Karnataka High Court
Sri. Govindaraju A vs Karnataka State Warehousing ... on 2 September, 2024
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WP No. 3426 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 3426 OF 2022 (S-RES)
BETWEEN:
SRI. GOVINDARAJU A
S/O. ANANDAPPA
AGED ABOUT 28 YEARS
R/AT. VEERAGANAHALLI (AT POST)
SIRA TALUK,
TUMKURU DISTRICT-572135.
...PETITIONER
(BY SRI. ANANDARAMA K., ADVOCATE)
AND:
1. KARNATAKA STATE WAREHOUSING CORPORATION
HAVING ITS HEAD OFFICE AT
"UGRANA BHAVANA"
NO.43, PRIMEROSE ROAD,
BANGALORE-560025
REPRESENTED HEREIN BY ITS
MANAGING DIRECTOR
Digitally signed
by
MARKONAHALLI 2. STATE OF KARNATAKA
RAMU PRIYA
Location: HIGH CO-OPERATION DEPARTMENT
COURT OF M.S. BUILDING
KARNATAKA
BENGALURU-560001
REPRESENTED BY IS DEPUTY SECRETARY
...RESPONDENTS
(BY SMT. URMILA PULLAT, ADVOCATE FOR SRI. JAGADEESH B.N.,
ADVOCATE FOR RESPONDENT NO.1;
SRI. S.T. NAIK, ADDITIONAL GOVERNMENT ADVOCATE FOR
RESPONDENT NO.2)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
PERTAINING TO THE ENDORSEMENT
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WP No. 3426 of 2022
NO.KaRaUNi/Aadalitha/97/2021-22/2808 DATED 29.10.2021
(ANNEXURE-S) ISSUED BY THE KARNATAKA STATE WAREHOUSING
CORPORATION, RESPONDENT NO.1 HEREIN AND QUASH THE
ENDORSEMENT NO.KaRaUNi/Aadalitha/97/2021-22/2808 DATED
29.10.2021 (ANNEXURE-S) ISSUED BY THE KARNATAKA STATE
WAREHOUSING CORPORATION, RESPONDENT NO.1 HEREIN AND
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The petitioner has sought for a writ in the nature of
certiorari to quash the endorsement dated 29.10.2021 issued
by the respondent No.1. He has also sought for a writ in the
nature of mandamus directing the respondent No.1 to consider
his candidature for direct recruitment and appointment to the
post of Accountant under category 2A by preparing, publishing
and operating an additional/wait list pursuant to the
recruitment notification bearing No.KSWC/Administration/Direct
Recruitment/391/2016-2017 dated 29.04.2016.
2. The petitioner contends that the respondent No.1
issued a notification dated 29.04.2016 inviting applications
from the eligible candidates to fill up 114 posts in Group - 'A',
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'B' and 'C'. Out of the aforesaid notified posts, there were 11
vacancies in the post of 'Accountant' in Group 'C'. The
petitioner had applied against the post of Accountant under
category 2A. The petitioner was permitted to face the
competitive examination that was held on 12.02.2017. Later a
merit list was prepared by the respondent No.1, which showed
that, the petitioner had secured 58.041%. A person named
Hanumant Badakappanavar was placed above him, as he had
secured 58.5238%. Later the respondent No.1 prepared a
provisional list in the ratio of 1:2 and the candidates who made
it to ratio of 1:2 list were called for verification of documents.
The petitioner was also called for verification of documents in
terms of a letter dated 06.12.2017. After such verification, the
respondent No.1 published a provisional selection list for 114
posts notified, which was in the ratio of 1:1. Though several
objections were raised against the provisional select list, the
same were purportedly considered by the respondent No.1.
The petitioner contends that the respondent No.1 had taken a
policy decision that in the event the candidates whose names
appeared in the final select list, did not report to duty, the
candidates from the wait list or additional list would be called
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for the recruitment. The respondent No.1 published a final
select list on 07.01.2019. However, the petitioner was not
selected in category 2A, but the name of Mr. Hanumant
Badakappanavar appeared in the list in category 2A. The
petitioner contends that said Mr. Hanumant Badakappanavar
did not report to duty, though a final opportunity was given to
him to report on or before 30.11.2019. Hence, the petitioner
contends that the candidature of the said Mr.Hanumant
Badakappanavar stood cancelled. The petitioner further
contends that out of 113 posts, for which selections were made
based on the final select list, only 46 candidates had reported
to duty which was confirmed by respondent No.1 vide its letter
dated 19.02.2020. Therefore, the petitioner contends that it
was incumbent on the part of respondent No.1 to prepare an
additional list as per the decision taken by it, while considering
the objections filed by the candidates to the provisional select
list. The petitioner also contends that this was the mandate of
the Karnataka Civil Services (Direct Recruitment by Competitive
Examinations and Selection) (General) Rules 2006 (henceforth
referred to as 'Rules, 2006' for short).
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3. The petitioner contends that if only the respondent
No.1 had prepared an additional list, he would have been
entitled to be appointed under category 2A to the post of
Accountant as the selectee Mr. Hanumant Badakappanavar did
not report. In that regard, the petitioner submitted a
representation dated 10.12.2019 to operate the additional list
and since that was not considered, the petitioner approached
this Court in W.P.No.9120/2020. This Court in terms of the
order dated 31.07.2021 disposed off the writ petition directing
the respondent No.1 to consider the representation of the
petitioner and pass appropriate orders regarding publication or
otherwise of additional/wait list in so far as the post of
Accountant is concerned. Following this direction, the petitioner
submitted another representation dated 26.08.2021 requesting
the respondent No.1 to implement the order dated 31.07.2021
passed by this Court in W.P.No.9120/2020. The respondent
No.1 then issued an endorsement dated 29.10.2021 stating
that there is no provision for publication of an additional list
and that the petitioner was not selected for the post of
accountant as Mr. Hanumant Badkappanavar had scored higher
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than the petitioner and therefore, candidature of the petitioner
was not considered.
4. The petitioner contends that the respondent No.1
had in the year 2012 issued a notification dated 21.12.2012
inviting applications for 18 posts of 'Technical Assistants' in the
respondent No.1. The respondent No.1 had published a final
select list of the candidates and thereafter an additional list of
candidates was published, out of which four candidates were
selected. The petitioner contends that the contention of the
respondent No.1 that there is no provision for preparing an
additional list is perverse and unsustainable. The petitioner
contends that the impugned endorsement dated 29.10.2021
issued by the respondent No.1 warrants interference and
suitable directions deserves to be issued to the respondent
No.1 to prepare additional list and issue appointment order to
the petitioner.
5. The learned counsel for the petitioner invited the
attention of the Court to Karnataka State Warehousing
Corporation (Recruitment and Conditions of the employees)
Regulations), 2005 (henceforth referred to as 'Regulations,
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2005' for short) and referred to the Procedure and Method of
Recruitment as contemplated under Rule 3 of Regulations 2005
. He also invited the attention of the Court to Rule 17 of
Regulations 2005 and contended that the provisions of
Karnataka Civil Service (General Recruitment) Rules, 1977, the
Karnataka Civil Service (Probation) Rules, 1977, in so far as
they are not inconsistent with provisions of these regulations
shall mutatis mutandis apply to the employees of the
Corporation. He also contends that the other Rules relating to
Seniority, Promotion, Performance Report, Time Bound
Advancement, Service and Kannada Language examination,
advance for Education of children of employees, declaration of
Assets and Liabilities statement of employees, or any other
appropriate Rules and Guidelines of the State Government and
the guidelines laid down by the State Government from time to
time shall mutatis mutandis apply to the employees of the
Corporation. He submitted that the State Government in terms
of the notification dated 26.10.2007 notified the Karnataka
State Warehousing Corporation (Recruitment and Conditions of
employees) (Amendment) Regulations, 2007, in terms of
which, Rule 17 of the erstwhile regulations was not disturbed.
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He further contends that the State Government had notified the
Karnataka Civil Services (Direct Recruitment by Competitive
Examinations and Selection) (General) Rules, 2006, in terms of
which, it amended Rule 8 which reads as follows:
"8. Final Selection list of candidates:-
(1) In respect of technical posts: The Commission
shall prepare a final selection list of candidates
eligible for appointment on the basis of merit
determined on the basis of the aggregate of the
percentage of the total marks secured in the
qualifying examination and of the marks
secured in the interview and taking into
consideration of the reservation policy of the
State. The number of names of candidates to be
included in such list shall be equal to the
number of vacancies notified.
(2) In respect of non-technical posts: The
commission shall prepare a final selection list of
candidates eligible for appointment on the basis
of merit determined on the basis of percentage
of total marks secured in the competitive
examination and the marks secured in the
interview and taking into consideration the
reservation policy of the State.
(3) The final selection list prepared under sub-rules
(1) and (2) shall be published in the Karnataka
Gazette and in such other media as the
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commission may deem fit and in such manner
as the State Government may direct and a copy
thereof shall be sent to the appointing authority
concerned. The fact of selection shall be
intimated to the candidates selected by the
commission."
He therefore, contends that it was incumbent upon the
respondent No.1 to have prepared the additional list of
candidates who were not included in the main list and not
secured more than 50% in respect of technical post and 10% in
respect of non-technical posts, it may be operated only once to
the extent of unreported vacancies. He contends that if the wait
list was prepared, the petitioner would have stood a fair chance
to be appointed, as he was next in line in category 2A.
6. The respondent No.1 has filed a detailed statement
of objections contending that the recruitment notification did
not spell out that an additional list would be prepared. It is
contended that there is no provision in the regulations relating
to the appointment in the respondent No.1, which provide for
preparation of an additional list. It is also contended that in
similar circumstances, a Coordinate Bench of this Court in
W.P.No.13587/2020 relating to the same recruitment
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notification did not grant the relief to the petitioner therein,
who claimed that an additional or wait list has to be prepared.
It contended that this Court held,
"Even a candidate whose name is included in
the select list has no indefeasible right to
appointment even if vacancy exists. When a
candidate whose name finds place in the select has
no right to seek for appointment, the petitioner who
is not selected nor finds place in the select list
cannot insist or demand for publication of either
waiting list or additional list."
The respondent No.1 therefore, contends that the
petitioner, who is similarly placed, is not entitled to any reliefs.
It is further contended that the respondent No.1 in its Board
Meeting held on 18.06.2020 has decided for cancellation of
candidature of 67 candidates who did not report and issue fresh
notification to fill up 67 posts. Hence, it is contended that
announcement of the additional list/wait list does not arise in
respect of Notification dated 29.04.2016. In so far as
applicability of the Regulation 17 of Regulations, 2005, it is
contended that intention of the legislature with respect to
applicability of 1977 Rules was only to the extent of if not being
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inconsistent with the provisions of the Regulations. It is
contended that Regulation 17(2) of Regulations, 2005 which
relates to the applicability of all other Rules, does not mention
anything relating to wait list/additional list. Therefore, it is
contended that Regulation 17 of Regulations, 2005 must have
read as a whole and must be made applicable while applying
2006 and 2015 Rules. Therefore, it is contended that there is
no provision that mandates preparation of additional list/wait
list.
7. The learned counsel for the respondent No.1 has
reiterated the above contentions and contended that the
petitioner has no right to compel the respondent No.1 to
prepare an additional list and also has no right to compel the
respondent No.1 to appoint him against the post of Accountant
in Category - 2A.
8. I have considered the submissions made by the
learned counsel for the petitioner as well as the learned counsel
for the respondent No.1.
9. A perusal of the recruitment notification dated
29.04.2016, does not refer to any Rules that warrants
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preparation of additional list. The whole recruitment process is
to be in accordance with the notification and therefore, the
validity of the attempt of the petitioner to import the Karnataka
Civil Services (Direct Recruitment by Competitive Examinations
and Selections) (General) (Amendment) Rules, 2015
(henceforth referred to as 'Rules, 2015') needs to be
considered.
10. The petitioner has placed on record a call notice
dated 06.12.2017 issued to him, which contains special
instructions. One of the instructions is that if the applicant fails
to appear for document verification, his candidature would be
treated as canceled. It also bears a mention that the
candidates, whose documents are verified cannot be treated as
being appointed. The respondent No.1 while considering certain
objections to the provisional list, held proceedings on
09.03.2018 and in response to one of the objections, as to why
a wait list is not announced since many candidates in the
provisional list had opted for other posts, respondent No.1
responded that it would operate wait list in case, the candidates
selected do not report or appointment orders are not issued to
them for whatever reasons. Therefore, in the contemplation of
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the respondent No.1, it was incumbent to prepare an additional
list. The respondent No.1 has not prepared the additional list
but has proceeded to cancel 67 posts to which, the selected
candidates did not report. The attempt of the learned counsel
for the petitioner to contend that provisions of the Rules, 2015
is applicable, is predicated on Regulation 17 of the Regulations
2005, which deal with the condition of service relating to
seniority, promotion, performance report, time bound
advancement, service and Kannada language examination,
advance for education of children of the employees, declaration
of Assets and Liabilities statement by the employees or any
other appropriate Rules and guidelines of the State
Government and the guidelines laid down by the State
Government from time to time. A reading of the Rule 17(2) of
the Regulations, 2005 makes it evident that all rules relating to
condition of service post appointment are applicable to a person
but does not affect the rules relating to the direct recruitment
to post under the respondent No.1. A perusal of the Rules,
2015 referred above, goes to show that they are applicable
only in respect of appointments made by the State through a
selection agency. The learned counsel for the petitioner was
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not able to point out any Regulations framed by the respondent
No.1, which provided for preparation of an additional list. Even
assuming that respondent No.1 was bound to prepare an
additional list so as to enable it to operate additional list in the
event of candidates selected in the final select list do not
appear or do not report, the discretion to operate such an
additional list is entirely upon the respondent No.1. This could
be based on the various consideration and criteria such as
suitability and eligibility of the person, whose name appears in
the additional list.
11. In this regard, it is profitable to refer to the
judgment of the Hon'ble Apex Court in the case of The State
of Karnataka and others vs. Smt. Bharathi S [2023
Livelaw (SC) 472]. While considering the question whether
the State Government owes a duty to fill up vacancy from
additional list, the Hon'ble Apex Court held that in the absence
of mandatory provision, the decision to fill all the vacancies
from the additional list is left to the wisdom of the State. The
Hon'ble Apex Court no doubt added a caveat that the State
cannot act arbitrarily and its action will be subject to judicial
review.
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12. Yet another fact that needs to be considered is, if
the respondent No.1 is directed to prepare an additional list in
so far as petitioner is concerned, then that would open a
Pandora's box as other candidates would be knocking at the
doors of this Court, for an additional list for the posts applied
by them. In that view of the matter, though this Court had
reserved one post to the petitioner, it is not appropriate to
direct respondent No.1 at this length of time to prepare an
additional list and to operate it so as to grant an order of
appointment to the petitioner.
13. Hence, this writ petition is dismissed. However, it
is open for the respondent No.1 to proceed to issue an
appropriate Notification, which shall not be later than three
months from the date of receipt of a certified copy of this
Order.
Sd/-
(R. NATARAJ)
JUDGE
HJ/PMR
