Karnataka High Court
The State Of Karnataka vs Smt. Jameela Khathoon on 25 July, 2024
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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
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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
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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,
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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
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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
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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
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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
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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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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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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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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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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/-
