Karnataka High Court
Mr. M. Manju Prasad vs State Of Karnataka on 21 September, 2023
Bench: Chief Justice, Krishna S Dixit
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WA No. 797 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO. 797 OF 2023 (S-RES)
BETWEEN:
MR. M. MANJU PRASAD,
S/O MR M MUNIYAPPA,
AGED ABOUT 37 YEARS,
RESIDING AT NO 131, ITPL SERVICE ROAD,
PATTANDUR AGRAHARA,
WHITE FIELD, BANGALORE 560 066.
...APPELLANT
(BY SRI. SWAMY N B N.,ADVOCATE)
AND:
Digitally signed 1. STATE OF KARNATAKA,
by SHARADA BY ITS CHIEF SECRETARY,
VANI B VIDHANA SOUDHA,
Location: HIGH DR B R AMBEDKAR VEEDHI,
COURT OF BANGALORE 560001.
KARNATAKA
2. THE COMMISSIONER
DEPARTMENT OF SOCIAL WELFARE,
M.S.BUILDING, DR. B.R. AMBEDKAR VEEDHI,
BANGALORE 560 001.
3. THE PRINCIPAL SECRETARY
DEPARTMENT OF MEDICAL EDUCATION,
M.S.BUILDING, DR. B.R. AMBEDKAR VEEDHI,
BANGALORE 560 001.
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WA No. 797 of 2023
4. THE DEAN-CUM-DIRECTOR
GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE,
FORT, BANGALORE 560 002.
...RESPONDENTS
(BY SMT.NILOUFER AKBAR., AGA)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR THE
RECORDS IN W.P. No. 17537/2022 AND SET ASIDE THE
ORDER PASSED ON 6TH JUNE 2023 IN W. P. No. 17537/2022 BY
THE LEARNED SINGLE JUDGE AND CONSEQUENTLY DIRECT
THE FOURTH RESPONDENT-DEAN AND DIRECTOR,
GOVERNMENT DENTAL COLLEGE AND RESEARCH INSTITUTE,
BANGALORE TO FILL UP BACK LOG VACANCIES THAT HAS
ARISEN AND REFLECTED IN ANNEXURE-B TO WRIT PETITION
EITHER BY PROMOTION OR SELECTION IN ACCORDANCE WITH
LAW WITHIN A TIME FRAME AND PASS SUCH FURTHER ORDER
OR ORDERS AS THIS HONBLE COURT MAY DEEM FIT IN THE
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has preferred this intra court appeal for
calling in question a learned Single Judge's order dated
06.06.2023 whereby his W.P.No.17537/2022 (S-RES)
came to be disposed off without granting substantive relief
as sought for therein. Of course, the learned Judge has
permitted the appellant to make an appropriate
representation and that if one is made, the 3rd
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WA No. 797 of 2023
Respondent-Principal Secretary, Department of Medical
Education, GOK should consider the same within an outer
limit of eight weeks.
2. Learned counsel appearing for the appellant seeks
to falter the impugned order on the ground that: The
statistical data as to the vacancy position was available on
record; backlog recruitment is a part of Reservation Policy
of the State; if backlog vacancies are kept unfilled, that
would defeat the State Policy of uplifting the downtrodden
and that would militate against the provisions of Articles
14 & 16 of the Constitution of India in the light of a catena
of decisions of the Apex Court. So arguing he seeks the
setting aside of impugned order and allowing of the writ
petition.
3. Learned Additional Government Advocate appears
for Respondent Nos. 1, 2 & 3; learned Panel Counsel Sri
K.Sreedhar is requested to appear for the 4th Respondent-
Dental College & Research Institute. Appeal is resisted on
the reasoning of the learned Single Judge who has
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permitted the appellant to give an appropriate
representation and timeline is prescribed for such
consideration.
4. Having heard the learned counsel for the parties
and having perused the appeal papers, we are inclined to
grant indulgence in the matter as under and for the
following reasons:
(a) The prayer in the writ petition was essentially for a
direction to the respondents to undertake the exercise of
filling of the backlog vacancies that are earmarked for the
members of Scheduled Castes, Scheduled Tribes &
Backward Communities, in the Respondent-Institution,
within a time frame. The learned Single Judge proceeded
on an erroneous factual premise that the statistical data as
to the backlog vacancy position was not available when it
was very much on record. That was not the defense of the
respondents to oppose the writ petition. Thus the
impugned order suffers from the vice of misdirection in law
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and therefore is liable to be voided, as rightly argued by
counsel for the appellant.
(b) It is pertinent to reproduce what the official
respondents who happen to be answering parties had
stated in paragraphs 4 to 8 in their Statement of
Objections filed on 30.11.2022. They read as under:
4. It is submitted that, on the receipt of the
notice dated 18-03.2022 from Mrs.
N.B.Lakshmi, Advocate issued a notice to 2nd
Respondent for intimating the Dean and
Director, Government Dental College and
Research Institute, Bangalore have not been
filled backlog posts in Government Dental
College and Research Institute, Bangalore since
2007 and she requested to direct the college to
fill the same within a time frame, based on the
said notice being in accordance with the
direction from the 2nd Respondent letter dated
09-05-2022.
5. It is further submitted that the cabinet
sub-committee had issued a direction to all the
departments to fill the backlog posts within
three months from 29-01-2022 as per
proceedings of the Meeting of the Cabinet Sub-
Committee constituted to supervise the filling
up of backlog posts belonging to Schedule
Caste and Schedule Tribe added by the Hon'ble
Chairmanship of the Minister for Heavy and
Medium Irrigation Department.
6. It is further submitted that, the Writ
Petition No.100505/2022 order dated 06-07-
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2022, Hon'ble High Court of Karnataka had
issued a direction to the Department of Social
Welfare to ensure that the backlog vacancies
pertaining to Schedule Castes, Scheduled
Tribes and Backward Communities shall be
filled expeditiously as possible in view of the
clearance given by the Finance Department.
7. It is further submitted that the
Government Letter No.SWD 379 SLP 2022
dated 06.07.2022 issued by the Under
Secretary-1 to Government, Department of
Social Welfare had issued a direction to all
departments to fill up backlog vacancies as per
proceedings dated 21-06-2022 including in the
Government Dental College and Research
Institute, Bangalore is not dealt with.
8. It is further submitted that, the Dean and
Director, Government Dental College and
Research Institute, Bangalore as on date not
taken steps for filling up backlog posts by filling
through direct recruitment or by promotion as
per the directions given by the 2nd Respondent
vide letter dated 09-05-2022."
(c) Learned counsel for the appellant is more than
justified in submitting that the backlog vacancies being
earmarked for the downtrodden communities, cannot be
left unfilled in eternity. The continuation of vacancies
would virtually amount to denial to these communities a
preferential treatment as constitutionally ordained. That
would eventually deprive community representation in the
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public employment and therefore cannot be countenanced.
As already mentioned above, there is a letter of the 2nd
respondent dated 09.05.2022 addressed to the
respondent-college; there is a direction issued by a
learned Single Judge of this court in W.P.No.100505/2022
between APPANNA TALAWAR vs STATE OF KARNATAKA
disposed off on 06.07.2022 for filling up the backlog
vacancies; the Cabinet Sub-Committee in its meeting held
on 21.01.2022 had also instructed the same. This apart,
the Government vide letter dated 06.07.2022 directed all
its Departments to fill up backlog vacancies in terms of the
above Recommendation of the Cabinet Sub-Committee.
d) It is pertinent to reproduce what the Apex Court in
STATE OF UTTAR PRADESH vs. SANGAMNATH PANDE
(2011) 2 SCC 105 has observed as under:
"...The exercise of identifying the year-wise
and cadre- wise vacancies ought to have been
conducted by the State prior to the issuance of
the advertisement as rightly noticed by the
learned single Judge. The purpose of introducing
a roster system was to ensure that the
percentages of reservation provided for various
categories of persons is effectively and speedily
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achieved. This can only be done if the
department concerned identifies the year-wise
vacancies in the cadre. Once the vacancies are
identified, it is enjoined upon the authorities to
ensure that the selection procedure is completed
speedily. This is necessary to avoid uncertainty
to all categories of candidates. General category,
as well as, the reserved category candidates are
likely to be adversely affected in case the
vacancies are not filled within a reasonable
period of time. As a result of undue delay,
certain candidates will always be in the danger of
becoming overage to apply for some particular
posts falling in a particular year of recruitment.
Unnecessary lethargy in filling up the posts
would also lead to further uncertainty and chaos
among the recruits with regard to their seniority,
confirmation and promotions. Such a situation
only gives rise to unavoidable litigation, lasting
for many long years. This case epitomizes such
malaise... . In our opinion, the State
Government, in the present case, ought to have
initiated the necessary selection procedure upon
due verification of the posts available for the
reserved categories. It was not sufficient to
merely send the requisition to the Public Service
Commission. It was necessary for the State to
pursue the matter with the Public Service
Commission for completion of the selection
process. Otherwise, the very purpose of
introducing the roster system and a running
account would be totally defeated.We, therefore,
reiterate that it is necessary for the department
to identify year-wise vacancies for the cadre. It
is also necessary to fill up the posts speedily in
order to avoid certain candidates being rendered
ineligible as they may have become overage. It
is for this reason that Section 3 has placed
importance on the year of recruitment as also on
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the process of selection. In our opinion, the
authorities have been rather casual in their
approach in implementing the reservation policy,
in letter and spirit. We are, however, conscious
of the fact that ...the 367 posts lying vacant for a
number of years are meant only for the reserved
categories. They have been calculated on the
basis of the percentages reserved for various
categories. In segregation of the aforesaid posts,
none of the unreserved categories would be
deprived of any posts which ought legitimately to
have fallen to their share."
e) It is pertinent to note that at para 8 of the
Statement of Objections, the Respondent Nos. 1, 2 & 3
complainingly stated about the Respondent-Institute not
undertaking the recruitment to backlog vacancy, despite
2nd Respondent's letter dated 09.05.2022. However, it
sounds strange to us that at para 9, the official
respondents seek dismissal of the writ petition, despite a
stand taken in writing favourable to the petitioner. The
Government being a constitutional functionary, is expected
to conduct itself as a bonafide & scrupulous litigant. The
Government should rejoice when an injured citizen secures
victory in a worthy legal battle, against it. Entities that fit
into the constitutional contours of Article 12 are expected
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not to take up unfair stand, be it in pleadings or in
evidence; their object should not be, somehow to secure
dismissal of citizens causes invariably, and regardless of
their intrinsic worth. The Apex Court in DILBAGH RAI
JARRY vs. UNION OF INDIA AND OTHERS, (1974) 3 SCC
554, has observed as under:
"... it must be remembered that the State is no
ordinary party trying to win a case against one of
its own citizens by hook or by crook; for the
State's interest is to meet honest claims,
vindicate a substantial defence and never t score
a technical point or overreach a weaker party to
avoid a just liability or secure an unfair
advantage, simply because legal devices provide
such an opportunity. The State is a virtuous
litigant and looks with unconcern on immoral
opportunity. The State is a virtuous litigant and
looks with unconcern on immoral forensic
successes so that if on the merits the case is
weak, government shows a willingness to settle
the dispute regardless of prestige and other
lesser motivations which move private parties to
fight in court..."
In the above circumstances, this Appeal is allowed;
the impugned order of the learned Single Judge is set at
naught; Appellant's W.P.No.17537/2022 is favoured; a
Writ of Mandamus issues to the Respondents to undertake
or caused to be undertaken the Backlog Recruitment Drive
in all the Government Departments and Institutions
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forthwith, in terms of extant Orders, Circulars &
Notifications, and accomplish the task on a war footing,
within an outer limit of six months.
Costs are reluctantly made easy.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Snb/
