Karnataka High Court
Smt. B. Mumtaz vs The Direcotr Of Municipal ... on 14 July, 2022
Bench: S.Sunil Dutt Yadav
-1-
WP No. 6576 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO.6576 OF 2021 (S-RES)
BETWEEN:
1. SMT. B. MUMTAZ
D/O LATE ISMAIL SAB
AGED ABOUT 46 YEARS,
OCC: SECOND DIVISION ASSISTANT
TOWN MUNICIPAL COUNCIL
MALEBENNUR
HARIHARA TALUK
DAVANAGERE DISTRICT - 577 530.
... PETITIONER
(BY SRI. M S CHANDRASHEKAR BABU, ADVOCATE)
AND:
1. THE DIRECTOR OF MUNICIPAL ADMINISTRATION
GOVERNMENT OF KARNATAKA
"MINI TOWERS"
DR B.R. AMBEDKAR VEEDHI
Digitally signed by BANGALORE - 560 001.
VIJAYA P
Location: High
Court of 2. THE DEPUTY COMMISSIONER
Karnataka DAVANAGERE DISTRICT - 577 001.
3. THE TOWN MUNICIPAL COUNCIL
MALEBENNUR
HARIHARA TALUK
DAVANAGERE DISTRICT - 577 530.
-2-
WP No. 6576 of 2021
4. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF URBAN DVELOPMENT
M S BUILDINGS
BANGALORE - 560 001.
... RESPONDENTS
(BY SMT. M.C. NAGASHREE, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ENDORSEMENT DTD 21.1.2021 PASSED BY THE R-1 AT
ANNEXURE-K AND ETC AND DIRECT THE R-1 TO 4 TO
CONSIDER THE CASE OF THE PETITIONER BASED ON HER
EDUCATIONAL QUALIFICATION WITH REFERENCE TO HER
EDUCATIONAL QUALIFICATION WITH REFERENCE TO HER
REPRESENTATION DTD.24.12.2020 AS PER ANNEXURE-J AND
ETC.
THIS W.P. COMING ON ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner had applied for appointment on
compassionate grounds. The said application was
forwarded to the Directorate of Municipal Administration,
Bangalore. The petitioner came to be appointed as
Second Division Assistant on 11.05.2001.
2. It is the case made out by the petitioner that she
was eligible for appointment as First Division Assistant on
the basis of her educational qualification and eligibility.
WP No. 6576 of 2021
It is submitted that representations were being made for
rectification of her appointment from Second Division
Assistant to that of First Division Assistant. The
representation is Annexure-'C'.
3. It is submitted that several similarly situated
persons as that of the petitioner had obtained orders of
rectification of their appointment and reliance is placed on
the order of this court in the case of H.N.Guruprasad v.
The Directorate of Municipal Administration and Others
(W.P.No.32634/2003 disposed off on 14.06.2006).
The petitioner submits that the appeal filed against
W.P.No.32634/2003 has been rejected. Thus the order in
Guruprasad's case has attained finality. The petitioner
submits that W.P.No.8726/2018 was filed which was
allowed as per the order at Annexure-'H' on 20.10.2020.
The petitioner had challenged the order of 17.06.2017 by
the respondent-State declining to accede to the request of
the petitioner to appoint her to the post of First Division
Assistant as against Second Division Assistant to which
WP No. 6576 of 2021
she was appointed. The court after detailed consideration
has referred to the order passed in Guruprasad's case in
W.P.No.32634/2003 at Para 8 and has specifically
adverted to the contention of the respondent regarding
Rule 6 (4) of the Karnataka Civil Services (Appointment on
Compassionate Grounds) Rules, 1996 ("the Rules" for
short) and has recorded a finding at Para 9 and 10 as
follows:
9. The undisputed facts of the case on
hand is that, the petitioner is similarly placed as
that of the petitioner in the aforestated writ
petition i.e., even the petitioner herein is
holding a qualification of degrees in Bachelor of
Arts and Bachelor of Education. In terms of the
aforestated judgment and the Government
Order dated 24.04.2003, she was entitled to be
considered for the post of First Division
Assistant when she had applied for an
appointment on compassionate ground. That
having not been done and when a request was
made by the petitioner to follow the judgment of
this Court (supra), the request is turned down
on the ground that her request is made after 16
WP No. 6576 of 2021
years of her appointment and accepting the
same.
10. The State Government had also
preferred W.A.No.2060/2006, before a learned
Division Bench contending the very same
contentions urged in the present case which
were negatived by the learned Division Bench
by its judgment dated 28.01.2009, in terms of
Rule 6(4) of the said Rules and held that the
said Rule 6(4) is not applicable to the case on
hand. The issue and reasoning rendered by the
learned Division Bench (supra) covers the case
of the petitioner herein on all fours.
4. The Coordinate Bench in the earlier writ petition
has considered the contention relating to applicability of
Rule 6 (4) of the Rules and has set aside the endorsement
dated 17.06.2017 and directed the State to reconsider the
matter in accordance with law and pass appropriate orders
keeping in mind the observations made and in terms of
the law laid down by this court in the aforesaid judgment.
Accordingly, it is clear that reliance on Section 6 (4) of the
Rules was turned down and consideration was directed to
WP No. 6576 of 2021
be made in terms of the law laid down in Guruprasad's
case as upheld in W.A.No.2060/2006 dated 28.01.2009.
Subsequent to the said judgment, fresh endorsement has
been made at Annexure-'K', a perusal of which would
show that the State has once again relied on Rule 6 (4) of
the Rules to negative the claim of the petitioner.
5. It is not open for the State after having suffered
an order in W.P.No.8726/2018 to urge any fresh grounds.
As the order in W.P.No.8726/2018 has attained finality,
the question of recourse to Rule 6 (4) would not arise as
regards to petitioner's claim.
6. Learned AGA relies on the order in
W.P.No.75144/2013 dated 20.02.2013 in the case of
Bharati v. State of Karnataka and Ors. That again is
an order that was not relied upon in the previous round of
litigation while W.P.No.8726/2018 was disposed off.
WP No. 6576 of 2021
7. However, it is noticed that the lis between the
petitioner and respondent for all practical purposes has
attained finality in view of the order passed by this court
and it would not be appropriate to re-open the settled
position between the petitioner and respondent as settled
in W.P.No.8726/2018.
8. Accordingly, the endorsement at Annexure-'K' is
set aside. The respondent to pass fresh order without
re-opening the settled position as found in
W.P.No.8726/2018 and pass order as regards the
appointment of petitioner as First Division Assistant. The
appointment shall be made effective from the date of
appointment with continuity of service however, without
any financial benefits. The order to be passed within a
period of not later than three months from today.
Sd/-
JUDGE
Np/-
