(Prayer: This Writ Petition is filed Under Article 226 of the Constitution of India praying to quash the impugned final gradation list in the Cadre Assistant Engineers dated 13.08.2019 prepared and published by the R-1 (Annx-K) as far as the ranking assigned to the petitioners and R-2 to 5 is concerned and etc.
This Writ Petition is filed Under Articles 226 & 227 of the Constitution of India praying to quash the impugned final seniority list dated 26.12.2013 in so far as it relates to the ranking assigned to the R-4 to 11 Vide Annexure-K to writ petition under the facts and circumstances of the case and etc.
This Writ Petition is filed Under Article 226 of the Constitution of India praying to quash the impugned seniority list dated 23.12.2017 (Annexure-H) issued by Respondent No.1 in so far as it relates to the ranking assigned to the petitioner and Respondent No.2 are concerned and consequently direct the Respondent No.1 to re-assign the ranking to the petitioner in the impugned seniority list in the cadre of Assistant Engineer dated 23.12.2017 by placing him over and above the Respondent No.2 and etc.)
Through Video Conference:
1. The petitioners in W.P.No.25266/2016 are direct recruits for the post of Assistant Engineers (Civil). The recruitment notification was issued on 22.02.2008 and final select list for Assistant Engineers (Computer Science) was published vide notification dated 08.04.2010. The final select list of Assistant Engineers (Mechanical) was published vide notification dated 05.05.2010. The final select list of Assistant Engineers (Civil) was published vide notification dated 12.05.2010, while the final select list of Assistant Engineers (Electrical) was published vide notification dated 21.06.2016. Thereafter, a consolidated list adding 30% from the marginal list in all the three categories - Assistant Engineers (Civil, Electrical and Computer Science) was published on 31.01.2011, vide three separate notifications.
2. However, since some of the selected candidates did not report for duty despite issuance of appointment orders, the selection of such candidates was cancelled by a notification dated 01.08.2011 and thereafter the respondent Board published an additional final select list in all the three categories on 16.09.2011 and 22.09.2011 enlisting candidates finally selected from the marginal list. Appointment orders were issued and the contesting parties have been working from then on. Thereafter, a provisional seniority list of graduate Assistant Engineers and non-graduate Assistant Engineers from 01.04.2012 was published vide notification dated 13.11.2013. Since the petitioners in W.P.No.25266/2016 had no grievance with respect to their ranking assigned in the provisional list dated 13.11.2013, they did not file any objections. The final seniority list of Assistant Engineers (graduate) was published on 26.12.2013.
3. The grievance of the petitioners in W.P.No.25266/2016 is that in the final seniority list, the respondents No.4 to 11 were placed above the petitioners, contrary to the provisional seniority list. The petitioners gave a representation dated 06.01.2014 for correcting the final seniority list and restore their rankings as per the provisional seniority list. It is contended that the respondent Board while publishing seniority list of Junior Engineers vide notification dated 05.03.2015 had rightly placed the candidates selected from the marginal list below the candidates selected in the provisional select list, but in the case of Assistant Engineers, the respondent Board has committed a mistake in placing respondents who were selected from the marginal list, above the petitioners. On the other hand, the Board issued endorsements at Annexure-N series stating that the respondents had sought for extension of time to join duty and therefore in terms of Clause 16(d) of the Bangalore Water Supply and Sewerage Board Cadre, Recruitments and Promotion Regulation, 1981, (for short 'Regulation'), the benefit of extension of time to join duty was given to the respondents, however, since it was found that their ranking was not in accordance with the percentage of marks obtained, the respondents have been placed in the seniority list, as per their marks obtained.
4. Two issues arise for consideration-
(i) Whether the candidates shown in the marginal list could be permitted to claim ranking in the seniority list in terms of the percentage of marks obtained during recruitment process or whether they are required to be placed below the candidates in the final select list?
(ii) Whether clause 16(d) of the Regulation provides for extension of joining time and whether such candidates who assume charge after the period specified in the appointment order lose the seniority originally assigned?
5. In the statement of objections filed by the respondent Board it is stated that this Court, in the case of Smt. V.Shilpa and others Vs. The Chairman, BWSSB & others in W.P.Nos.19518- 19533/2014, by order dated 04.09.2014 considered the final gradation list of Assistant Engineers (graduates) notified on 26.12.2013. It is stated that in view of certain directions given in W.P.No.22937/2010 concerning the preparation of provisional select list and final select list to the post of Junior Engineers, this Court had directed the respondent Board to prepare a fresh select list as contemplated under clause 8 (xiv)(a) to include the name of the candidates falling within the 30% margin of the number of existing vacancies to be filled up, a fresh select list with regard to the Assistant Engineers also was prepared and notified. It is stated that in the light of the directions given in W.P.No.22937/2010, in the consolidated final select list dated 16.09.2011 and 22.09.2011, the respondents who were in the marginal list were placed above the petitioners, although that was a case pertaining to Junior Engineers, but had considered clause 8(xiv)(a) of the Regulations. However, having considered the final gradation list dated 26.12.2013 in the light of clause 8(xiv)(a) and clause 16(a) of the Regulations, this Court, in W.P.No.19518-19533/2014 upheld the final seniority list of Assistant Engineers. It is therefore submitted at the hands of the respondent Board that when the final seniority list dated 26.12.2013 has been upheld, a challenge cannot be raised once again to the very same list.
6. In W.P.No.4473/2018, the sole petitioner who was selected to the post of Assistant Engineer (Electrical) pursuant to recruitment notification dated 23.02.2015, has raised a challenge to the final seniority list dated 23.12.2017. Whereas, in W.P.No.51898/2019, a challenge is raised to the final seniority list dated 13.08.2019. The petitioners and respondents in W.P.No.4473/2018 and 51898/2019 are direct recruits to the post of Assistant Engineers consequent to the recruitment notification dated 23.02.2015.
7. The petitioner in W.P.No.4473/2018, Sri Prathap Reddy C, was placed at Sl.No.1 in the provisional select list to the post of Assistant Engineer (Electrical), having secured 96.33%. Even in the final select list dated 21.01.2016, the petitioner is placed at Sl.No.1. An appointment order dated 29.07.2016 was issued to the petitioner and in terms of the appointment order the petitioner was required to report for duty within 15 days. There is no dispute that the petitioner had reported for duty within the stipulated time. A provisional seniority list dated 01.08.2017, withdrawing or rectifying the seniority list dated 31.07.2017, in terms of the directions given by the Hon'ble Supreme Court in the case of Union of India and others /vs./ B.K.Pavithra and others was notified. The petitioner was placed at Sl. No.305 and he had no grievance. However, in the final seniority list dated 23.12.2017, the petitioner is listed at Sl.No.403 and respondent No.2 is placed at Sl.No.329.
8. In W.P.No.4473/2018, the respondent Board has filed statement of objections and written arguments contending that immediately after the final select list was announced, the Board addressed a letter dated 25.02.2016 to the District Collector of Karnool requesting for personal verification report of the petitioner. The report was received on 18.07.2016 and the delay was occasioned due to the incorrect address given by the petitioner. Nevertheless, on receipt of the verification report, appointment order dated 29.07.2016 was issued to the petitioner and the petitioner personally appeared on 12.08.2016 along with the medical certificate and original documents. It is contended that the previous employer of the petitioner relieved the petitioner only on 07.09.2016 and thereafter posting order was issued to the petitioner on 06.09.2016. The petitioner reported for duty on 12.09.2016. On the other hand, respondent No.2 reported for duty on 06.06.2016. It is therefore contended that since the respondent No.2 reported for duty much earlier to the petitioner, on the basis of clause 16(d) of the Regulations, the petitioner has been placed below the respondent No.2. Nevertheless, in the statement of objections filed in W.P.No.51898/2019 where Sri Prathap Reddy is petitioner No.4, it is categorically admitted that his name was found at Sl.No.1 in the list of selected candidates to the post of Assistant Engineer (Electrical), he has reported for duty within the time stipulated in the appointment order and therefore no fault could be found in his claim to be placed above respondent No.2 in W.P.No.4473/2018. To that extent, the respondent Board has conceded the case of Sri Prathap Reddy.
9. The petitioners in W.P.No.51898/2019 are admittedly candidates who were in the marginal list of 30% after the final select list in terms of clause 8(xiv)(b) of the Regulations was prepared and published. This is evident from the provisional and final select list published vide notifications dated 18.11.2015 and 31.12.2015. Except the name of Sri Prathap Reddy (petitioner No.4), the names of the other petitioners are found in the 30% marginal list. When some of the selected candidates did not report for duty or when their candidature was rejected owing to unsatisfactory verification report or for production of invalid documents etc., the marginal list was operated and an additional select list in the three categories viz., AE(Electrical), AE(Civil) and AE(Mechanical) was published on 27.03.2017, 20.01.2017 and 20.01.2017 respectively. Therefore, the very same question as found in W.P.No.25266/2016 as to whether, in the seniority list the candidates who were subsequently selected from the marginal list could be placed above the candidates from the original final select list, based on the percentage of marks obtained in the recruitment process arises for decision making.
10. The other contention raised by the learned counsel Sri M.S.Bhagwat, on behalf of the petitioners in W.P.No.51898/2019 is that the combined gradation list of Assistant Engineers (graduates) and Assistant Engineers (non-graduates) is to be published for the purpose of considering 2/3rd quota meant for Assistant Engineers (BE graduates) and 1/3rd quota by promotion of Diploma holders and to consider the petitioners claim for promotion as Assistant Executive Engineers. In this regard, learned counsel Sri M.S.Bhagwat draws the attention of this Court to Schedule-II of the Regulations which provides that the post of Assistant Executive Engineer shall be filled by promotion. It provides that 75% shall be filled up by promotion of graduate Assistant Engineers on the basis of seniority-cum-merit and 25% by promotion of non-graduate Assistant Engineers on the basis of seniority-cum-merit. It is therefore contended that since there are two sources from which the posts of AEEs are required to be filled up by promotion, a combined seniority list of direct recruits and promotees is required to be prepared and published. In this regard, the learned counsel relied upon the decision in the case of V.B. Badami and others /vs./ State of Mysore reported in (1976) 2 SCC 901 and reiterated in Gonal Bhimappa /vs./ State of Karnataka reported in AIR 1987 SC 2359.
11. On this aspect, the learned counsels for the respondent Board and the private respondents have submitted that the Board has taken a decision to do away with the publishing of combined seniority list of AE (graduates and non-graduates) as the promotion is on the basis of seniority-cum-merit. It is also submitted by the learned counsel for the private respondents that the petitioners who were appointed subsequent to the respondents, by operating the marginal list are yet to acquire the minimum experience of four years mandatorily required to be eligible for promotion. Even otherwise, the petitioners and private respondents seek promotion from the same source. Therefore, the prayer is misconceived and vexatious. The learned counsel places reliance on K.K.Dixit and Others Vs. Rajasthan Housing Board and Another reported in (2015) 1 SCC 474 to submit that the Board has rightly relied upon the said decision and other decisions such as Challa Jaya Bhaskar (2010) 13 SCC 348, Chandravarthi P.K. (2004) 3 SCC 734, Vijay Singh Deora (1997) 3 SCC 118 and Shailendra Dania (2007) 5 SCC 535.
12. Heard the learned Counsels and perused the petition papers.
13. In order to decide the first issue as to whether a candidate subsequently selected from the marginal list could be placed above the candidates from the original final select list, based on the percentage of marks obtained in the recruitment process?, clause 8(xiv) of the Regulation, 1981, has to be looked into. Clause 8(xiv) reads as follows:
8. Procedure for selection and recruitment:
(xiv) Preparation of approved list of candidate found suitable:-
(a) The selection/recruitment committee shall after interviewing the candidates select those who are found suitable for appointment and shall prepare a first consolidated list, irrespective of class to which they belong, arranging them in the order of merit, keeping in view the number of existing vacancies to be filled with a margin of 30%.
(b) The Committee will then prepare from out of the first list separate lists containing the names of candidates found suitable and equal to the number of posts to be filled by various categories of reserved candidates viz., S.C., S.T., etc. by arranging them in the order of merit.
(c) The lists finally settled by confirming to clause (a) and (b) above, shall constitute the lists of candidates finally selected for appointment to any particular category of the Board service for which the selection is made.
NOTE:- If two or more candidates have secured equal percentage of total marks in the examination/test, and interview, the order of merit in respect of such candidates shall be fixed on the basis of their age, person/s older in age being placed higher in the order of merit.
(d) The list so prepared shall be valid till all the vacancies notified, including those that may arise subsequent to such notification, upon the date of issue of appointment orders, are filled up or six months whichever is earlier.
14. A plain reading of the said provision makes it clear that a first consolidated list, irrespective of class to which the candidates belong, shall be prepared, arranging the candidates in the order of merit, which would also include 30% in excess of the number of posts sought to be filled up, keeping in view the number of existing vacancies, in terms of clause (xiv)(a). The Committee shall thereafter prepare from out of the first consolidated list, separate lists containing the names of candidates found suitable and equal to the number of posts to be filled, having regard to the categories of reserved candidates, by arranging them in the order of merit, in terms of clause (xiv) (b). Sub-clause (c) of Clause 8 (xiv) makes it clear that the lists prepared conforming to clauses (a) and (b) shall constitute the lists of candidates finally selected for appointment.
15. The operation of the marginal list is permitted under sub- clause (d) of clause 8 (xiv) to fill up such of the vacancies which may arise on account of rejection of the candidature of a selected candidate or for any of the reasons stipulated in clause 9 of the Regulations, such as, medical fitness, unsatisfactory credentials and testimonials, unsatisfactory verification of age etc. or non- acceptance of the appointment order by the selected candidate. It is therefore clear that the final select list shall be in terms of sub- clause (c) of Clause 8(xiv). The subsequent selection by operating the marginal list in terms of sub-clause (d) of Clause 8(xiv) cannot be equated to candidates selected in terms of sub-clause (c) of Clause 8(xiv). Candidates subsequently selected in terms of sub- clause (d) shall form a different category, enlisted in an additional final select list. Such candidates are required to be listed below all the candidates earlier selected under the final select list. Just because a candidate in the additional final select list picked up from the marginal list had secured higher percentage of marks in the selection process, he or she cannot be placed above originally selected candidates, even if the candidate in the marginal list had scored higher percentage of marks. We should bear in mind that while preparing the final select list in terms of sub-clause (c), regard shall be had to the number of vacancies in each category, including the reserved category and accordingly candidates who have secured the highest marks in each category are selected from out of the list prepared in terms of sub-clause (b) of Clause 8(xiv). When once the final select list is prepared and freezed, appointment orders are issued. Accordingly, for appointments in terms of the recruitment notification dated 23.02.2015, the final select lists in terms of sub-clause (c) of Clause 8(xiv) was issued in the three categories - AE (Electrical), AE (Civil) and AE (Mechanical), on 31.12.2015 and 21.01.2016. Appointment orders were issued to such of the selected candidates on 06.06.2016 or thereabout.
16. Petitioners in W.P.No.51898/2019 who were selected from the marginal list, were listed under additional final select list under notifications dated 20.01.2017 and 27.03.2017. Appointment orders were issued on 23.03.2017, 31.03.2017, 12.05.2017 and 29.07.2016. They have rightly been placed below the originally selected candidates, in terms of the provisions of the Regulations. The contention of the petitioners that they have secured more marks than some of the private respondents and some of the candidates selected in the final select list and therefore, they should be placed above such candidates/respondents in the gradation list, is misconceived. It may be true that some of the petitioners who had competed for the general category posts or posts reserved for backward classes may have secured higher percentage of marks in the examination, but when once the final select list is prepared in terms of sub-clause (c) of clause 8(xiv), the petitioners lost out to candidates who had secured more marks in their respective category. Thereafter, the Board having issued appointment orders to candidates finally selected, the petitioners were kept out of the fray. It is only because some of the selected candidates did not report for duty or were otherwise disqualified that the petitioners got an opportunity in the place of such selected candidates, in the particular category of post. Such candidates who were otherwise out of the fray, got a second lease of life and were selected under an additional final select list. Such candidates cannot claim that they should be placed above a candidate originally selected in the final select list.
17. Clause 16 of the Regulations which provides the mode and method of preparing the seniority list also takes care of the contentious issue. Sub-clause (a) of Clause 16 provides that the seniority of persons appointed by direct recruitment shall be in the order of merit in which the candidates are arranged in the approved list of candidates at the time of their first appointment. This clearly shows that the candidates selected under the additional final select list cannot claim to be listed along with the original final select list candidates. As noticed earlier, the private respondents were enlisted under the final select lists dated 31.12.2015 and 21.01.2016, whereas the private respondents were enlisted under additional final select lists dated 20.01.2017 and 27.03.2017. Therefore, even in terms of sub-clause (a) of Clause 16, the petitioners who were selected under the additional list subsequently, cannot contend that they have to be placed above the private respondents since they had obtained more percentage of marks in the recruitment process. Issue No.1 is answered accordingly.
18. The action of the respondent-Board in placing the petitioners in W.P.No.51898/2019 in the seniority list, below the private respondents, is in accordance with the provisions of the Regulations and no fault could be found in this regard.
19. The other contention of the learned Counsel for the petitioners in W.P.No.51898/2019 that a common seniority list of Assistant Engineers - Graduates and Non-Graduates was required to be prepared, seems to be a vexatious contention, for the following reasons:
i) No material is placed on record to show how the non- preparation of combined seniority list has affected the rights of the petitioners or in what way they are aggrieved.
ii) The non-graduate Assistant Engineers are not made parties to these proceedings.
iii) If the respondent-Board has taken a decision while making reference to the judgment of the Apex Court in the case of K.K.Dixit (supra), to do away with the system of publishing integrated/combined gradation list of Graduate and Non-Graduate Assistant Engineers, the Non-Graduate Assistant Engineers who are left with 25% of the promotional avenue to the post of AEE may be the affected party and not the petitioners who are Graduate Engineers.
iv) Information has been furnished by the respondent-Board that out of 155 sanctioned posts of Graduate AEs, at present 78 posts are occupied, while 77 posts remain vacant. Similarly, out of 78 sanctioned posts of Non-Graduate AEs, at present 42 are occupied and 34 posts remain vacant. It was therefore contended that the allegation of the petitioners that Non- Graduate AEs have occupied the posts reserved for Graduate AEs, has no basis.
20. The other issue regarding clause 16(d) of the Regulations providing for extension of joining time and whether such candidates who assume charge after the period specified in the appointment order lose the seniority originally assigned, is again a non issue in these proceedings.
None of the petitioners and respondents are said to have sought for extension of time to report for duty and nor has the respondent Board denied seniority on such grounds to any of the parties to these proceedings. Insofar as the petitioner in W.P.No.4473/2018 is concerned, the
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Board has admitted its mistake in denying seniority to the petitioner. 21. Insofar as the petitioners in W.P.No.25266/2016 are concerned, though there is merit in their contention that the private respondents therein who were selected from the marginal list have been placed above them in the seniority list, the difficulty is that the final seniority list with respect to the Assistant Engineers (Graduates) which was published on 26.12.2013 has been upheld by this Court. Some of the aggrieved employees who stand on the same footing as the petitioners, had filed W.P.Nos.19518- 19533/2014 in the case of V.Shilpa and Others Vs. The Chairman, BWSSB, challenging the final gradation list dated 26.12.2013. By order dated 04.09.2014 W.P.Nos.19518-19533/2014 was dismissed, while upholding the final seniority list dated 26.12.2013. Unfortunately, clause 8(xiv) (b) to (d) was not examined in the said case. It is even more unfortunate that the decision of this Court in W.P.Nos.19518-19533/2014 was not taken up in appeal. Though learned Counsel Sri S.B.Mukkannappa, appearing for the petitioners in W.P.No.25266/2016 submits while relying upon the decisions of the Apex Court in the case of Amalgamated Coal Fields Limited and Another Vs. Janapada Sabha Chhindwara and Others, 1963 Supp. (1) SCR 172 and Harichand and Others Vs. Faridabad Complex Administration and Others (2005) 4 SCC 592 that the principles of res judicata is not applicable to a writ petition filed under Article 226 of the Constitution of India, stricto senso, this Court is of the considered opinion that a decision rendered by a co-ordinate Bench of this Court cannot be upset by another Bench, in keeping with the principles of judicial propriety. It is left to the petitioners to work out their remedy in accordance with established procedures. The respondent-Board, being bound by the earlier decision in W.P.Nos.19518-19533/2014 has retained the gradation list for the block period 01.04.2011 to 01.04.2013 in the subsequent seniority list dated 13.08.2019. 22. For the reasons above stated, this Court proceeds to pass the following: ORDER 1. W.P.No.4473/2018 is allowed. The ranking of the petitioner shall be reassigned in terms of the ranking of the petitioner as found in the final select list dated 21.01.2016. 2. W.P.No.25266/2016 and W.P.No.51898/2019 stand dismissed. No order as to costs. In view of the disposal of the writ petitions, pending Interlocutory applications do not survive for consideration and accordingly the same stand disposed of.