H.G.YOGANAND Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) As a common question of law is involved in all these writ petitions, they are taken up for consideration together and disposed of by this common order. The 1st respondent-State of Karnataka issued a notification dated 3-11-1997 to fill up 33 posts of Commercial Tax Officers (CTOs) and 25 posts of Assistant Commissioner of Commercial Taxes (ACCTs). Accordingly, the Karnataka Public Service Commission issued a notification on 9-3-1998 calling applications from eligible candidates. The KPSC after completing the selection process published a provisional selection list of candidates on 28-9-2001. After publication of the said list, some of the candidates, who had taken the examination filed application before the Tribunal alleging certain irregularities in the valuation of answer scripts and prayed for a direction to the KPSC to revalue the answer scripts. The said application was allowed. The same was challenged before this Court. This Court also directed random review of answer scripts. The same was challenged before the Apex Court. The Apex Court upheld the order of the High Court. It is after all these process the final selected list was published on 28-2-2006 and the same was forwarded to the Government for issue of appointment orders.

(2.) During the pendency of this litigation, the 3rd respondent-Commissioner of Commercial Taxes filled up 252 posts of CTOs and 117 posts of ACCTs available under the quota of direct recruits by promotion from the cadre of Commercial Tax Inspectors and Commercial Tax Officers respectively, by placing them in charge under Rule 32 of the Karnataka Civil Services Rules, 1958. Subsequently, on. A representation made by these persons, the 2nd respondent-Principal Secretary, Department of Personnel and Administrative Reforms issued a notification on 6-5-2002, to freeze 252 and 117 direct recruitment vacancies of CTOs and ACCTs in favour of the promotee CTOs and ACCTs, without noticing that by notification dated 9-3-1998, the selection process has already been initiated for 33 posts of direct recruitment vacancies of Commercial Tax Officers and 25 posts of ACCTs. After issue of the appointment order on 28-2-2006 in pursuance of notification dated 9-3-1998, the 1st respondent noticed that there were no direct recruitment quota at all. Therefore, these direct recruitees were posted as 'trainee reserve' by creating temporary posts, contrary to Recruitment Rules. On a representation by these direct recruitees, realizing the illegality committed by issuing notification dated 6-5-2002 freezing 252 and 117 posts of direct recruitment vacancies in the cadre of CTOs and ACCTs, a draft notification dated 25-8-2009 was issued proposing to defreeze, and invited objections. Objections/suggestions were filed by the petitioners. When no action was taken inspite of the lapse of sufficient time, the direct recruitees approached the Karnataka Administrative Tribunal seeking a writ of mandamus to determine their ranking in the cadre of CTOs and ACCTs and to finalise the seniority list.

(3.) The respondents filed statement of objections contending that they would consider and publish the seniority list pertaining to the cadre of Assistant Commissioner of Commercial Taxes as on 31-12-2009 and that after duly considering the same, would publish a final seniority list within a period of three months. They contended that these direct recruitees having entered into the cadre only on 26-4-2006, it makes no difference regarding freezing and defreezing of the vacancies prior to their appointment and therefore, direct recruitees cannot claim appointment from the date of vacancies in the concerned quota before their selection. They are entitled to seniority only from the date of entry into service and not from any anterior date. The Tribunal, on consideration of the rival contentions held that when the respondents have stated in their reply statement that they would publish a provisional seniority list pertaining to the cadre of CTOs as on 31-12-2009 inviting objections from the concerned and after duly considering the same, the final seniority list of CTOs would be published within a period of three months. Thereafter review of promotions will be undertaken. It would not be proper to go into the merits or demerits of the contentions of either parties in these applications. Further it was observed that such a direction cannot be issued only in respect of one or two cadres in the Department. Thereafter, proceeded to issue a direction to the respondent to finalise the seniority list pertaining to all the cadres in the Department of Commercial Taxes within a reasonable time. The Tribunal referred to the various judgments of the Apex Court in order to consider the validity of freezing or defreezing policy but declined to express any opinion. But it set out its judgment rendered in Application No. 5230 of 2007 and connected cases in case of R. Thimmareddy and Others v. State and Others, decided on 7-1-2010 and also extracted the judgments of the Apex Court and held that reiterating the aforesaid views in this case shall not be construed as expression of their opinion on the aspect of defreezing and direct recruitment vacancies in this case. Further the Tribunal held the applicants had no locus standi to question the freezing of direct recruitment vacancies. They observed in the above referred two cases they have already held that the applicants had no locus standi to question the freezing of direct recruitment vacancies as the applicants therein had entered service subsequent to the freezing of direct recruitment vacancies. It further observed that the respondents in this case shall bear in mind the aforesaid views of the Tribunal while finalising the notification dated 28-5-2009 relating to freezing of certain direct recruitment vacancies in the cadre of Assistant Commissioner of Tax, keeping in view the rival contentions of promotees and direct recruitees. Thus, the Tribunal did not pronounce upon the contentious issue and disposed of the matter in the aforesaid manner. It is against the said order these writ petitions are filed.