniority list dated 31.07.2017, in terms of the
directions given by the Hon'ble Supreme Court in the case of Union
of India and others /vs./ B.K.Pavithra and others was
notified. The petitioner was placed at Sl. No.305 and he had no
grievance. However, in the final seniority list dated 23.12.2017, the
petitioner is listed at Sl.No.403 and respondent No.2 is placed at
Sl.No.329.
8. In W.P.No.4473/2018, the respondent Board has filed
statement of objections and written arguments contending that
immediately after the final select list was announced, the Board
addressed a letter dated 25.02.2016 to the District Collector of
Karnool requesting for personal verification report of the petitioner.
The report was received on 18.07.2016 and the delay was
occasioned due to the incorrect address given by the petitioner.
Nevertheless, on receipt of the verification report, appointment
order dated 29.07.2016 was issued to the petitioner and the
petitioner personally appeared on 12.08.2016 along with the
medical certificate and original documents. It is contended that the
previous employer of the petitioner relieved the petitioner only on
07.09.2016 and thereafter posting order was issued to the
petitioner on 06.09.2016. The petitioner reported for duty on
12.09.2016. On the other hand, respondent No.2 reported for duty
on 06.06.2016. It is therefore contended that since the respondent
No.2 reported for duty much earlier to the petitioner, on the basis
of clause 16(d) of the Regulations, the petitioner has been placed
below the respondent No.2. Nevertheless, in the statement of
objections filed in W.P.No.51898/2019 where Sri Prathap Reddy is
petitioner No.4, it is categorically admitted that his name was found
at Sl.No.1 in the list of selected candidates to the post of Assistant
Engineer (Electrical), he has reported for duty within the time
stipulated in the appointment order and therefore no fault could be
found in his claim to be placed above respondent No.2 in
W.P.No.4473/2018. To that extent, the respondent Board has
conceded the case of Sri Prathap Reddy.
9. The petitioners in W.P.No.51898/2019 are admittedly
candidates who were in the marginal list of 30% after the final
select list in terms of clause 8(xiv)(b) of the Regulations was
prepared and published. This is evident from the provisional and
final select list published vide notifications dated 18.11.2015 and
31.12.2015. Except the name of Sri Prathap Reddy (petitioner
No.4), the names of the other petitioners are found in the 30%
marginal list. When some of the selected candidates did not report
for duty or when their candidature was rejected owing to
unsatisfactory verification report or for production of invalid
documents etc., the marginal list was operated and an additional
select list in the three categories viz., AE(Electrical), AE(Civil) and
AE(Mechanical) was published on 27.03.2017, 20.01.2017 and
20.01.2017 respectively. Therefore, the very same question as
found in W.P.No.25266/2016 as to whether, in the seniority list the
candidates who were subsequently selected from the marginal list
could be placed above the candidates from the original final select
list, based on the percentage of marks obtained in the recruitment
process arises for decision making.
10. The other contention raised by the learned counsel Sri
M.S.Bhagwat, on behalf of the petitioners in W.P.No.51898/2019 is
that the combined gradation list of Assistant Engineers (graduates)
and Assistant Engineers (non-graduates) is to be published for the
purpose of considering 2/3rd quota meant for Assistant Engineers
(BE graduates) and 1/3rd quota by promotion of Diploma holders
and to consider the petitioners claim for promotion as Assistant
Executive Engineers. In this regard, learned counsel Sri
M.S.Bhagwat draws the attention of this Court to Schedule-II of the
Regulations which provides that the post of Assistant Executive
Engineer shall be filled by promotion. It provides that 75% shall be
filled up by promotion of graduate Assistant Engineers on the basis
of seniority-cum-merit and 25% by promotion of non-graduate
Assistant Engineers on the basis of seniority-cum-merit. It is
therefore contended that since there are two sources from which
the posts of AEEs are required to be filled up by promotion, a
combined seniority list of direct recruits and promotees is required
to be prepared and published. In this regard, the learned counsel
relied upon the decision in the case of V.B. Badami and others
/vs./ State of Mysore reported in (1976) 2 SCC 901 and
reiterated in Gonal Bhimappa /vs./ State of Karnataka
reported in AIR 1987 SC 2359.
11. On this aspect, the learned counsels for the respondent
Board and the private respondents have submitted that the Board
has taken a decision to do away with the publishing of combined
seniority list of AE (graduates and non-graduates) as the promotion
is on the basis of seniority-cum-merit. It is also submitted by the
learned counsel for the private respondents that the petitioners who
were appointed subsequent to the respondents, by operating the
marginal list are yet to acquire the minimum experience of four
years mandatorily required to be eligible for promotion. Even
otherwise, the petitioners and private respondents seek promotion
from the same source. Therefore, the prayer is misconceived and
vexatious. The learned counsel places reliance on K.K.Dixit and
Others Vs. Rajasthan Housing Board and Another reported in
(2015) 1 SCC 474 to submit that the Board has rightly relied upon
the said decision and other decisions such as Challa Jaya Bhaskar
(2010) 13 SCC 348, Chandravarthi P.K. (2004) 3 SCC 734, Vijay
Singh Deora (1997) 3 SCC 118 and Shailendra Dania (2007) 5
SCC 535.
12. Heard the learned Counsels and perused the petition
papers.
13. In order to decide the first issue as to whether a
candidate subsequently selected from the marginal list could be
placed above the candidates from the original final select list, based
on the percentage of marks obtained in the recruitment process?,
clause 8(xiv) of the Regulation, 1981, has to be looked into. Clause
8(xiv) reads as follows:
8. Procedure for selection and recruitment:
(xiv) Preparation of approved list of candidate
found suitable:-
(a) The selection/recruitment committee shall
after interviewing the candidates select those
who are found suitable for appointment and
shall prepare a first consolidated list,
irrespective of class to which they belong,
arranging them in the order of merit, keeping
in view the number of existing vacancies to
be filled with a margin of 30%.
(b) The Committee will then prepare from out of
the first list separate lists containing the
names of candidates found suitable and equal
to the number of posts to be filled by various
categories of reserved candidates viz., S.C.,
S.T., etc. by arranging them in the order of
merit.
(c) The lists finally settled by confirming to clause
(a) and (b) above, shall constitute the lists of
candidates finally selected for appointment to
any particular category of the Board service
for which the selection is made.
NOTE:- If two or more candidates have secured
equal percentage of total marks in the
examination/test, and interview, the order
of merit in respect of such candidates shall
be fixed on the basis of their age, person/s
older in age being placed higher in the
order of merit.
(d) The list so prepared shall be valid till all the
vacancies notified, including those that may
arise subsequent to such notification, upon
the date of issue of appointment orders, are
filled up or six months whichever is earlier.
14. A plain reading of the said provision makes it clear that a
first consolidated list, irrespective of class to which the candidates
belong, shall be prepared, arranging the candidates in the order of
merit, which would also include 30% in excess of the number of
posts sought to be filled up, keeping in view the number of existing
vacancies, in terms of clause (xiv)(a). The Committee shall
thereafter prepare from out of the first consolidated list, separate
lists containing the names of candidates found suitable and equal to
the number of posts to be filled, having regard to the categories of
reserved candidates, by arranging them in the order of merit, in
terms of clause (xiv) (b). Sub-clause (c) of Clause 8 (xiv) makes it
clear that the lists prepared conforming to clauses (a) and (b) shall
constitute the lists of candidates finally selected for appointment.
15. The operation of the marginal list is permitted under sub-
clause (d) of clause 8 (xiv) to fill up such of the vacancies which
may arise on account of rejection of the candidature of a selected
candidate or for any of the reasons stipulated in clause 9 of the
Regulations, such as, medical fitness, unsatisfactory credentials and
testimonials, unsatisfactory verification of age etc. or non-
acceptance of the appointment order by the selected candidate. It
is therefore clear that the final select list shall be in terms of sub-
clause (c) of Clause 8(xiv). The subsequent selection by operating
the marginal list in terms of sub-clause (d) of Clause 8(xiv) cannot
be equated to candidates selected in terms of sub-clause (c) of
Clause 8(xiv). Candidates subsequently selected in terms of sub-
clause (d) shall form a different category, enlisted in an additional
final select list. Such candidates are required to be listed below all
the candidates earlier selected under the final select list. Just
because a candidate in the additional final select list picked up from
the marginal list had secured higher percentage of marks in the
selection process, he or she cannot be placed above originally
selected candidates, even if the candidate in the marginal list had
scored higher percentage of marks. We should bear in mind that
while preparing the final select list in terms of sub-clause (c),
regard shall be had to the number of vacancies in each category,
including the reserved category and accordingly candidates who
have secured the highest marks in each category are selected from
out of the list prepared in terms of sub-clause (b) of Clause 8(xiv).
When once the final select list is prepared and freezed, appointment
orders are issued. Accordingly, for appointments in terms of the
recruitment notification dated 23.02.2015, the final select lists in
terms of sub-clause (c) of Clause 8(xiv) was issued in the three
categories - AE (Electrical), AE (Civil) and AE (Mechanical), on
31.12.2015 and 21.01.2016. Appointment orders were issued to
such of the selected candidates on 06.06.2016 or thereabout.
16. Petitioners in W.P.No.51898/2019 who were selected
from the marginal list, were listed under additional final select list
under notifications dated 20.01.2017 and 27.03.2017.
Appointment orders were issued on 23.03.2017, 31.03.2017,
12.05.2017 and 29.07.2016. They have rightly been placed below
the originally selected candidates, in terms of the provisions of the
Regulations. The contention of the petitioners that they have
secured more marks than some of the private respondents and
some of the candidates selected in the final select list and
therefore, they should be placed above such
candidates/respondents in the gradation list, is misconceived. It
may be true that some of the petitioners who had competed for the
general category posts or posts reserved for backward classes may
have secured higher percentage of marks in the examination, but
when once the final select list is prepared in terms of sub-clause (c)
of clause 8(xiv), the petitioners lost out to candidates who had
secured more marks in their respective category. Thereafter, the
Board having issued appointment orders to candidates finally
selected, the petitioners were kept out of the fray. It is only
because some of the selected candidates did not report for duty or
were otherwise disqualified that the petitioners got an opportunity
in the place of such selected candidates, in the particular category
of post. Such candidates who were otherwise out of the fray, got a
second lease of life and were selected under an additional final
select list. Such candidates cannot claim that they should be placed
above a candidate originally selected in the final select list.
17. Clause 16 of the Regulations which provides the mode
and method of preparing the seniority list also takes care of the
contentious issue. Sub-clause (a) of Clause 16 provides that the
seniority of persons appointed by direct recruitment shall be in the
order of merit in which the candidates are arranged in the approved
list of candidates at the time of their first appointment. This clearly
shows that the candidates selected under the additional final select
list cannot claim to be listed along with the original final select list
candidates. As noticed earlier, the private respondents were
enlisted under the final select lists dated 31.12.2015 and
21.01.2016, whereas the private respondents were enlisted under
additional final select lists dated 20.01.2017 and 27.03.2017.
Therefore, even in terms of sub-clause (a) of Clause 16, the
petitioners who were selected under the additional list
subsequently, cannot contend that they have to be placed above
the private respondents since they had obtained more percentage
of marks in the recruitment process. Issue No.1 is answered
accordingly.
18. The action of the respondent-Board in placing the
petitioners in W.P.No.51898/2019 in the seniority list, below the
private respondents, is in accordance with the provisions of the
Regulations and no fault could be found in this regard.
19. The other contention of the learned Counsel for the
petitioners in W.P.No.51898/2019 that a common seniority list of
Assistant Engineers - Graduates and Non-Graduates was required
to be prepared, seems to be a vexatious contention, for the
following reasons:
i) No material is placed on record to show how the non-
preparation of combined seniority list has affected the
rights of the petitioners or in what way they are
aggrieved.
ii) The non-graduate Assistant Engineers are not made
parties to these proceedings.
iii) If the respondent-Board has taken a decision while
making reference to the judgment of the Apex Court
in the case of K.K.Dixit (supra), to do away with the
system of publishing integrated/combined gradation
list of Graduate and Non-Graduate Assistant
Engineers, the Non-Graduate Assistant Engineers who
are left with 25% of the promotional avenue to the
post of AEE may be the affected party and not the
petitioners who are Graduate Engineers.
iv) Information has been furnished by the respondent-
Board that out of 155 sanctioned posts of Graduate
AEs, at present 78 posts are occupied, while 77 posts
remain vacant. Similarly, out of 78 sanctioned posts
of Non-Graduate AEs, at present 42 are occupied and
34 posts remain vacant. It was therefore contended
that the allegation of the petitioners that Non-
Graduate AEs have occupied the posts reserved for
Graduate AEs, has no basis.
20. The other issue regarding clause 16(d) of the
Regulations providing for extension of joining time and whether
such candidates who assume charge after the period specified in
the appointment order lose the seniority originally assigned, is
again a non issue in these proceedings.
None of the petitioners and respondents are said to have sought for
extension of time to report for duty and nor has the respondent
Board denied seniority on such grounds to any of the parties to
these proceedings. Insofar as the petitioner in W.P.No.4473/2018
is concerned, the Board has admitted its mistake in denying
seniority to the petitioner.
21. Insofar as the petitioners in W.P.No.25266/2016 are
concerned, though there is merit in their contention that the private
respondents therein who were selected from the marginal list have
been placed above them in the seniority list, the difficulty is that
the final seniority list with respect to the Assistant Engineers
(Graduates) which was published on 26.12.2013 has been upheld
by this Court. Some of the aggrieved employees who stand on the
same footing as the petitioners, had filed W.P.Nos.19518-
19533/2014 in the case of V.Shilpa and Others Vs. The Chairman,
BWSSB, challenging the final gradation list dated 26.12.2013. By
order dated 04.09.2014 W.P.Nos.19518-19533/2014 was
dismissed, while upholding the final seniority list dated 26.12.2013.
Unfortunately, clause 8(xiv) (b) to (d) was not examined in the said
case. It is even more unfortunate that the decision of this Court in
W.P.Nos.19518-19533/2014 was not taken up in appeal. Though
learned Counsel Sri S.B.Mukkannappa, appearing for the petitioners
in W.P.No.25266/2016 submits while relying upon the decisions of
the Apex Court in the case of Amalgamated Coal Fields Limited
and Another Vs. Janapada Sabha Chhindwara and Others,
1963 Supp. (1) SCR 172 and Harichand and Others Vs.
Faridabad Complex Administration and Others (2005) 4 SCC
592 that the principles of res judicata is not applicable to a writ
petition filed under Article 226 of the Constitution of India, stricto
senso, this Court is of the considered opinion that a decision
rendered by a co-ordinate Bench of this Court cannot be upset by
another Bench, in keeping with the principles of judicial propriety.
It is left to the petitioners to work out their remedy in accordance
with established procedures. The respondent-Board, being bound
by the earlier decision in W.P.Nos.19518-19533/2014 has retained
the gradation list for the block period 01.04.2011 to 01.04.2013 in
the subsequent seniority list dated 13.08.2019.
22. For the reasons above stated, this Court proceeds to pass
the following:
ORDER
1. W.P.No.4473/2018 is allowed. The ranking of the
petitioner shall be reassigned in terms of the ranking of
the petitioner as found in the final select list dated
21.01.2016.
2. W.P.No.25266/2016 and W.P.No.51898/2019 stand
dismissed.
No order as to costs.
In view of the disposal of the writ petitions, pending
Interlocutory applications do not survive for consideration and
accordingly the same stand disposed of.
SD/-
JUDGE
KLY/JT
