K.B. Rachana vs Vemekar Naina Vilas and Others

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 28.07.2011 passed by the Karnataka Administrative Tribunal, Bangalore (''KAT'' for short) in Application No. 6054/2009.

The petitioner is the holder of Post Graduate Degree in M.D.S. Prothodontics having acquired the same from the Rajiv Gandhi University of Health Sciences. When a notification dated 23.08.2007 was issued by respondent No. 4 herein calling upon eligible candidates for Walk-in-interview which included Assistant Professor Posts for Prosthetic Dentistry, the petitioner had also appeared for the said Walk-in-interview. Respondent No. 1 herein also had appeared for the said Walk-in-interview. Respondent No. 4 thereafter published the selection list of candidates as per Annexure-''C''. The petitioner having secured 60.67% marks was placed at Sl. No. 2 while respondent No. 1 who had secured 60.96% marks was placed at Sl. No. 1.

Respondent No. 1 was in Government service and in that view, having executed a bond at an earlier instance while undertaking Post Graduation course was to continue to serve the Government. In addition, the provisions contained in Rule 11 of the Karnataka Civil Services (General Recruitment) Rules, 1977 (''Rules, 1977'' for short) also provide that prior permission is to be obtained from the Government before an application is made to secure employment in any other Institution. Respondent No. 5 being a Government of Karnataka undertaking fell in the category where respondent No. 1 ought to have obtained permission. Respondent No. 1 accordingly sought for such permission. Respondents No. 2 and 3 through the order dated 05.12.2009 had refused the permission. In that circumstance, respondent No. 1 had approached the KAT assailing the order dated 05.12.2009.

Along with respondent No. 1, one other doctor who was similarly placed had also filed an application. The KAT on considering the same has by its order dated 28.07.2011 allowed the application, set aside the order dated 05.12.2009 and has directed respondents No. 2 and 3 to pass appropriate orders to grant consequential benefits to the applicants therein.

Respondents No. 2 and 3 against whom such direction was issued have not thought it fit to assail the order dated 28.07.2011, but have permitted respondent No. 1 to join. Though that is the position, the petitioner herein who had participated in the Walk-in-interview and had been placed at Sl. No. 2 below respondent No. 1 herein is before this Court seeking to assail the order passed by the KAT.

Heard the learned counsel for the parties and perused the petition papers.

With regard to the position that Rule 11 of the Rules, 1977 contemplates permission to be obtained and in that regard, respondent No. 1 had made a request and that the same has been rejected by the order dated 05.12.2009, is the admitted position. In that light, what is necessary to be noticed is as to whether the KAT was justified in its conclusion and in that background whether the order of the KAT is required to be examined at the instance of the petitioner taking note of sequence of events that have followed?

At the outset, a perusal of the order passed by the KAT would indicate that a detailed consideration has been made by the KAT and has arrived at the conclusion that the order as passed and impugned at Annexure-A24 was not justified. To arrive at such conclusion, the KAT has also taken into consideration that respondent No. 1 herein had requested respondents No. 2 and 3 to grant permission to attend the Walk-in-interview and thereafter respondent No. 1 has attended the Walk-in-interview wherein she was successful and has been appointed as an Assistant Professor in Vijayanagar Institute of Medical Sciences. Prima facie having noticed that the KAT has taken into consideration these aspects and has answered the issue against respondents No. 2 and 3 and also taking note of the fact that respondents No. 2 and 3 have not assailed the said order before this Court, as noticed, the question for consideration at the outset is as to whether the order impugned requires interference at our hands at the instance of the petitioner herein?

The order impugned is dated 28.07.2011. The instant writ petition is filed on 21.09.2012 after more than one year from the date on which the KAT had decided the matter. Learned counsel for the petitioner has referred to the averments made in paragraph 13 of the writ petition to contend that the need for challenging the order had arisen only after the question of seniority had arisen for consideration since respondent No. 1 was placed as a senior and the said benefit was denied to the petitioner which would explain the delay. However, in our opinion, the said explanation as put forth by the petitioner seeking to explain the delay cannot be accepted by us. The reason being that the petitioner in fact was not claiming to be aggrieved for the first time when the writ petition had been filed before this Court. At an earlier instance itself, the petitioner had filed an application seeking to implead herself to the proceedings before the KAT in Application No. 6054/2009 filed by respondent No. 1 herein and another. The said application for impleadment was rejected by KAT by the order dated 04.02.2011. This in itself would indicate that the reason as assigned in paragraph 13 of the writ petition to explain the delay for approaching this Court at this juncture is not the real fact since the petitioner at the first instance itself had made an attempt to implead herself and had failed therein, but did not make any grievance thereafter and even after the order was passed by the KAT, she remained silent for more than one year. Respondents No. 2 and 3 have acted upon the order and respondent No. 1 had also joined the service and at this belated stage, the petitioner is assailing the same.

Learned counsel for the petitioner would no doubt contend that even if there is delay on the part of the petitioner, that in itself would not be sufficient to non-suit the petitioner since the Hon''ble Supreme Court in the case of State of Orissa and Another Vs. Mamata Mohanty, has held that it is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. Further the learned counsel has also relied on the decision of the Hon''ble Supreme Court in the case of Bhupendra Nath Hazarika and Another Vs. State of Assam and Others, to contend that the recruitment must be made in accordance with the Rules and if any appointment is made in breach of the Rules, the same would be illegal and the persons so appointed have to be put in a different class and they cannot claim seniority.

Even in that background, when the issue of the petitioner having allowed the position to take a different turn despite having knowledge of the order and when respondents No. 2 and 3 have accepted the order passed by the KAT, relieved respondent No. 1 and both respondent No. 1 as well as the petitioner have reported to duty in respondent No. 4 and have performed their duties, at this juncture, in any event, the order of the KAT cannot be interfered with by us at the instance of the petitioner. Further, as a passing reference, it is also brought to the notice of this Court that the case of the petitioner for seniority has been considered by respondent No. 4.

Be that as it may, for the reason that the petitioner had kept quiet despite the application for impleading being rejected and thereafter for more than one year after the KAT had passed the final order, when the Government which had passed the impugned order had suffered the order before the KAT had not assailed the same, at this juncture, it cannot be said that the order of appointment is bad at its inception so as to call for interference when a challenge is made by the petitioner herein where the only concern of the petitioner is to seek seniority despite obtaining lower percentage than respondent No. 1 in the interview.

Therefore, we see no reason to entertain this petition since at the first instance itself, the KAT was of the opinion that the impleading application filed by the petitioner is liable to be rejected and such rejection order has not been assailed by the petitioner.

For all the above said reasons, we see no reason to interfere with the order impugned herein. Accordingly, the petition stands disposed of.