- 1 - NC: 2025:KHC:7763 WP No. 12652 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 12652 OF 2023 (S-RES) BETWEEN: VENKATESH S/O NASAPPA AGED ABOUT 48 YEARS R/O SAMATHA NAGARA, TAMAKA, KOLAR - 563 101 …PETITIONER (BY SRI. R. SHASHIDHARA, ADVOCATE) AND: 1. THE PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT, VIKAS SOUDHA, BANGALORE –560 001. 2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION V V TOWERS, AMBEDKAR ROAD, BANGALORE - 560 001. 3. THE SELECTION CUM DIRECT RECRUITMENT AUTHORITY CUM DEPUTY COMMISSIONER, KOLAR DISTRICT, KOLAR - 563 101. 4. THE CHIEF OFFICER, CITY MUNICIPAL CORPORATION KOLAR - 563 101. Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:7763 WP No. 12652 of 2023 5. G.VENKATESH S/O LATE GURAPPA AGE MAJOR, R/O BHOVI COLONY, NEAR GANGAMMA TEMPLE, AMBEDKAR NAGARA KOLAR - 563 101. …RESPONDENTS (BY SRI. B.J. ESWARAPPA, AGA FOR R1 TO R3; SRI. SRINIVASA.G, ADVOCATE FOR R4; SRI. N.S BHAT, ADVOCATE FOR R5) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TOQUASHING THE PROVISIONAL LIST ISSUED BY R3 NO. JINAKO/ NEMAKA/ (POURAKARMIKA)/CR/516/2022-23 DATED 22/02/2023 VIDE ANNEXURE-F AND FINAL LIST ISSUED BY THE R3 IN ORDER NO. JINAKO/POU.V.NE (KOLARA NAGARASABHE)/ CR/516/ 2022-23 DATED 28/03/2023 VIDE ANNEXURE-H TO THE WP IN SO FAR AS R5 IS CONCERNED. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT ORAL ORDER The petitioner, a Pourakarmika working on daily wage basis in 4th respondent-City Municipal Corporation is before this Court, questioning the correctness and legality of the selection and appointment of 5th respondent under provisional list bearing No.f£ÀPÉÆÃ/£ÉêÀÄPÁw (¥ËgÀPÁ«ÄðPÀ)/¹Dgï/516/2022-23 dated 22.02.2023 and final select - 3 - NC: 2025:KHC:7763 WP No. 12652 of 2023 list bearing No.f£ÀPÉÆÃ/¥Ë.«.£ÉÃ(PÉÆïÁgÀ £ÀUÀgÀ¸À¨sÉ)/¹Dgï/516/2022-23 dated 28.03.2023 vide Annexures-F and H respectively; the petitioner has also sought for a writ of mandamus directing respondent No.3 to consider the name of the petitioner under Scheduled Caste category Physically Handicapped for appointment as Pourakarmika in respondent No.4. 2. The brief facts of the case are that, the petitioner is working as Pourakarmika on daily wage basis since 31.03.2012 in the 4th respondent-City Municipal Corporation, whereas respondent No.5 is working as Pourakarmika in respondent No.4/Corporation since 01.10.1998. Under Annexure-B, notification dated 17.01.2023, the 3rd respondent invited applications to fill up vacancy of Pourakarmika in the City Municipal Councils of Kolar District. In 4th respondent-Corporation, 27 posts of Pourakarmikas were notified for recruitment, out of which, 5 posts were reserved for Scheduled Caste category and out of 5, one post was reserved for - 4 - NC: 2025:KHC:7763 WP No. 12652 of 2023 Scheduled Caste Physically Handicapped. Both the petitioner as well as respondent No.5 belonged to Scheduled Caste category whereas the petitioner claims that he is physically handicapped person and in that regard he places reliance on Annexures-D and D1. 3. The Recruitment Notification was restricted to the persons who are working in City Municipal Councils/ Corporations on temporary basis, contract basis or any other temporary method. Length of service was the criteria for selection. Both the petitioner and respondent No.5 participated in the selection process of Pourakarmikas claiming Scheduled Caste category reservation. In addition to that the petitioner states that he claimed reservation of Physically Handicapped. On the basis of selection criteria prescribed, 3rd respondent under Notice dated 22.02.2023 (Annexure-F) published provisional select list of Pourakarmikas. In that provisional select list, no candidate belonging to the Scheduled Caste Physically Handicapped was selected. - 5 - NC: 2025:KHC:7763 WP No. 12652 of 2023 The provisional select list provides 7 days time to file objections. The petitioner submitted his objection under Annexure-G dated 02.03.2023 claiming Scheduled Caste (Physically Handicapped) category reservation. In addition, the petitioner submitted a detailed representation under Annexure-G1 and G2 dated 23.03.2023. It is the grievance of the petitioner that without considering his objections, final select list was published under O.M. dated 28.03.2023 (Annexure-H) wherein respondent No.5 who belongs to Scheduled Caste category was appointed as Pourakarmika against Scheduled Caste Physically Handicapped vacancy. Challenging the same, the petitioner is before this Court. 4. Heard learned counsel Sri.R.Shashidhara for petitioner, learned Additional Government Advocate Sri.B.J.Eshwarappa for respondent Nos.1 to 3; Sri.Srinivasa G, learned counsel for respondent No.4 and learned counsel Sri.N.S.Bhat for respondent No.5. Perused the entire writ petition papers. - 6 - NC: 2025:KHC:7763 WP No. 12652 of 2023 5. Learned counsel for the petitioner would submit that the selection of respondent No.5 against the vacancy reserved for Scheduled Caste Physically Handicapped candidate is wholly illegal, arbitrary and opposed to the provisions of the Rights of Persons with Disabilities Act, 2016 (for short “2016 Act”). Learned counsel would submit that out of 27 posts of Pourakarmikas in the 3rd respondent Municipality, 5 posts were reserved for Scheduled Caste category and out of 5 posts, one post was reserved for Physically Handicapped. Learned counsel would submit that though the petitioner in his original application has not claimed Physically Handicapped reservation, in his objection filed on 02.03.2023, he has claimed reservation under Scheduled Caste Physically Handicapped category, enclosing necessary Physically Handicapped certificate. Learned counsel for the petitioner would submit that 3rd respondent without considering the objections of the petitioner, proceeded to issue final select list on 28.03.2023. Learned counsel would further submit that, in terms of Section 34(2) of - 7 - NC: 2025:KHC:7763 WP No. 12652 of 2023 2016 Act, a vacancy meant for Physically Handicapped category could not be filled for non-availability of a suitable person and the same shall be carried to the next succeeding recruitment and if in the succeeding recruitment year also if the benchmark disability person is not available, it may be by interchanging among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability. Learned counsel would submit that in the instant case, the procedure prescribed under Section 34(2) is not followed and respondent No.5 is appointed as Pourakarmika against the vacancy meant for Physically Handicapped. Thus, learned counsel would pray for setting aside the selection and appointment of respondent No.5 and prays for a direction to respondent No.3 to consider the case of the petitioner for appointment as Pourakarmika under Physically Handicapped category by considering his objection filed to the provisional select list published on 22.02.2023. - 8 - NC: 2025:KHC:7763 WP No. 12652 of 2023 6. Per contra, learned Additional Government Advocate Sri.B.J.Eshwarappa for respondent Nos.1 to 3 would submit that the petitioner had not claimed Physically Handicapped reservation in his application submitted on 15.02.2023. When he has not claimed Physically Handicapped reservation in his original application, he submits that the petitioner cannot subsequently claim reservation. Moreover, he submits that objection filed by the petitioner is beyond 7 days time granted under provisional select list dated 22.02.2023. Further, learned Additional Government Advocate would submit that 3rd respondent/Deputy Commissioner had filed an affidavit dated 31.01.2025 stating that disability claimed by the petitioner is on account of Fire Accident and such disability sustained in a fire accident cannot be considered as Handicapped for which, he has filed affidavit dated 10.02.2025 stating that the said statement was unintentional and sought unconditional apology. He also sought permission to withdraw the previous affidavit filed on 31.01.2025. Further, learned Additional Government - 9 - NC: 2025:KHC:7763 WP No. 12652 of 2023 Advocate is not in a position to answer the contention of the petitioner placing reliance on Section 34(2) of 2016 Act. 7. Learned counsel Sri.N.S.Bhat appearing for respondent No.5 would submit that respondent No.5 had applied for the post of Pourakarmika under Scheduled Caste category and there is no mistake or mis- representation by respondent No.5 in getting appointment as Pourakarmika. Further, he submits that for the mistake of 3rd respondent, respondent No.5 cannot be made to suffer. Thus, learned counsel would pray for protecting the appointment of respondent No.5. 8. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the following points would arise for consideration: (i) Whether respondent no.3 could have transferred the vacancy of Scheduled Caste Physically Handicapped to Scheduled Caste category on the premise - 10 - NC: 2025:KHC:7763 WP No. 12652 of 2023 of non-availability of Scheduled Caste Physically Handicapped candidate? (ii) Whether the selection and appointment of 5th respondent as Pourakarmika against Scheduled Caste Physically Handicapped category needs interference? 9. Answer to the above points would be in the negative and affirmative for the following reasons: Under Notification dated 17.01.2023, the 3rd respondent invited applications to fill up the vacancy of Pourakarmikas in various City Municipal Councils of Kolar District. Under 4th respondent-Kolar City Municipal Council, 27 vacancies of Pourakarmikas were notified, out of which, 5 posts were reserved for Scheduled Caste category, out of 5 posts, one post was again reserved for Physically Handicapped under Horizontal reservation. The petitioner initially applied for the post of Pourakarmika in the 4th respondent-Municipal Council claiming Scheduled Caste category reservation so also 5th respondent applied for the post of Pourakarmika claiming reservation of - 11 - NC: 2025:KHC:7763 WP No. 12652 of 2023 Scheduled Caste category. As stated above, the method of selection was on the basis of length of service, since notification inviting applications was meant only for the persons who were working as Pourakarmika on contract basis or daily wage basis or any other temporary basis in the Municipal Councils. 10. The provisional select list following the selection procedure was published on 22.02.2023 (Annexure-F) which indicates the name of respondent No.5 against Scheduled Caste Physically Handicapped category. One Sri.Srinivas was selected under 2A Physically Handicapped vacancy and one Sri.D.Venkatarama was selected against General Merit Physically Handicapped vacancy. Learned counsel for respondent No.5 inviting attention of this Court to notification at Annexure-A wherein Rule (4) of the Karnataka Municipalities (Recruitment of Pourakarmikas in City Municipal Councils, Town Municipal Councils and Town Panchayaths) (Special) Rules 2022 (for short “2022 Rules”) submits that if candidates belonging to General - 12 - NC: 2025:KHC:7763 WP No. 12652 of 2023 Merit or any other backward class are not available, those vacancies shall be filled up by candidates belonging to Scheduled Caste and Scheduled Tribe as “one time measure”. The said Rule 4 of 2022 Rules would have no application insofar as Physically Handicapped category reservation is concerned. 11. The affidavit dated 10.01.2025 of the 3rd respondent- Deputy Commissioner indicates that 5th respondent was appointed against Physically Handicapped vacancy since there was no Scheduled Caste Physically Handicapped category candidate. 2016 Act would not permit such filling up of vacancy for non-availability of Physically Handicapped candidates. Section 34 of 2016 reads as follows: “34. Reservation.— (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of w hich, one per cent. each shall be reserved - 13 - NC: 2025:KHC:7763 WP No. 12652 of 2023 for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:— (a) blindness and low vision; (b) deaf and hard of hearing; (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness; (e)multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities: Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time: Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such - 14 - NC: 2025:KHC:7763 WP No. 12652 of 2023 notifications exempt any government establishment from the provisions of this section. (2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate government. (3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.” - 15 - NC: 2025:KHC:7763 WP No. 12652 of 2023 Section 34 of 2016 Act provides reservation to persons with benchmark disabilities. Sub-Section (2) of Section 34 of 2016 Act makes it clear that in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancies shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability. 12. In the instant case, the said procedure is not followed. At the first instance itself, the 3rd respondent could not have transferred the vacancy of Physically Handicapped to others for non-availability of Physically - 16 - NC: 2025:KHC:7763 WP No. 12652 of 2023 Handicapped candidates. The procedure followed by 3rd respondent is totally opposed to Section 34 of 2016 Act. 13. The Division Bench of this Court while considering identical question as to whether the vacancy earmarked for Physically Handicapped category could be filled up by candidates other than Physically Handicapped belonging to other category in the case of SHAMASHUDDIN M. SAVADATTI V. KARNATAKA PUBLIC SERVICE COMMISSION AND OTHERS reported in (2015) SCC Online Kar 9535, at paragraphs 28, 30, 31, 32 and 33 has held as follows: “28. In selection of 21 posts reserved for candidates with disability, reservation has not been followed by the 1st respondent/KPSC while inviting the applications for the post of Assistant Engineers under notification dated 5.7.2007. The selection and appointment of respondent No. 3, who belongs to 2A category (General i.e., non- disabled) under 2A physically handicapped category is contrary to the provisions of Sections 33 and 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the - 17 - NC: 2025:KHC:7763 WP No. 12652 of 2023 dictum of the Hon'ble Supreme Court as stated supra. Since the petitioner belongs to one of the categories mentioned under the provisions of Section 33 of the Act, certainly he is entitled for appointment to the post of Assistant Engineer under 2A/PH category. The 3rd respondent, who belongs to 2A category (general merit) should not have been appointed. Therefore, the selection made by the 1st respondent/KPSC selecting the 3rd respondent in 2A/PH category is contrary to the notification dated 14.8.2007 and the provisions of Sections 33 and 36 of the Act. So also the same is in violation of Articles 16(1) and 14 of the Constitution of India. Therefore, the selection made by the 1st respondent/KPSC selecting respondent No. 3, is invalid. 30. For the first time, reservation was provided to physically handicapped candidates under the notification dated 14.8.2007. Undisputedly the petitioner herein was the highest scorer under the physically handicapped candidates, from among the failed candidates. All the 21 posts are reserved for hearing impairment and locomotor disability candidates. It is also not in dispute that the petitioner is the candidate with locomotor disability and is more meritorious (who has scored highest) in unsuccessful candidates lt is not in dispute that the third respondent is not the - 18 - NC: 2025:KHC:7763 WP No. 12652 of 2023 physically disabled candidate. All these facts clearly reveal that the post reserved for physically disabled candidate should have been given to the next best candidate under the very category of physically disabled, as per Section 33 read with Section 36 of the Act. In the first year of recruitment itself, it is not open for the State Government to shift the reserved post to unreserved candidate in physically handicapped category. 31. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. The disabled people constitute a special class. Reservation for persons with disabilities has nothing to do with the ceiling of 50%. 3% of the vacancies are to be reserved in favour of physically handicapped persons. This would be a reservation relatable to Clause-1 of Article-16. These factors are overlooked by respondents 1 and 2 while not considering the case of the petitioner and while selecting the 3rd respondent herein. 32. Under any stretch of imagination, the selection of the third respondent cannot be said to be legal. On contrary, his selection is illegal, unauthorised by law and illogical. Hence, the same is liable to be quashed. - 19 - NC: 2025:KHC:7763 WP No. 12652 of 2023 33. In view of the aforesaid reasons, writ petition is allowed in part. The impugned order passed by the KAT dated 19th May, 2010 made in Application No. 5971/2008 is hereby quashed. So also the final selection list dated 16.10.2008 insofar as selection of respondent No. 3 - Mr. Manjunath H.M., under 2A/PH category is quashed. We declare that the petitioner is entitled to be appointed to the post of Assistant Engineer (Civil) under 2A/PH category. However, we make it clear that though the 3rd respondent belongs to 2A-general category, he has been wrongly selected under 2A/PH category. Since he has been in service for more than 7 years, it is open for him to approach the competent authority by making appropriate representation for alternative remedy, if permissible in accordance with law. 14. The appointment of respondent No.5 who is not a Physically Handicapped person against the vacancy meant for Physically Handicapped is wholly illegal and opposed to the provisions of Section 34 of 2016 Act. However, it is for respondent No.3 to adjust respondent No.5 if the vacancy is available under Scheduled Caste category. - 20 - NC: 2025:KHC:7763 WP No. 12652 of 2023 15. Though the petitioner in his application has not claimed reservation under Physically Handicapped category and had claimed reservation only under Scheduled Caste, but while filing his objections to the Provisional select list on 23.03.2023 (Annexures-G and G1), the petitioner has specifically stated that he is a Physically Handicapped person belonging to Scheduled Caste category. 16. Admittedly, the provisional list provides 7 days time to file objections to the provisional list, the list was finalized only on 28.03.2023 much after filing of the objection by the petitioner on 23.03.2023. Respondent No.3 was legally obliged to consider the objections of the petitioner wherein he had claimed reservation under Physically Handicapped category also. 17. For the reasons recorded above, the following order: (i) The writ petition is allowed in part. The selection and appointment of respondent No.5 under provisional list bearing No.f£ÀPÉÆÃ/£ÉêÀÄPÁw - 21 - NC: 2025:KHC:7763 WP No. 12652 of 2023 (¥ËgÀPÁ«ÄðPÀ)/¹Dgï/516/2022-23 dated 22.02.2023 as well as final select list bearing No.f£ÀPÉÆÃ/¥Ë.«.£Éà (PÉÆïÁgÀ £ÀUÀgÀ¸À¨sÉ) /¹Dgï/516/2022-23 dated 28.03.2023 vide Annexures-F and H are quashed. (ii) Respondent No.3 is directed to consider the objection of the petitioner filed to the provisional select list under Annexure-G and if he is otherwise eligible for appointment as Pourakarmika in the 3rd respondent-Municipal Council to consider the same and pass appropriate order to appoint petitioner as Pourakarmika against Scheduled Caste Physically Handicapped category. (iii) Time for compliance: 45 days from today. SD/- (S.G.PANDIT) JUDGE MPK List No.: 1 Sl No.: 20