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WP No. 100972 of 2022

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 1ST DAY OF FEBRUARY, 2023

BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 100972 OF 2022 (S-RES)

BETWEEN:

PRAVEEN S PATIL
AGE 30 YEARS, OCC. NIL,
R/O. SIDDESHWAR NAGAR,
SHIRGUPPI, TQ. KAGWAD,
DIST. BELAGAVI.
Digitally signed by
CHANDRASHEKAR …PETITIONER
LAXMAN
KATTIMANI
Location: HIGH (BY SMT. ARCHANA A. MAGADUM, ADVOCATE &
COURT OF
KARNATAKA SRI ARVIND A. MAGADUM, ADVOCATE)
DHARWAD

AND:

1. DIRECTOR (ADMIN. AND HR.)

CORPORATE OFFICE,
KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
KAVERI BHAVAN,
BENGALURU-560 009.

2. CHAIRMAN
HESCOM COMPANY LEVEL
RECRUITMENT COMMITTEE AND
DIRECTOR (TECHNICAL)
HESCOM, HUBBALLI-580025.

3. PUBLIC INFORMATION OFFICER AND ACCOUNTANT

HUBBALLI ELECTRICITY SUPPLY COMPANY LIMITED
OLD P.B. ROAD, NAVANAGAR,
HUBBALLI-580025.
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WP No. 100972 of 2022

…RESPONDENTS
(BY SRI P.V. GUNJAL, ADVOCATE FOR R-1;
SRI B.S. KAMATE, ADVOCATE FOR R2 & R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OR ORDER IN THE NATURE OF WRIT OF CERTIORARI
QUASHING IMPUGNED NOTIFICATION DATED 01.02.2022 VIDE
ANNEXURE-V TO THE POST OF JUNIOR ENGINEER (ELEC.)
HESCOM UNDER GM RURAL CATEGORY PASSED BY
RESPONDENT NO.1 AND ETC.

THIS PETITION COMING ON FOR FURTHER DICTATION,

THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The 1st respondent - KPTCL had issued a notification

dated 8/9/2016 inviting applications from the eligible

candidates for appointment to the posts of Junior Engineer

(Elec.) (for short `JE (Elec) among other posts in the various

ESCOM's across the state, and in terms of the said notification,

the petitioner and other candidates submitted applications to

consider their case for appointment to the post of JE (Elec.) in

Respondent- HESCOM under the GM (Rural) category.

2. The respondent - HESCOM after considering the

eligibility of the respective candidates, published the final

selection list of JE (Elec.) of the five candidates for appointment

to the post of GM (Rural). Out of the total five candidates, two

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WP No. 100972 of 2022

candidates were not issued with the appointment orders, since

verification of their caste and character certificates were

pending before the Deputy Commissioner.

3. The petitioner sought information under the Right

To Information Act as to why the respondent - HESCOM has not

notified the waiting list to the post of JE (Elec.) among other

posts. The respondent - HESCOM issued the information under

Right to Information Act on 23.3.2020 stating that the vacant

posts which have not been filled up will be filled up by treating

the same as backlog posts.

4. The petitioner submitted a representation on

9.7.2020 calling upon the respondent - HESCOM to publish the

waiting list, since he was eligible. Since the representation was

not considered, the petitioner filed WP No.147608/2020. The

respondents No.2 and 3 filed a statement of objection

contending that the vacant posts will be filled up, by publishing

them as backlog vacancies in the next recruitment. This Court

by order dated 3/8/2021 directed the respondent-HESCOM to

complete the selection process in respect of the unfilled posts.

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WP No. 100972 of 2022

5. The HESCOM resolved to close the selection process

under the notification dated 8/19/2016, and in the meanwhile,

KPTCL issued a fresh notification dated 1/2/2022 to fill up the

post of JE (Elec) in the ESCOMs across the Karnataka among

other posts. Taking exception to the same, this petition is filed.

6. The learned counsel appearing for the petitioner

would make the following submissions:

i) Regulation VI of the Recruitment and Promotion

Regularizations, Employees (Probation) Regulations and
Employees (Seniority) Regulations published by the
KPTCL specifies that the recruiting authority shall prepare
the reserve list of names of the candidates not included in
the list prepared in which number of the candidates to be
included shall be 50% of the number of vacancies notified
and the said Rules specifies that the waiting list shall be
operated for a period of one year from the date of
approval of the main list. Hence, the recruiting authority
HESCOM ought to have published the waiting list
including the name of the petitioner.

ii) Two posts of JE (Elec) having fallen vacant, the

petitioner who is meritorious is entitled for appointment
to the post of JE (Elec) in the light of the notification
dated 8/9/2016.
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WP No. 100972 of 2022

iii) In respect of the other posts, the HESCOM has

published reserve lists and non-publication of the reserve
list insofar as it relates to JE (Elec) is arbitrary and
discriminatory.

iv) In support of his contentions, reliance is placed on

the decisions of Hon'ble Supreme Court in State of
Jammu and Kashmir v. Satpal (2013) 11 SCC 737 and
K Jayamohan v. State of Kerala and another (1997) 5
SCC 170.

7. On the other hand, learned counsel appearing for

the respondent-HESCOM would make the following

submissions:

i) Non-publication of the reserve list to the post of JE

(Elec.) was due to the fact that the verification of the
caste and character certificates were pending
consideration before the Deputy Commissioner.

ii) Pending the decision of the HESCOM to publish the

reserve list, the KPTCL had issued a fresh notification
dated 5/2/2019 inviting applications for filling up of five
vacant posts of JE (Elec.) in HESCOM under GM (Rural)
category. The publication of the reserve list is not
mandatory, since clause VI (C) (v) of the Recruitment
and Promotion Regularizations, Employees (Probation)
Regulations and Employees (Seniority) Regulations
specifies that the list so prepared under (c) (iii) and (iv)
above shall be notified in such manner as the Board may
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WP No. 100972 of 2022

direct and such list shall be sent to the appropriate

appointing authority.

iii) Merely because the other ESCOM's have published

the reserve list, the HESCOM is not under obligation to
publish the reserve list and the same is not mandatory.

iv) A right to seek appointment is not a fundamental

right.

8. I have examined the submissions made by the

learned counsel for the parties.

9. In pursuance of the notification dated 8/9/2016, the

final selection list was published by the HESCOM notifying the

selection of five candidates under GM (Rural) category to the

post of JE (Elec).

10. Clause VI (C) (i) to (v) of the Recruitment and

Promotion Regularizations, Employees (Probation) Regulations

and Employees (Seniority) Regulations published by the

KPTCL reads as under:

"C) i) The Recruiting Authority shall interview the

eligible candidates selected under (b) (i) & (ii)
above and award marks on the basis of their
performance in the interview. The object of such an
interview is to assess the suitability of the
candidates for appointment to the post applied for
by them and the calibre including intellectual and
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WP No. 100972 of 2022

social traits of personality. The ratio of marks

between academic qualification and interview shall
be 90:10. However, in the case of recruitment of
Driver Gr. II, the ratio of marks shall be 75: 25
(Refer Regn. No. 19)
ii) The Recruiting Authority shall publish on the
notice board of its office, on the day on which the
interview/oral test is held or on the day following
but before the commencement of the interview or
oral test on that day, a list of marks obtained by
each candidate in the said interview or oral test,
provided that, where the interview or oral test is
held in any place other than the place of its office
the said list shall be published in such other place.
iii) The Recruiting Authority shall on the basis of the
total marks secured in the qualifying examination as
determined under (b) (i) above and adding (b) (iii)
and of the marks secured at the interview/oral test
under (c) (i) above and taking into consideration the
orders in force relating to reservation of posts for
SC, ST and other backward classes, prepare a main
list of candidates eligible for appointment, in the
order of merit to the cadre or post. If the aggregate
percentage of total marks secured in the qualifying
examinations as determined under (b) (i) & (iii)
above and of the marks secured at the
interview/oral test under (c) (i) above are equal in
respect of two or more candidates, the order of
merit in respect of such candidates shall be fixed in
accordance with Note under (b) (i) above
The number and names of candidates, to be
included in such list, shall be equal to the number of
vacancies notified.
iv) The Recruiting Authority shall in accordance with
the provisions of (c) (iii) above also prepare a
reserve list of names of candidates not included in
the list prepared under (c) (iii) above in which the
number of candidates to be included shall be 50%
(fifty percent) of the number of vacancies notified,
and may be operated within a period of one year
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WP No. 100972 of 2022

from the date of approval of the main list or till the

next recruitment whichever is earlier
v) The lists so prepared under (c) (iii) and (iv)
above shall be notified in such manner as the Board
may direct and such list shall be sent to the
appropriate appointing authority."

11. Reading of Regulation VI (C) (ii) specifies that the

Recruiting Authority shall publish on the notice board on the

day on which the interview/oral test is held or on the day

following but before the commencement of the interview or oral

test on that day, a list of marks obtained by each candidate in

the said interview or oral test.

12. Regulation VI (C) (iii) specifies that the Recruiting

Authority shall on the basis of the total marks secured in the

qualifying examination and the marks secured in the interview

or oral test under (c) (i) above and taking into consideration

the orders in force relating to reservation of posts for SC, ST

and other backward classes, prepare a main list of candidates

eligible for appointment, in the order of merit to the cadre or

post.

13. Regulation VI (C) (iv) specifies that the Recruiting

Authority shall in accordance with the provisions of (c) (iii)

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WP No. 100972 of 2022

above also prepare a reserve list of names of candidates not

included in the list prepared under (c) (iii) above in which the

number of candidates to be included shall be 50% (fifty

percent) of the number of vacancies notified. Regulation VI (C)

(V) specifies that the lists so prepared under (c) (iii) and (iv)

above shall be notified in such manner as the Board may direct

and such list shall be sent to the appropriate appointing

authority.

14. In the instant case, HESCOM has not prepared the

reserve list as specified under Regulation VI (C) (iv) and sent

the same to the board to seek appropriate direction as specified

under Regulation VI (C)(v).

15. Meanwhile, the respondent - KPTCL published

employment notification dated 25.9.2019 inviting applications

to fill up the thirteen posts of JE (Elec.) in HESCOM under Rural

quota and four posts under the women quota and physically

challenged candidates towards backlog posts.

16. In the proceedings of the respondent - HESCOM

held on 4.2.2020, which is produced along with the synopsis, it

was resolved not to fill up three unfilled posts of JE (Elec.)

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WP No. 100972 of 2022

under the notification 8.9.2016 stating that the KPTCL had

already issued a fresh employment notification dated

25.2.2019. In the proceedings of the respondent - HESCOM

held on 28.2.2022, it was resolved to treat all the unfilled

posts due to non-receipt of sindhutwa certificates from the

concerned authority as backlog posts and conclude the

recruitment process by reserving two posts under SC category

and one post under 2A category. However, in the very same

proceedings, the 1st respondent has taken a decision to

fill the unfilled posts of Assistant Accountant, Assistants

and Junior Assistants from the waiting list.

17. The two posts of JE (Elec.) under the GM category

having been unfilled for non-receipt of sindhutwa certificates,

the respondent - HESCOM was obligated under Regulation

(vi)(c)(iv) to prepare a reserve list of the unfilled posts and

send the same to the respondent No.1 - KPTCL for approval.

The said requirement is mandatory, and there is no provision in

the recruitment Rules for treating the unfilled posts as backlog

posts so as to deprive the petitioner and similarly situated

persons of their rights to be considered for appointment.

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WP No. 100972 of 2022

18. The right to appointment is not a fundamental

right. The Hon'ble Supreme Court in the case of State of

Jammu and Kashmir -vs- Satpal (2013) 11 SCC 737) at para-

12 has held as follows:

"12. The date of filing of a representation by

the parties concerned and/or the date on which the
competent authority chooses to fill up the vacancy
in question, is of no consequence whatsoever. The
only relevant date is the date of arising of the
vacancy. It would be a different legal proposition,
if the appointment authority decides not to fill up
an available vacancy, despite the availability of
candidates on the waiting list. The offer made to
Trilok Nath on 22-4-2008 by itself leads to the
inference that the vacancy under reference arose
within the period of one year i.e. during the period
of validity of the waiting list postulated by the
rules. The offer of the vacancy to Trilok Nath
negates the proposition posed above i.e. the desire
of the employer not to fill up the vacancy. herein,
the appellants wished to fill up the vacancy under
reference. Moreover, this is not a case where the
respondent was seeking appointment against a
vacancy over and above the posts of which the
process of selection/recruitment was conducted.
Based on the aforesaid inference, we have no
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hesitation in concluding that the appellants ought

to have appointed the respondent Sat Pal against
the vacancy which was offered to Trilok Nath."

19. The Hon'ble Supreme Court in the case of K

Jayamohan -vs- State of Kerala and another (1997) 5 SCC 170

at para-5 has held as follows:

"5. It is a settled legal position that merely

because a candidate is selected and kept in the
waiting list, he does not acquire any absolute right
to appointment. It is open to the Government to
make the appointment or not. Even if there is any
vacancy, it is not incumbent upon the Government
to fill up the same. But the appointing authority
must give reasonable explanation for non-
appointment. Equally, the Public Service
Commission/recruitment agency shall prepare a
waiting list only to the extent of anticipated
vacancies. In view of the above settled legal
position, no error is found in the judgment of the
High Court warranting interference."

20. The Regulations mandate publication of reserve

lists, in the event, the posts remain unfilled due to various

factors. The respondent - HESCOM has taken a decision to fill

the unfilled posts other than JE (Elec.) posts which is arbitrary

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WP No. 100972 of 2022

and discriminatory. The two posts of JE (Elec.) having not

been filled up , the respondent- HESCOM by not publishing the

reserve list has deprived the legitimate right of the Petitioner

for consideration of his case for appointment , which is in

violation of Articles 14 & 16 of the Constitution of India.

Hence, the case of the petitioner as well as other similarly

situated persons for appointment requires to be considered by

publishing the waiting list. Accordingly, I pass the following:

ORDER

i) Writ petition is allowed.

ii) The impugned notification dated 1.2.2022 issued by

the 1st respondent at Annexure-V insofar as it relates to

selection to the two posts of JE (Elec.) (HESCOM) under

the GM Rural category is hereby quashed.

iii) The 2nd respondent is hereby directed to publish the

reserve list to the two unfilled posts of JE (Elec.) (GM-Rural

category) under the notification dated 8.9.2016 at

Annexure-A, and consider the case of the petitioner and

other similarly situated persons for selection and

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appointment to the posts of JE(Elec.). The said exercise

shall be concluded within a period of two months.

Sd/-
JUDGE

Vb/- / bkm