The State Of Karnataka vs Kailash S/O Basavaraj Burud
2023 Latest Caselaw 6297 Kant

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                              IN THE HIGH COURT OF KARNATAKA,
                                     KALABURAGI BENCH

                         DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
                                             PRESENT
                        THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                               AND
                            THE HON'BLE MR. JUSTICE RAJESH RAI K

                           WRIT APPEAL NO.200037 OF 2023 (S-RES)
                      BETWEEN

                      1. THE STATE OF KARNATAKA,
                         THROUGH ITS SECRETARY TO GOVERNMENT
                         SOCIAL WELFARE DEPARTMENT,
                         M.S. BUILDING BENGALURU-01.

                      2. THE DEPUTY COMMISSIONER,
                         BIDAR-585401.

                      3. THE ASSISTANT COMMISSIONER,
                         BIDAR DISTRICT, BIDAR-585401.

                      4. THE COMMISSIONER,
                         SOCIAL WELFARE DEPARTMENT,
                         BENGALURU-560001.
Digitally signed by
SOMANATH
PENTAPPA MITTE        5. THE DIRECTOR,
Location: HIGH
COURT OF                 SOCIAL WELFARE DEPARTMENT,
KARNATAKA                BIDAR-585401.

                      6.THE DEPUTY DIRECTOR,
                        SOCIAL WELFARE DEPARTMENT,
                        BIDAR-585401.
                                                               ...APPELLANTS

                      (BY SRI. MALLIKARUN BASAREDDY, GOVT. ADV.)
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AND

1. KAILASH S/O BASAVARAJ BURUD,
   AGED ABOUT 25 YEARS,
   OCC. NIL,
   R/O AT POSTT HALLIKHED -B,
   TQ: HUMNABAD DIST:BIDAR.

2. THE ZILLA PANCHAYAT,
   BIDAR BY CHIEF EXECUTIVE OFFICER,
   BIDAR-585401.
                                           ...RESPONDENTS
(BY SRI. SHAMBULING S. SALE, ADV. FOR R1
 SRI. PRASHANTH KUMMAN, ADV. FOR R2 )

   THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
HIGH COURT ACT, PRYING TO, CALL FOR RECORDS OF WRIT
PETITIN NO. 200672/20222 AND THEREBY PLEASED TO SET
ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE
IN W.P. NO. 200672/2022 ON 09.06.2022.

     THIS APPEAL IS COMING ON FOR ORDERS AND HAVING
BEEN HEARD AND RESERVED ON 29.08.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, RAJESH RAI K J., DELIVERED
THE FOLLOWING:
                      JUDGMENT

The appellants-State in this appeal has questioned

the legality and correctness of the order dated 09.06.2022

passed in W.P.No.200672/2022 by the learned Single

Judge, wherein the learned Single Judge allowed the writ

petition filed by the respondent No.1 and thereby quashed

the endorsement dated 28.01.2022 as per Annexure-P to

the writ petition, issued by the Deputy Commissioner,

Bidar-respondent No.2 and he is directed to consider the

representation filed by the respondent No.1 dated

13.12.2021 as per Annexure-K, K1, K2 and K3 seeking

appointment to the post of Assistant Cook in the light of

the decision taken by the Committee of appointment dated

25.08.2018 vide Annexure-G to the writ petition, within

an outer limit of three months from the date of receipt of

certified copy of the order.

2. The brief facts of the case which are necessary

for disposal of this appeal are that, the respondent No.1

made an application for the post of Assistant Cook before

the appellant No.2, pursuant to the notification dated

29.09.2016 issued by The Commissioner, Social Welfare

Department, Bidar. However, the said application filed by

respondent No.1 was rejected by the Deputy

Commissioner, Bidar, vide order dated 02.07.2011 as per

Annexure-C to the writ petition on the ground that the

respondent No.1 had not furnished the necessary

documents in support of his candidature. Thereafter,

respondent No.1 filed the objection/representation to the

appellants with necessary documents. After considering

the said objections, the Deputy Commissioner, Bidar and

also the Deputy Director, Social Welfare Department and

committee for appointing of cooks and securities by way of

direct recruitment i.e., appellant No.2 took a decision in

the meeting held on 25.08.2018 by appointing respondent

No.1 to the post of Assistant Cook, by observing that the

application filed by respondent No.1 was supported with all

necessary documents. However, the Appellant Authorities

have failed to appoint respondent No.1 in spite of the

order dated 25.08.2018.

3. Aggrieved by the same, respondent No.1 gave

various representations to the Appellant Authorities to

consider his candidature for appointment of Assistant

Cook. Since the said representations were not considered

by the competent authorities, respondent No.1

approached this Court seeking direction to the appellants

for his appointment, in W.P.No.200303/2021. The learned

Single Judge after hearing the learned counsel for the

parties and also considering the documents available on

record, allowed the writ petition vide order dated

24.11.2021, by directing the appellants i.e., the District

Commissioner and others to consider the

recommendations made by the Deputy Commissioner

dated 25.08.2018 and also the representation submitted

by the respondent and to take appropriate action.

4. After disposal of the said writ petition, the

Appellant Authorities once again failed to appoint

respondent No.1, as such he gave representations to the

Appellant Authorities dated 13.12.2021 requesting them to

comply the order passed by the learned Single Judge in

W.P.No.200303/2021. Thereafter, the Commissioner,

Social Welfare Department, issued an endorsement dated

28.01.2022 to respondent No.1 stating that since his

candidature had already been rejected on 02.07.2017,

there is no scope for re-consideration of the same and

accordingly his candidature for the post of Assistant Cook

was rejected. Aggrieved by the said endorsement, the

respondent No.1 once again approached this court by filing

W.P.No.200672/2022 and the learned Single Judge after

meticulously considering the facts and circumstances of

the case, allowed the writ petition filed by respondent No.1

vide order dated 09.06.2022, thereby quashed the

endorsement issued by the Commissioner dated

28.01.2022 so also directed the Appellant Authorities to

consider the representation submitted by the respondent

No.1 dated 13.12.2022 for his appointment to the post of

Assistant Cook, in the light of the decision taken by the

Committee for appointment headed by the District

Commissioner vide order dated 25.08.2018 within an

outer limit of three months, as stated supra. The said

order is challenged under this writ appeal.

5. We have heard the learned Government

Advocate appearing for the appellants so also the learned

advocate appearing for respondent No.1.

6. Learned Government Advocate vehemently

contended that the order passed by the learned Single

Judge is arbitrary and illegal, since the learned Single

Judge misread the decision taken by the Appellant

Authorities in the meeting dated 25.08.2018. The said

order of appointment of respondent No.1 does not have

any legal sanctity since the candidature of respondent

No.1 has already been rejected vide order dated

02.07.2017, for the reason that the respondent has failed

to produce the relevant documents i.e., certificates

pertaining to Kannada Medium and Rural candidature

along with the application. As such, considering all those

aspects of the matter, the committee rejected his

candidature on 02.07.2017. Hence, the subsequent order

passed by the committee dated 25.08.2018 cannot be

acted upon. Hence, the District Commissioner and

President of selection committee rightly issued an

endorsement dated 28.01.2022 by rejecting the

candidature of respondent No.1. He would further contend

that on the same day i.e., 28.01.2022, one more

endorsement was issued by the District Commissioner to

respondent No.1 stating that he has failed to produce the

relevant documents in the interregnum period of

20.10.2016 to 19.11.2016 as contemplated in the

notification issued for the said post. Later, the respondent

No.1 has produced those documents on 20.06.2017 i.e.,

after lapse of seven months. Hence, his candidature was

not considered by the committee. According to the learned

Government Advocate, the learned Single Judge failed to

consider those aspects, while passing the impugned order.

7. The learned Government Advocate would

further contend that as far as the subsequent order passed

by the District Commissioner dated 25.08.2018, there is

no such note-sheet available in the office file. As such

legal sanctity cannot be attached to the same and the said

order cannot be acted upon. He would further contend that

the writ petition No.200303/2021 is concerned, the

learned Single Judge directed the Appellant Authorities to

consider the representation made by respondent No.1

within an outer limit of four weeks and the said order was

very much complied by the Appellant Authorities and they

have considered the said representation by verifying all

the necessary documents meticulously and thereafter

issued an endorsement dated 28.01.2022 to respondent

No.1, that his candidature is rejected. Therefore, according

to the learned AGA, the learned Single Judge failed to

appreciate those aspects of the matter and passed the

impugned order, which is not sustainable under law.

Accordingly, he prays to allow the appeal.

8. Per contra, learned counsel appearing for

respondent No.1 would contend that, it is not in dispute

that the respondent No.1 belongs to schedule caste and he

is a student of Kannada medium and belongs to

Hyderabad-Karnataka Region. Though, he failed to

produce those certificates at the time of filing the

application for the post of Assistant Cook, but

subsequently he produced the same before the Appellant

Authorities. Accordingly, after considering the said

representation of respondent No.1, the District

Commissioner appointed him for the said post vide order

dated 25.08.2018. In the said order, the District

Commissioner has considered all the aspects of the

matter. Hence, according to the learned counsel, once the

selection committee passed an order of appointment, the

same cannot be withdrawn by the appellants, at later

stage, without any proper reason. He would further

contend that after his appointment order passed by the

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District Commissioner, dated 25.08.2018, the respondent

No.1 approached this Court in W.P.No.200303/2021 and in

the said writ petition, the learned Single Judge directed

the District Commissioner and others to consider his

representation for appointment. During the course of

hearing the writ petition, the Appellant Authorities did not

raise any objection in respect of the delay in production of

necessary documents by respondent No.1 as alleged in the

subsequent endorsement dated 28.01.2022. Hence, he

would submit that the Appellant Authorities intentionally,

and with an ulterior motive, rejected the candidature of

respondent No.1 by issuing the endorsement dated

28.01.2022. Therefore, the learned Single Judge by

considering all those aspects of the matter, allowed the

writ petition filed by respondent No.1. Hence the said

order passed by the learned Single Judge does not suffer

from any illegality. Accordingly, he prays to dismiss the

appeal.

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9. We have bestowed our anxious consideration to

the submission made by learned counsel appearing for the

parties so also perused the documents available on record.

10. Having heard the learned counsel for the parties

so also having perused the documents the point that

would arise for our consideration is;

            "Whether     the     learned        Single Judge     is
      justified    in    allowing         the     writ     petition
      No.200672/2022             vide            order       dated
      09.06.2022?"



     11.    On    careful      perusal      of    the    order    dated

25.08.2018 passed by the District Commissioner and the

President of selection committee, Social Welfare

Department, Bidar, depicts that, the candidature of the

respondent No.1 has been rejected by the said committee

vide order dated 02.07.2017, only for the reason that the

respondent No.1 failed to produce the certificates

pertaining to his study certificate in Kannada medium and

he belongs to Hyderabad-Karnataka region. However,

thereafter he produced the same before the authorities.

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After considering of those certificates, the District

Commissioner passed an order of appointment of

respondent No.1 for the post Assistant Cook. The

contention of the learned Government Advocate is that the

said order of appointment passed by the District

Commissioner cannot be considered for the reason that

the same was passed contrary to the rejection order

passed by the committee dated 02.07.2017 and also for

the reason that there is no note sheet available in the

office file of the District Commissioner in respect of

passing such an order by the committee. Hence, according

to the learned AGA, the committee rightly rejected the

subsequent representation of the respondent No.1 vide

endorsement dated 28.01.2022.

12. On a cursory glance of the proceedings dated

28.01.2022 passed by the District Commissioner and the

selection committee vide Annexure-N, it reveals that there

is no information in the file in respect of the proceedings

for passing the order of appointment of respondent No.1

dated 25.08.2018 by the District Commissioner and it is

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also mentioned that, the then District Commissioner and

Deputy Director of Social Welfare Department, were

transferred on 18.12.2019, after passing the order dated

25.08.2018. The submission of the learned Government

Advocate that the said order passed by the Deputy

Commissioner, cannot be acted upon, does not hold much

water for the reason that the order dated 25.08.2018 is

also passed by the then District Commissioner and the

Deputy Director of Social Welfare Department and the

selection committee headed by both of them and the said

order is a speaking order. Mere, for the reason that after

passing the said order, both the District Commissioner and

the Deputy Director of Social Welfare Department, were

transferred and non-availability of the note sheet in the

file cannot be a ground for cancellation of the appointment

order of respondent No.1.

13. Nevertheless, after passing the appointment

order by the District Commissioner dated 25.08.2018 as

per Annexure-G, the respondent No.1 approached this

Court by filing the Writ Petition No.200303/2021 to

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consider his representation for appointment as Assistant

Cook, in pursuance of the order dated 25.08.2018.

Wherein, the learned Single Judge, directed the appellants

to consider the representation made by the respondent

No.1 within a period of four weeks from the date of receipt

of certified copy of the order. The said order was passed

after hearing the appellants. But, strangely, the appellant

authorities represented by the Government Advocate did

not argue that, the order of appointment of respondent

No.1 was against the law. Hence, it is clear that after

passing the order by the learned Single Judge in

WP.No.200303/2021 dated 24.11.2021, the Appellant

Authorities passed the impugned endorsement dated

28.01.2022 by rejecting the candidature of the respondent

No.1. The said act of the appellant authorities is not

sustainable under law. Hence, the learned Single Judge

has rightly issued a writ of certiorari by quashing the

endorsement dated 28.01.2022, issued by the District

Commissioner as per Annexure-P and also directed the

appellants to consider the representations of respondent

No.1 vide Annexure-K, K1, K2 and K3 dated 13.12.2021,

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seeking appointment to the post of Assistant cook in the

light of the decision taken by the committee for

appointment dated 25.08.2018 and pass appropriate

orders. Hence, we find no good grounds to interfere with

the order passed by the learned Single Judge. In that view

of the matter, we are of the considered view that the writ

appeal is devoid of merits and the same is liable to be

dismissed.

14. Accordingly, we answer the point raised above

and proceed to pass the following;

ORDER The writ appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE msr