Backlog Of Unfilled Women Seats In Reserved Category May Be Filled By Male Candidates Of Same Category: High Court Directs Bangalore University

A single judge bench of Justice S Sunil Dutt Yadav allowed the petition filed by Dyavappa, and directed the Bangalore University to take note of the Government Order dated 22-11-2002 and proceed forthwith to make an order of appointment. The said process is to be completed within a period of three months.

The University had invited applications for recruitment as per the Notification dated 21.03.2018. Insofar as recruitment to the Open category is concerned, recruitment was completed. However, the recruitment for the category of ST (W) could not be concluded as no candidates had applied for the post earmarked for the particular category.

The petitioner came to know regarding non-submission of application with respect to the post of Assistant Professor (Women) under the category of ST by virtue of the communication of the Bangalore University and soon thereafter he made a representation for appointment to the said post.

Following which he approached the court seeking directions to the University to consider the representation made by him and direct the respondents to issue an order of appointment to the post of Assistant Professor, Department of Architecture in Bangalore University as regards the vacant post under the category ST (Women).

Senior Advocate A.G.Shivanna appearing for the petitioner submitted that subsequent notification by the University does not make any provision for filling of this post as notified on 14.06.2021. In terms of Section 53 (8) of the Karnataka State Universities Act, the Board of appointment shall follow the orders issued by the State Government from time to time and the GO must be construed to be an order issued by the State Government in terms of Section 53 (8) of the Karnataka State Universities Act.

Further, he argued that the vertical reservation is the category of ST while the horizontal reservation is that of woman and taking note of the applicable Government Order, in the event suitable woman candidate as regards vertical reservation of ST is not found, in terms of the Government Order, if the horizontal reservation is shifted to the men, there would be no prejudice that would be caused to the vertical reservation.

The government advocate said the Order dated 22.11.2002, is required to be adhered to by the appointing authority 'in all the cadres'. Further, sub-rule (1B) of Rule 9 of the Karnataka Civil Service (General Recruitment) Rules, 1977, points out that vacancies set apart to the extent of 33% shall be filled up from amongst the category of General Merit, Scheduled Castes, Scheduled Tribes and each of the categories among the other backward classes by women. The said Recruitment Rule has a proviso which states that if sufficient number of eligible women candidates are not available, to the extent of thirty-three percent, the unfilled vacancies shall be filled by men candidates belonging to the same category.

Advocate Rajendrakumar Sungay appearing for the University contended that the Government Order is not applicable insofar as the present recruitment notification is in terms of the Karnataka State Civil Services (Unfilled vacancies reserved for the persons belonging to the Scheduled castes and the Scheduled tribes) (Special Recruitment) Rules, 2001 and also the Karnataka State Civil Services (Unfilled vacancies reserved for the persons belonging to the Scheduled castes and the Scheduled Tribes) (Special Recruitment) (First Amendment) Rules 2002.

Findings

The bench said,

"As per Recruitment Notification the post of Assistant Professor of Department of Architecture is to be filled up under the main Category of vertical reservation of Scheduled Tribe (ST) and horizontal reservation as regards one post with respect to women and the other post is reserved 'Open' for the same category. It is accordingly to be construed that the vertical reservation is of ST while horizontal reservation is as regards category of women."

It added,

"The Government Order as rightly contended by the learned Senior Counsel appearing for the petitioner is to be treated to be a direction of the State Government under Section 53 (8) of the Karnataka State Universities Act, 2000."

Rejecting the contention of the University that the Government Order is not applicable insofar as recruitment under the Special Recruitment Rules is concerned, the bench said,

"The Government Order does not make any such distinction and would be applicable whether it is recruitment under the General Recruitment Rules or Recruitment as regards backlog vacancies under the Special Recruitment Rules. The direction under the notification at Annexure-'H' being a direction under Section 53 (8) requires to be accepted by the University."

Further the court said recruitment to other posts having been completed and as contended by the petitioner a subsequent notification for recruitment also having been made, there is no notification for recruitment as regards category of ST (Women).

Following which it said ,

"If that being so, non-filling of the post for ST under the vertical reservation of ST by other eligible women or in the absence by men would prejudice the rights of those under ST Category. Wherever the horizontal reservation of eligible candidates are not found and as provided under the recruitment Rule 9 (b) referred to above as well as Government Order at Annexure-'H', it is the duty of the authorities concerned to then have a vertical reservation filled in terms of the Government Order by ST (Women)."

Case Title: Dyavappa v Bangalore University & Others

Case No: Writ Petition No 6426/2021

Citation: 2022 LiveLaw (Kar) 294

Date of Order: July 20, 2022

Appearance: Senior Advocate A G Shivanna for Advocate Rahamathulla Kothwal for petitioner; Advocate T P Rajendra Kumar Sungay for R1-R2; AGA M C Nagashree for R3, R5

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