2010 Supreme(Kar) 1065

2011(3) KCCR 2099
High Court of Karnataka
THE HONOURABLE MR. JUSTICE N. KUMAR & THE HONOURABLE MR. JUSTICE ARALI NAGARAJ
NAGARAJU N R & OTHERS
VERSUS
THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY & OTHERS
Writ Petition Nos. 10605-10620 OF 2010 (S-KAT) C/w Writ Petition Nos.9965-9972 OF 2010; Writ Petition Nos. 8198-8213 OF 2010; and Writ Petition Nos. 8305-53 OF 2010 (S-KAT)
Decided on : 08-12-2010

Headnote:KARNATAKA RECRUITMENT OF GAZETTED PROBATIONERS (APPOINTMENT MADE BY COMPETITIVE EXAMINATION) RULES, 1997 - Rules 2(1) & 12 & Karnataka Government Servants (Seniority) Rules, 1957, Rule 2(a): [N.Kumar & Arali Nagaraj, JJ] Inter se seniority between recruitees appointed under two different notifications - Selection process in pursuance of first notification could not be completed because of judicial intervention - Held, In the instant case two notifications were issued in respect of distinct vacancies and the second notification was in respect of vacancies which arose subsequent to first notification. Persons who were ineligible to apply against the first notification such as age, educational qualification, etc., could apply against the second notification, as by that time, if they have acquired the necessary eligible criteria. Similarly, those who have failed in the written examination conducted in pursuance of the notification to fill up 403 vacancies, could also take the examination in pursuance of the second notification and stake their claim for recruitment. Those who passed in the examination in pursuance of the first notification did not take the subsequent examination. If they are to be placed higher than the persons who are recruited in pursuance of the earlier notification, it would be a travesty of justice and it results in heart burning in service. Merely because in one proceedings parties were lucky enough to get interim order modified and the selection process completed early, they cannot be conferred advantage of seniority when persons who were selected in pursuance of the first notification could not complete the selection process because of judicial intervention. None of the action of the Courts should really affect the interest of the parties. The Government was conscious that if the selection process is completed and appointment order is issued in pursuance of the second notification, the persons to be selected under first notification would be prejudiced. The Government could have waited for the finalization of the select list in respect of the earlier notification and after issuing appointment orders of the 1998 batch, they could have issued the appointment order in respect of 1999 batch. The appointment order of 1999 batch was issued on 25-1-2006 and 1-2-2006 whereas the appointment order was issued on 6-4-2006, 15-4-2006 and 2-6-2006. The difference was hardly few months. It was done in public interest. Therefore conscious decision was taken to appoint a person who were selected vide second list in public interest and at the same time to protect interest of persons who are selected vide first list. It was in this context the appointing authority has a right, at the time of appointment, in terms of Rule 5 to prescribe seniority. The Government to protect the interest of persons to be appointed in pursuance of the first notification, made it clear after narrating the entire history, that these persons appointed under the first notification would be seniors to those appointed under the second notification. Though Rule 5 stipulates how seniority has to be worked out, the said rule is not exhaustive. Any condition imposed in respect of seniority in the appointment order should stand the test of Articles 14 and 16. In instant case it satisfied said requirement. Persons who were appointed against the earlier notified vacancy thus should rank senior to the persons who were appointed against the subsequent notified vacancies, irrespective of the date of appointment and their joining duty.

       LABOUR & SERVICES - Seniority: [N.Kumar & Arali Nagraj,JJ] Inter-Se Seniority Between Direct Recruitees and Promotees - Determination of seniority of an Officer - Factors to be taken into consideration - Held, Any dispute regarding the seniority between a direct recruitee and a promotee, the question to be considered is not when the vacancy arose, when the Notification is issued, when the recruitment process began and when it ended. The test is, when the direct recruitee is appointed to the vacant post. If there is any delay in the direct recruitment process and in the mean while, promotions are given, promotees are appointed to the said vacant post, and it is thereafter direct recruitment takes place and are appointed, as promotees have already entered the said cadre putting a length of service from those that of a direct recruitee, they would be senior to the direct recruitees. If promotees are appointed first and thereafter the direct recruitees are appointed, for determining the seniority, the date of entry into the said cadre by the promotees and direct recruitees alone is to be taken into consideration. Who ever is appointed earlier, would be senior to the person who is appointed late. Further, Recruitment is just an initial process that may lead to eventual appointment in the service. But that cannot tantamount to an appointment. It is well known that while determining the seniority of an officer, the date of his appointment is a very important factor to be taken into consideration. The date of appointment to a permanent vacancy, whether of a promotee or a direct recruitee, will be the date, for determining the seniority. A direct recruitee can claim seniority only form the date of his regular appointment. He cannot claim seniority with effect from the time when direct recruitment vacancy arose. He cannot claim seniority from the date when he was not born in the service. The seniority will depend upon the length of service. The slots cannot be kept reserved for the direct recruitees for retrospective appointment. A person who enters the service first shall rank senior, unless there is some rule providing otherwise, which is held to be consistent with Articles 14 and 16 of the Constitution. Later direct recruitees cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority must be reckoned from the date of appointment to the said vacancy.

       LABOUR & SERVICES - Seniority: [N.Kumar & Arali Ngaraj,JJ] Determination of seniority between the direct recruitees in respect of Post for which two Notification have been issued - Held, A Notification may be issued to fill up a particular number of vacancies out of total number of vacancies which exist on the date of Notification. Subsequently, one more Notification could be issued to fill up the remaining vacancies. In such an event if the recruitment process initiated under the second Notification is completed earlier and appointment orders are issued and persons are appointed, their seniority is to be counted from the date of their appointment, vis-à-vis persons appointed under the earlier Notification. The persons appointed under the earlier Notification in point of time, cannot claim any seniority over the persons appointed under the subsequent Notification, who were appointed earlier to them. The reason is the said Notifications are not issued to fill up any specified vacancies, and all the posts were vacant on the date of first Notification. Further, It is possible that in order to recruit persons to a particular number of vacancies by direct recruitment, when the vacancies to be filled up are not specific and distinct, instead of initiating recruitment proceedings in respect of all the vacancies at once recruitment process may be initiated in installments for various administrative reasons.

       LABOUR & SERVICES - Seniority: [N.Kumar & Arali Ngaraj,JJ] Determination of seniority inter-se between direct recruitees recruited for specific posts by two independent Notifications - Held, When the recruitments process in initiated to fill up specific vacancies, the persons are appointed after the recruitment process is complete, to those specific vacancies. When the recruitment process is initiated to fill up those specific vacancies, those vacancies can be filled up only out of the persons who are selected in the said recruitment process, which is initiated in pursuance of the Notification. It is immaterial when they are appointed. Whenever they are appointed, they are to be appointed against those specific vacancies. Only after filling up the said vacancies, if vacancies arise, subsequent Notification is to be issued for recruitment to the said subsequent vacancies. It is only on the assumption that the earlier vacancies are filled up by the recruitment process which is undertaken, the subsequent vacancies could be taken into consideration, for issue of Notification, to recruit persons to the said subsequent posts. Further held, Persons who are recruited as against specific vacancies which arose subsequent to the earlier specific vacancies cannot be appointed against earlier specific vacancies for which recruitment process has commence, but appointments are not yet made, on the ground those vacancies still remain unfilled or vacant. It is because, persons who were appointed to the subsequent vacancies cannot be appointed to the earlier specific vacancies as they are not recruited against those Vacancies/posts. They were not selected in the recruitment process to fill up those vacant posts. Therefore, persons appointed against those subsequent vacant posts would necessarily have to be junior to the persons who are recruited to the earlier specific vacancies. Merely because the recruitment process for the subsequent vacancies was completed earlier in point of time and those selected were appointed at earlier point of time, they would not become seniors vis-à-vis the persons to be appointed as against earlier specific vacancies.

       LABOUR & SERVICES - Seniority: [N.Kumar & Arali Nagaraj, JJ] Order passed by the Karnataka Administrative Tribunal quashing condition No.2 imposed in the Order of appointment issued to the Respondent stating that they are Juniors to the 1998 batch recruitees and directing to treat the Respondents as seniors to the 1998 batch recruitees - Held, In the absence of any Rule providing for fixing of inter-se seniority of the persons who are selected to distinct vacancies under two different Notifications, merely because there is no specific Rule, injustice that would be caused to the persons who are selected, if the general Rule is applied cannot be ignored. The real test is if the well settled Rule is departed, whether that would be consistent with Articles 14 and 16 of the Constitution. When there is no specific Rule governing particular situation, to depart from the general rule, the rule cannot be insisted upon. What is to be seen is such circumstances, is departure from the general rule is valid or illegal and stands judicial scrutiny vis-à-vis Article 14 and 16. The Government to protect the interest of persons to be appointed in pursuance of the first Notification, made it clear after narrating the entire history, that these persons appointed under the first Notification would be seniors to those appointed under the second Notification. Though Rule 5 stipulates how seniority has to be worked out, the said rule is not exhaustive. Any condition imposed in respect of seniority in the appointment order should stand the test of Articles 14 and 16. In the present case it satisfied the said requirement. Persons who were appointed against the earlier notified vacancy should rank senior to the persons who are appointed against the subsequent notified vacancies, irrespective of the date of appointment and their joining duty. Further, When the condition No.2 is imposed in the Order of appointment to protect the interest of these innocent applicants who took examination in pursuance of the first Notification, passed the examination, but for no fault of theirs, have to wait for nearly six years to announce the results. Therefore the Tribunal committed serious error in striking down the condition which was just and reasonable.

       LABOUR & SERVICES - Seniority: [N.Kumar & Arali Nagaraj, JJ] Inter se seniority between direct recruits appointed under two notifications - Recruitment process initiated under second notification completed earlier - Held, When the vacancies to be filled up are not specific and distinct, instead of initiating recruitment proceedings in respect of all the vacancies at once, recruitment process may be initiated in installments for various administrative reasons. Therefore a notification may be issued to fill up a particular number of vacancies out of total number of vacancies which exist on the date of notification. Subsequently, one more notification could be issued to fill up the remaining vacancies. In such an event, if the recruitment process initiated under the second notification is completed earlier and appointment orders are issued and persons are appointed, their seniority is to be counted from the date of their appointment, vis-a-vis persons appointed under the earlier notification. The persons appointed under the earlier notification in point of time, cannot claim any seniority over the persons appointed under the subsequent notification, who were appointed earlier to them. The reason is the said notifications are not issued to fill up any specified vacancies, and all the posts were vacant on the date of first notification.

       LABOUR & SERVICES - Seniority: [N.Kumar & Arali Nagaraj, JJ] Direct recruitees vis-a-vis promotees - Held, The date of appointment to a permanent vacancy, whether of a promotee or a direct recruitee, will be the date, for determining the seniority. A direct recruitee can claim seniority only from the date of his regular appointment. He cannot claim seniority with effect from the time when direct recruitment vacancy arose. He cannot claim seniority from the date when he was not born in the service. The seniority will depend upon the length of service the slots cannot be kept reserved for the direct recruitees for retrospective appointment. A person who enters the service first shall rank senior, unless there is some rule providing otherwise, which is held to be consistent with Articles 14 and 16 of the Constitution. Later direct recruitees cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority must be reckoned from the date of appointment to the said vacancy. Therefore, any dispute regarding the seniority between a direct recruitee and a promotee, the question to be considered is not when the vacancy arose, when the notification is issued, when the recruitment process began and when it ended. The test is, when the direct recruitee is appointed to the vacant post. If there is any delay in the direct recruitment process and in the mean while, promotions are given, promotees are appointed to the said vacant post, and it is thereafter direct recruitment takes place and are appointed, as promotees have already entered the said cadre putting a length of service from those that of a direct recruitee, they would be senior to the direct recruitees. When vacancies arise, the rules prescribe the percentage of vacancies to be filled up by direct recruitment and promotion. No post is specifically ear-marked either for direct recruitment or for promotion. Those posts are intermingled. It is only the percentage of posts which have to be filled up according to the rules, between the direct recruitment and promotion. If promotees are appointed first and thereafter the direct recruitees are appointed, for determining the seniority, the date of entry into the said cadre by the promotees and direct recruitees alone is to be taken into considerations. Thus, whoever is appointed earlier, would be senior to the person who is appointed later.

       LABOUR & SERVICES - Seniority: [N.Kumar & Arali Nagaraj, JJ] Inter se seniority between direct recruitees recruited for specific posts by two independent notifications - Held, When the recruitment process is initiated to fill up specific vacancies, the persons are appointed after the recruitment process is complete, to those specific vacancies, when the recruitment process is initiated to fill up those specific vacancies, those vacancies can be filled up only out of the persons who are selected in the said recruitment process, which is initiated in pursuance of the notification. It is immaterial when they are appointed. Whenever they are appointed, they are to be appointed against those specific vacancies. Only after filling up the said vacancies, if vacancies arise, subsequent notification is to be issued for recruitment to the said subsequent vacancies, it is only on the assumption that the earlier vacancies are filled up by the recruitment process which is undertaken, the subsequent vacancies could be taken into consideration, for issue of notification, to recruit persons to the said subsequent posts. Persons who are recruited as against specific vacancies which arose subsequent to the earlier specific vacancies cannot be appointed against earlier specific vacancies for which recruitment process has commenced, but appointments are not yet made, on the ground that those vacancies still remain unfilled or vacant. It is because, persons who were appointed to the subsequent vacancies cannot be appointed to the earlier specific vacancies as they are not recruited against those vacancies/posts. They did not file their application to the said posts. They were not selected in the recruitment process to fill up those vacant posts. Therefore, persons appointed against those subsequent vacant posts would necessarily have to be junior to the persons who are recruited to the earlier specific vacancies. Merely because the recruitment process for the subsequent vacancies was completed earlier in point of time and those selected were appointed at earlier point of time. They would not become seniors vis-a-vis persons to be appointed as against earlier specific vacancies.`