1 Reserved on : 11.02.2025 Pronounced on : 29.04.2025 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.103353 OF 2024 (S-PRO) BETWEEN: KALLAPPA GONNAGAR S/O HANAMAPPA GONNAGAR AGED ABOUT 32 YEARS OCC: JUNIOR ASST. O AND M DIVISION R/O KALALABANDI, TQ: KUSHTAGI DISTRICT: KOPPAL 3 583 277. ... PETITIONER (BY SRI RAVICHANDRA DADGAL, ADVOCATE, SRI RAHUL S.KUNTOJI, ADVOCATE, SRI SUNIL DESAI, ADVOCATE AND SRI KUSHAL N.KAMBALE, ADVOCATE) AND: 1 . THE DIRECTOR (A AND H R) KARNATAKA POWER TRANSMISSION CORPORATION LTD., CORPORATION OFFICE KAVERI BHAVAN, BENGALURU. 2 . THE GENERAL MANAGER (A AND H R D) CORPORATE OFFICE, GESCOM KALABURGI, DISTRICT: KALABURGI 3 585 211. R 2 3 . THE SUPERINTENDING ENGINEER (ELE) O AND M CIRCLE, GESCOM SHIVASHANTAVEERA NAGAR ANAND COMPLEX, 1ST FLOOR HOSAPETE ROAD, KOPPAL DISTRICT: KOPPAL 3 583 231. 4. HANUMAPPA AGED ABOUT 34 YEARS OCC: JUNIOR ASSISTANT (O AND M) YALABURGA SUB - DIVISION KOPPAL, KOPPAL DISTRICT. 5. PRAKASH SHARANAPPA HUGGANNAVAR AGED ABOUT34 YEARS OCC: JUNIOR ASSISTANT (O AND M) YALABURGA SUB-DIVISION KOPPAL, KOPPAL DISTRICT. 6. VINOD KUMAR S/O MALLAPPA AGED ABOUT 34 YEARS OCC: JUNIOR ASSISTANT (O AND M) KOPPAL SUB-DIVISION, KOPPAL, KOPPAL DISTRICT. 7. MANGALAPPA S/O BASAPPA HADAPAD AGED ABOUT 37 YEARS OCC: JUNIOR ASSISTANT (O AND M) KOPPAL SUB-DIVISION KOPPAL, KOPPAL DISTRICT. 8. VEERSH S/O KALLAPPA BELLAD AGED ABOUT 38 YEARS OCC: JUNIOR ASSISTANT 3 (O AND M) KOPPAL SUB-DIVISION KOPPAL, KOPPAL DISTRICT. 9. LAKKAPPA S/O TIMMAPPA AGED ABOUT 33 YEARS OCC: JUNIOR ASSISTANT (O AND M) KOPPAL SUB-DIVISION KOPPAL, KOPPAL DISTRICT. ... RESPONDENTS (BY SRI B.S.KAMATE, ADVOCATE FOR R1; SRI C.R.HIREMATH, ADVOCATE FOR R2 AND R3; R5 TO R9 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED ENDORSEMENT BEARING NO. CEA(«)PÉÆ/G¯É¤/¯ÉC/¸À¯ÉC/»¸À(¹)/PÀ-/2023-24/2349 DATED. 21.08.2023 PASSED BY THE RESPONDENT NO.3 VIDE ANNEUXRE-A AND CONSEQUENTLY QUASH THE FINAL SENIORITY LIST DATED. 02.08.2023 BEARING NO. CEA(«)/G¯É¤/¯ÉC/¸À¯ÉC/»¸À(¹)/PÀ-/2023- 24/CYS-4 PUBLISHED BY THE 3RD RESPONDENT PERTAINING TO THE POST OF JUNIOR ASSISTANT VIDE ANNEXURE-H IN SO FAR AS PETITIONER AT SL.NO. 18 UNDER NHKR AND RESPONDENT NO.4 TO 9 AT SL. NO. 24 TO 29 UNDER HKR IS CONCERNED. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 11.02.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 4 CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioner is before this Court calling in question seniority list dated 02-08-2023, insofar as it relates to the cadre of Junior Assistant in which the petitioner is placed at Sl.No.18 in the non- Hyderabad-Karnataka Region seniority list. A consequential direction by issuance of a writ in the nature of mandamus is also sought to redo the seniority list considering the name of the petitioner as belonging to Hyderabad-Karnataka Region on consideration of four representations submitted by him. 2. Heard Sri Ravichandra Dadgal, learned counsel appearing for the petitioner, Sri B.S.Kamate, learned counsel appearing for respondent No.1 and Sri C.R.Hiremath, learned counsel appearing for respondent Nos.2 and 3. 3. Facts, in brief, germane are as follows:- The 1st respondent/Karnataka Power Transmission Corporation Limited (hereinafter referred to 8the Corporation9 for short) issues a notification calling for applications from eligible 5 candidates to various posts in the Corporation and other ESCOMs. The petitioner finding himself eligible and qualified to be appointed to the post of Junior Assistant, submits his application claiming reservation under Article 371J of the Constitution of India, which envisages reservation for persons coming from Hyderabad- Karnataka Region. A final select list was notified. The name of the petitioner was found at Sl.No.4 in the common list due to his high merit. He was placed under non-Hyderabad-Karnataka Region. On 30-06-2018, he comes to be appointed as a Junior Assistant in the O & M Division, GESCOM, Gangavathi. 4. On 13-02-2020, the 2nd respondent publishes a seniority list in the cadre of Junior Assistant again placing the petitioner at Sl.No.4 under the non-Hyderabad-Karnataka Region. Those were provisional seniority lists. A final seniority list comes to be notified on 02-08-2023. The name of the petitioner is again found in the non-Hyderabad-Karnataka Region. He, therefore, represents that his name should be found in the Hyderabad-Karnataka Region as he had applied only against that region. An endorsement comes to be issued on the representation that the petitioner will not be 6 considered as a candidate belonging to Hyderabad-Karnataka Region for the reason that the petitioner has been appointed under non-Hyderabad-Karnataka Region. The petitioner then again represents, not once but four times. The representations go unheeded and the seniority list continues to operate denying the petitioner9s promotion to the post of Assistant, while respondents 4 to 9 are promoted, in the light of the fact that they were retained in the Hyderabad-Karnataka Region seniority list. It is, therefore, the petitioner is at the doors of this Court seeking the aforesaid prayer. 5. The learned counsel appearing for the petitioner would vehemently contend that if the petitioner is denied reservation as obtaining under Article 371J, it would become contrary to law as the petitioner belongs to the said region; he has applied, claiming reservation as belonging to the said region. The said benefit is taken away on the ground that he was found to be high in merit and was at Sl.No.7 in the rank list. He would contend that without any reason and without the petitioner knowing it, he has been placed in non-Hyderabad-Karnataka Region seniority list. The petitioner all the while kept quiet for the reason that he was posted 7 to places only in that area, which made him to believe that he was being considered as Hyderabad-Karnataka Region candidate. He would come to know of it only when a final seniority list is notified, and therefore, submits plethora of representations to set the anomaly right. 6. Per contra, the learned counsel representing the Corporation - Sri B.S.Kamate and the learned counsel representing respondents 2 and 3 would contend that for the first time, the petitioner9s name was not found in the seniority list of persons belonging to Hyderabad-Karnataka Region. It was notified on 31-07-2019. The petitioner did not object. Again, in the year 2020, another seniority list was notified. The petitioner did not object. Now, when he is due for promotion to the post of Assistant, he now wants to be considered as a candidate belonging to Hyderabad- Karnataka Region, notwithstanding the fact that he has acquiesced himself qua his right as belonging to non-Hyderabad-Karnataka Region candidate. It is the submission that the petitioner is estopped from challenging the same and contending that he should be under the said seniority list. On this solitary circumstance, the 8 learned counsel representing the respondents 1, 2 and 3 would seek dismissal of the petition. The other respondents though served remained unrepresented. 7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the following issues arise for my consideration: (i) Whether the petitioner who had at the time of filing the application expressly claimed reservation under Article 371J of the Constitution of India as a candidate from Hyderabad-Karnataka region would loose his domicile on being appointed under non- Kalyana Karnataka. (ii) Whether the appointment of the petitioner under non Hyderabad-Karnataka list would take away his right to promotion under the Hyderabad- Karnataka list. Since both the issues are intertwined and the second being an offshoot of the first, I deem it appropriate to consider them together. 9 CONSIDERATION: 8. A little history to Article 371J is necessary to be noticed. It need not detain this Court to notice it all over again, as the co- ordinate bench of this Court in the case of NAVEEN KUMAR H.N. VS. STATE1, has traced the entire history. I deem it appropriate to paraphrase the same. The coordinate bench has held as follows: <3. The Constitution of India was amended for the ninety eighth (98th) time and Article 371J was inserted into Chapter-XXI of the Constitution of India, which provides for making of Temporary, Transitional and Special provisions. Article 371J is with respect to the State of Karnataka. 4. Article 371J consists of two parts. The first part i.e., Article 371J (1), provides for the President of India to make an order in respect of the State of Karnataka and also entrusts for special responsibilities to the Governor in matters of: a. establishment of a separate development board for Hyderabad-Karnataka region; b. equitable allocation of funds for developmental expenditure in the said region; and c. equitable opportunities and facilities for the people belonging to the said region in the matters of public employment, education and vocational training. 1 Writ Petition No.4979 of 2023 and connected matter 10 5. The second part i.e., Article 317J (2), elaborates the purposes that an order made by the President could provide for, and specifies the following: a. reservation of a proportion of seats in educational and vocational training institutions in the Hyderabad-Karnataka region for students who belong to the said region by birth or by domicile; b. identification of posts or classes of posts under the State Government and also in any body or organization under the control of a State Government in the Hyderabad-Karnataka region and for reservation of a proportion of such posts for persons who belong to that region by birth or by domicile along with consequential appointment thereto, either by direct recruitment or by promotion or in any other manner as may be specified in the said order. 6. Thus, the President was empowered to make an order imposing certain responsibilities on the Governor and the order so made could provide for reservation of a proportion of seats in educational institutions; and for identification, reservation and appointment by direct recruitment or by promotion to a proportion of such posts, for persons belonging to the Hyderabad-Karnataka region. 7. By virtue of the powers conferred under the ninety-eighth amendment, the President of India, vide Notification dated 24.10.2013, made an order titled <The State of Karnataka (Special Responsibility of Governor for Hyderabad-Karnataka Region) Order, 2013= (for short, referred to as <the 2013 Order=). 8. Clause 2 of the 2013 Order cast a special responsibility on the Governor of Karnataka for establishment of a separate development board for the Hyderabad-Karnataka region and for other matters referred to in clause (1) and (2) of Article 371J of the Constitution in respect of that region. 11 9. On 06.11.2013, by virtue of the powers conferred under the Presidential Order, the Governor made an order titled as <The Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) Order, 2013 (for short, referred to as <the Governor9s Order=), which came into force on the same day, and comprised of two chapters. Paragraphs 2 to 5 of the 1st Chapter dealt with the organization of local cadres, allotment of persons, and transfer of persons, while paragraphs 6 and 7 dealt with domicile, and establishment of an authority to issue domicile certificate. 10. Paragraph 3 of the order, which provided for Organisation of local cadres, stated that 75% of the posts in the Hyderabad-Karnataka region in Group A (Junior Scale) and in Group B posts be organised into a local cadre. 11. In respect of Group C posts, 80% of the posts in the Hyderabad-Karnataka region were to be organised into a local cadre, while in respect of Group D posts in the Hyderabad-Karnataka region, 85% of the posts were to be organised into a local cadre. 12. Firstly, the posts available in the Hyderabad-Karnataka region were to be identified as local cadres in the percentages mentioned above i.e., 75% for Group A (Junior Scale) and Group B posts; 80% for Group C posts; and 85% for Group D posts. 13. Secondly, as under paragraphs 4 and 5, persons holding existing posts were to be organised into local cadres by giving an option to the local persons for being allotted in the local cadre in the region. A provision was also made for persons aggrieved of the allotment made to him, to submit a representation and for its consideration by the competent authority. The region for which a local cadre was organised was also stated to be considered as a separate unit for the purposes of recruitment, appointment, seniority, promotion and transfer. 14. Paragraph 6 defined <Domicile= of a person from the local region for the purpose of direct recruitment 12 or promotion. Paragraph 7 provided for notification to the competent authority for issuance of a certificate of eligibility to a local person to claim reservation. 15. Paragraph 8, which would be relevant for this case, stated that there should be a reservation made to the extent stated above in the paragraph 3, in matters of direct recruitment or promotion, in respect of posts in the local cadre. 16. Thus, in the local cadres which were to be organised pursuant to the Governor9s Order, 75% of the posts in respect of Group A (Junior Scale) and Group B, 80% in respect of Group C posts and 85% of Group D posts were to be reserved for persons belonging to the Hyderabad- Karnataka region for direct recruitment and for promotion. This reservation was made subject to the two conditions imposed in paragraph 8 (4). 17. The other paragraphs of Chapter-I also provided for issuance of directions to the State Government which would be necessary for carrying out the purposes of giving effect to the Governor9s Order. Paragraph 10 of the Order stated that the said Order would have an overriding effect on any Rule, Regulation or Bye-Law made before the commencement of the Governor9s Order in respect of direct recruitment or promotion to the posts. 18. The 2nd Chapter of the Governor9s Order contained provisions relating to State-level offices or institutions or apex institutions, shifting of State-level offices, age relaxation and grace marks in the matter of employment of the local persons, and also for protection and promotion of the rights of local candidates. 19. The Governor9s Order was amended by way of a Notification dated 20.01.2014 (<the Amendment Order=), whereby, as against the earlier requirement of the Governor taking action, the State Government was indicated as the authority to take action and implement the Governor9s Order in all the relevant paragraphs of the Governor9s Order, along with certain other amendments. 13 20. The Amendment Order also inserted certain paragraphs which enabled the State Government to make rules to carry out the purposes of the 2013 Order, issue a notification to remove any difficulty which may have arisen in giving effect to the provisions of the order, and also provided for a clause which empowered the Government to interpret the provisions of the order and issue clarifications in that regard. 21. On 29.01.2014, the State Government, in exercise of the powers conferred under paragraph 15 of the Governor9s Order, framed rules, which were titled <Karnataka Public Employment (Reservation in appointment for Hyderabad- Karnataka Region) (Organization of Local Cadres, Allotment and Transfer of Persons) Rules, 2013 (for short, referred to as <the 2013 Rules=). 22. These Rules elaborated for the manner in which the local cadres were to be organized, the manner in which the roster would have to be operated for the purpose of reservation and also notifying the local cadre with the roster. It also provided for allotment of persons to the local cadre along with making rules in relation to seniority and related issues, in addition to shifting of a non-local person from a local cadre. These Rules were basically in respect of persons already holding the posts in the region and would, thus, have no real relevance to the case on hand. 23. To summarise, the Governor, by virtue of the powers conferred under Article 371J, made an order providing for identification of the posts and for reservation of a proportion of the posts for appointment in the Hyderabad-Karnataka region, and the State Government framed rules in the matters of organization of local cadre, allotment and transfer of persons, thereby seeking to achieve the intent of Article 371J in the matter of recruitment and promotion. 24. On 22.05.2015, the State Government issued a Circular issuing four clarifications in relation to the issues that had arisen while implementing the Governor9s Order. To this writ petition, only the third clarification would be relevant, and the same reads as follows: 14 <¸Àà¶ÖÃPÀgÀt 3: ¸ÀܽAiÀÄ ºÁUÀÆ «ÄPÀÄ̽zÀ ªÀÈAzÀUÀ¼À°è ®¨sÀå«gÀĪÀ ºÀÄzÉÝUÀ¼À£ÀÄß vÀÄA§ÄªÀ §UÉÎ C£ÀĸÀj¸À¨ÉÃPÁzÀ «zsÁ£ÀUÀ¼À §UÉÎ. ªÀiÁvÀÈ ªÀÈAzÀ¢AzÀ ¸ÀܽÃAiÀÄ ªÀÈAzÀ ºÁUÀÆ «ÄPÀÄ̽zÀ ªÀÈAzÀUÀ¼À£ÀÄß ¨ÉÃ¥Àðr¹. PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀ ¸ÀܽÃAiÀÄ ªÀåQÛUÀ½AzÀ DAiÉÄÌ ¥ÀqÉzÀÄ. CªÀgÀªÀgÀ DAiÉÄÌUÀ£ÀĸÁgÀªÁV ºÀAaPÉ ªÀiÁrzÀ £ÀAvÀgÀzÀ°è JgÀqÀÆ ªÀÈAzÀUÀ¼À°è ®¨sÀAiÀÄ«gÀĪÀ SÁ° ºÀÄzÉÝUÀ¼À£ÀÄß £ÉÃgÀ £ÉêÀÄPÁw ªÀÄÄSÉãÀ vÀÄA§ÄªÀ°è £ÉêÀÄPÁw ¥Áæ¢üPÁjUÀ¼ÀÄ ¸ÀܽÃAiÀÄ ºÁUÀÆ «ÄPÀÄ̽zÀ ªÀÈAzÀUÀ¼À°è ®¨sÀå«gÀĪÀ ºÀÄzÉÝUÀ½UÉ KPÀ PÁ®PÉÌ(JgÀqÀÆ ªÀÈAzÀUÀ½UÉ MAzÉà Cfð) CfðAiÀÄ£ÀÄß DºÁ餹. £ÉêÀÄPÁw ¥ÀæQæAiÉÄ ªÀÄÄAzÀĪÀgɹPÉÆAqÀÄ ºÉÆÃUÀĪÀ §UÉÎ £ÉêÀÄPÁw CfðAiÀÄ°èAiÉÄà F PɼÀPÀAqÀAvÉ DAiÉÄÌ ¥ÀqÉAiÀÄĪÀAvÉ DAiÉÄÌ ¥Áæ¢üPÁjUÀ½UÉ ¤zÉÃð²¸À¯ÁVzÉ. 1. ºÉÊzÁæ¨Ázï-PÀ£ÁðlPÀ ¸ÀܽÃAiÀÄ ªÀÈAzÀzÀ «ÄøÀ¯Áw ºÀÄzÉÝUÀ½UÉ DAiÉÄÌ PÉÆÃgÀÄ«gÁ: ºËzÀÄ/E®è. 2. ¸ÀܽÃAiÀÄ ªÀÈAzÀ DAiÉÄÌ ªÀiÁrzÀÝ°è. ¸ÀܽÃAiÀÄ ªÀÈAzÀzÀ°è£À DzÀåvÉ: (C) ªÉÆzÀ®£É DzÀåvÉ: gÁdå ªÀÄlÖzÀ ¸ÀܽÃAiÀÄ ªÀÈAzÀ (±ÉÃPÀqÀ 8gÀAwgÀĪÀ)/¥ÀæzÉòPÀ (f¯Áè/vÁ®ÆèPÀÄ) ªÀÄlÖzÀ ¸ÀܽÃAiÀÄ ªÀÈAzÀ (±ÉÃPÀqÀ 75/80/85gÀAwgÀĪÀ) (D) JgÀqÀ£Éà DzÀåvÉ: gÁdå ªÀÄlÖzÀ ¸ÀܽÃAiÀÄ ªÀÈAzÀ (±ÉÃPÀqÀ 8gÀAwgÀĪÀ)/¥ÀæzÉòPÀ (f¯Áè/vÁ®ÆèPÀÄ) ªÀÄlÖzÀ ¸ÀܽÃAiÀÄ ªÀÈAzÀ (±ÉÃPÀqÀ 75/80/85gÀAwgÀĪÀ) 3. «ÄPÀÄ̽zÀ ªÀÈAzÀzÀ°è ®¨sÀå«gÀĪÀ ºÀÄzÉÝUÀ½UÀÆ Cfð ¸À°è¸À®Ä §AiÀĸÀÄ«gÁ?:ºËzÀÄ/E®è Note:ºÉÊzÁæ¨Ázï-PÀ£ÁðlPÀ ¸ÀܽÃAiÀÄ ªÀÜAzÀzÀ ºÀÄzÉÝUÉ DAiÉÄÌ PÉÆÃj. Cfð ¸À°è¸ÀĪÀ ¸ÀܽÃAiÀÄ C¨sÀåyðUÀ¼ÀÄ «ÄPÀÄ̽zÀ ªÀÈAzÀUÀ¼À°è ºÀÄzÉÝUÀ½UÀÆ Cfð ¸À°è¸À®Ä CºÀðjgÀÄvÁÛgÉ. 4. ¸ÀܽÃAiÀÄ ªÀÈAzÀ ºÁUÀÆ «ÄPÀÄ̽zÀ ªÀÈAzÀUÀ¼À°è MAzÉà ºÀÄzÉÝAiÀÄ DAiÉÄÌUÉ CºÀðvÉ ºÉÆA¢zÀÝ°è. AiÀiÁªÀ ªÀÈAzÀzÀ ºÀÄzÉÝUÉ DAiÉÄÌ §AiÀĸÀÄwÛÃgÁ?:¸ÀܽÃAiÀÄ ªÀÈAzÀ/«ÄPÀÄ̽zÀ ªÀÈAzÀ. 5. «ÄPÀÄ̽zÀ ªÀÈAzÀzÀ°è ¸ÀܽÃAiÀÄ ªÀÈAzÀQÌAvÀ GvÀÛªÀÄ DzÀåvÉ (better preference) zÉÆgÉAiÀÄĪÀÅzÁzÀ°è «ÄPÀÄ̽zÀ ªÀÈAzÀ DAiÉÄÌ ªÀiÁqÀÄ«gÁ?:ºËzÀÄ/E® è Note:«ÄPÀÄ̽zÀ ªÀÈAzÀzÀ°è DAiÉÄÌ §AiÀĹ £ÉêÀÄPÁw ºÉÆA¢zÀÝ°è. ¸ÉêÁ CªÀ¢üAiÀÄ°è ¸ÀܽÃAiÀÄ ªÀÈAzÀzÀ°è ®¨sÀå«gÀĪÀ AiÀiÁªÀÅzÉà ¸ÀªÀ®vÀÄÛ ¤ÃqÀ¯ÁUÀĪÀÅ¢®è JA§ÄzÀ£ÀÄß ¸Àà¶ÖÃPÀj¸À¯ÁVzÉ.= 15 25. As can be seen from the above clarification, after the exercise of identification of the posts was completed and the persons holding the posts were allotted to the local cadres as per their option, the recruiting authorities, in respect of the remaining vacancies, were required to invite a single application at a time for filling up both the local cadre and the non-local cadre posts, and in that application, they were required to incorporate five options to elicit the choice of the candidates. The options to be incorporated in the application were in respect of the following: a. As to whether they wished to be allotted under the local cadre; b. If selected to the local cadre, whether they would give first preference to be in the State-level local cadre (i.e., 8% reservation) or second preference to the Regional local cadre (i.e., the cadre in which 75% or 80% or 85% posts had been reserved for persons from the local region); c. Whether they wished to apply for the vacancies in the non local cadre also? i. A note was appended to this option with a clarification that the persons from the local region were also entitled to apply for the non-local cadre; d. In the event the candidate was selected in the local cadre as well as in the non-local cadre, whether he would opt for the local cadre or the non-local cadre; and e. In the event the candidate got a better preference in the Non-local cadre, whether the candidate would choose to opt for the local cadre or for the non-local cadre. i. This option was clarified with a note that if a candidate was appointed as per his option to the non-local cadre, he would not be eligible to claim 16 reservation under Article 371J or the benefits provided for under the local cadre. 26. This clarification was, obviously, issued in order to have a singular process of recruitment for both the local and the non-local cadres, and at the same time, also ascertain of the desire of the candidates for allotment, either to the local cadre or to the non-local cadre, on being recruited. Fundamentally, the exercise of this option would enable the cadre controlling authority to make an easy determination of the allotment of persons so selected, as per their choice. 27. On 16.11.2016, another Circular was issued in which there was a complete rethinking of the earlier concept of having a single application for both local and non-local cadres and with the provisions for giving options to choose the cadre at the very time of recruitment.= (Emphasis supplied) Just before issuance of Circular dated 16-11-2016, where a rethinking of the earlier concept of having single application for both local and non-local cadres for giving options to these cadres, at the time the subject recruitment emerges. On 08-09-2016, the applications had already been called from eligible candidates for recruitment to various posts in the Corporation and in ESCOMS. The petitioner applies. What is germane in the application of the petitioner, is as follows: 17 In the column as to whether the petitioner is claiming Hyderabad- Karnataka Reservation, the petitioner indicates 8Yes=. Therefore, he has claimed Hyderabad-Karnataka Reservation. Two final seniority lists were notified on 08-09-2019. Owing to high percentage of marks that the petitioner secures which is 99.85128 per cent, he is placed in the non-Hyderabad-Karnataka Region final list to the post of Junior Assistant and another list of Hyderabad- 18 Karnataka Region was also notified. The petitioner, as observed above, was placed in non-Hyderabad-Karnataka Region list. On 30th June, 2018, the petitioner comes to be appointed. The appointment order indicated that seniority list would be notified after the pending litigation and verification of certificates so submitted. Clauses 7, 8 and 9 of the appointment order read as follows: “….. ….. …. 7. ®® ®® ®® ®® ¾ ¾ ¾ ¾ ¾ ¯°Í½ ¾ ¯°Í½ ¾ ¯°Í½ ¾ ¯°Í½ ¾Î ¾Î ¾Î ¾Î ÎÞ¾ ÎÞ¾ ÎÞ¾ ÎÞ¾vÁ ¿¯Î ¿¯Î ¿¯Î ¿¯Î ¼¬®Î ¼¬®Î ¼¬®Î ¼¬®Î ¾¾¾¾Î ¾¾¾¾Î ¾¾¾¾Î ¾¾¾¾Î °Î ¼!¾Í½ °Î ¼!¾Í½ °Î ¼!¾Í½ °Î ¼!¾Í½ ¯®"#Î ¯®"#Î ¯®"#Î ¯®"#Î ¾Î ¾Î ¾Î ¾Î $%¾&'$ $%¾&'$ $%¾&'$ $%¾&'$ (¾½&)$ (¾½&)$ (¾½&)$ (¾½&)$ *+ÎÎ,Ý *+ÎÎ,Ý *+ÎÎ,Ý *+ÎÎ,Ý (ÎÞ+¾./¾0 ÎÞ+¾./¾0 ÎÞ+¾./¾0 ÎÞ+¾./¾0 $%¾&'$ $%¾&'$ $%¾&'$ $%¾&'$ ®.+ÎݾΠ®.+ÎݾΠ®.+ÎݾΠ®.+ÎݾΠ%ÎÝ®¾3¯ %ÎÝ®¾3¯ %ÎÝ®¾3¯ %ÎÝ®¾3¯ 4ݼ!¾3 4ݼ!¾3 4ݼ!¾3 4ݼ!¾3) 5+Îݾ 5+Îݾ 5+Îݾ 5+Îݾ 2013 ¾Î ¾Î ¾Î ¾Î 6®°7¯ 6®°7¯ 6®°7¯ 6®°7¯ Îΰ7¼!¾Í½ Îΰ7¼!¾Í½ Îΰ7¼!¾Í½ Îΰ7¼!¾Í½ ¯®"#Î ¯®"#Î ¯®"#Î ¯®"#Î (ÎÝ8¾ (ÎÝ8¾ (ÎÝ8¾ (ÎÝ8¾ ÎÝ¿9Î¯Í ÎÝ¿9Î¯Í ÎÝ¿9Î¯Í ÎÝ¿9Î¯Í :¿®<°Í¬ :¿®<°Í¬ :¿®<°Í¬ :¿®<°Í¬ +Î+Î+Î+Î (®¬Í ®¬Í ®¬Í ®¬Í ¼®> ¼®> ¼®> ¼®> ¿¯® ¿¯® ¿¯® ¿¯® ¼¾&°?® ¼¾&°?® ¼¾&°?® ¼¾&°?® Îΰ7¼!¾Í½ Îΰ7¼!¾Í½ Îΰ7¼!¾Í½ Îΰ7¼!¾Í½ ¯®"#Î ¯®"#Î ¯®"#Î ¯®"#Î :¿®<°Í¬ +Î :¿®<°Í¬ +Î :¿®<°Í¬ +Î :¿®<°Í¬ +Î,) ®Í®Í½@Î®Í ®Í®Í½@Î®Í ®Í®Í½@Î®Í ®Í®Í½@Î®Í ÎÝ¿9¾ ÎÝ¿9¾ ÎÝ¿9¾ ÎÝ¿9¾ ¿¯® ¿¯® ¿¯® ¿¯® A¾¬, A¾¬, A¾¬, A¾¬, %¾,C¾¾¯® %¾,C¾¾¯® %¾,C¾¾¯® %¾,C¾¾¯® /¾D /¾D /¾D /¾D E°Í½ E°Í½ E°Í½ E°Í½ ®.$°¯¿ ®.$°¯¿ ®.$°¯¿ ®.$°¯¿ 5+ÎݾΠ5+ÎݾΠ5+ÎݾΠ5+ÎݾΠ:¿®<°Í¬ +Î :¿®<°Í¬ +Î :¿®<°Í¬ +Î :¿®<°Í¬ +Î. 8. ¯Í¬H ¯Í¬H ¯Í¬H ¯Í¬H ®.A¾¯ ®.A¾¯ ®.A¾¯ ®.A¾¯ ®¬. ®¬. ®¬. ®¬. ¿¬8¾I ¿¬8¾I ¿¬8¾I ¿¬8¾I HÝ$Ϭ8¾® HÝ$Ϭ8¾® HÝ$Ϭ8¾® HÝ$Ϭ8¾® 6­,L&"#Î 6­,L&"#Î 6­,L&"#Î 6­,L&"#Î %ÎÝ®¾3 %ÎÝ®¾3 %ÎÝ®¾3 %ÎÝ®¾3 5+Îݾ½¬ÍM 5+Îݾ½¬ÍM 5+Îݾ½¬ÍM 5+Îݾ½¬ÍM ¬­8¾I ¬­8¾I ¬­8¾I ¬­8¾I Ý­ Ý­ Ý­ Ý­!¾I®O°Î !¾I®O°Î !¾I®O°Î !¾I®O°Î ¼½ ¼½ ¼½ ¼½, 6¬½ 6¬½ 6¬½ 6¬½ 6­,L&¿ 6­,L&¿ 6­,L&¿ 6­,L&¿ ÎÝ¿9ί¬ÍM ÎÝ¿9ί¬ÍM ÎÝ¿9ί¬ÍM ÎÝ¿9ί¬ÍM 6½°Í¿Q 6½°Í¿Q 6½°Í¿Q 6½°Í¿Q 5R 5R 5R 5R ®<¯ ®<¯ ®<¯ ®<¯ C¾½ C¾½ C¾½ C¾½ $.A¾$®°Í¾ @ÎÎÝ $.A¾$®°Í¾ @ÎÎÝ $.A¾$®°Í¾ @ÎÎÝ $.A¾$®°Í¾ @ÎÎÝ 6+ÎÝ 6+ÎÝ 6+ÎÝ 6+ÎÝ $.A¾$® $.A¾$® $.A¾$® $.A¾$® ?®7¼!¾Í¬ +Î ?®7¼!¾Í¬ +Î ?®7¼!¾Í¬ +Î ?®7¼!¾Í¬ +Î. 9. S S S S %ÎÝ®¾3 %ÎÝ®¾3 %ÎÝ®¾3 %ÎÝ®¾3 5+Îݾ½T 5+Îݾ½T 5+Îݾ½T 5+Îݾ½T A¾¬, A¾¬, A¾¬, A¾¬, *UV *UV *UV *UV %¾,C¾¾¯® %¾,C¾¾¯® %¾,C¾¾¯® %¾,C¾¾¯® /¾D /¾D /¾D /¾D E°Í½ E°Í½ E°Í½ E°Í½ ®.$°¯¿ ®.$°¯¿ ®.$°¯¿ ®.$°¯¿ 63® 63® 63® 63® 5+Îݾ"#Î 5+Îݾ"#Î 5+Îݾ"#Î 5+Îݾ"#Î :¿®<°Í¬ +Î :¿®<°Í¬ +Î :¿®<°Í¬ +Î :¿®<°Í¬ +Î.” (Emphasis added) Seniority list in the cadre of Junior Assistant at Koppal Circle is notified. The name of the petitioner is not found. This continues in the next seniority list as well. Time arose for promotion of the 19 petitioner from Junior Assistant to Assistant. The persons who were ranked lower than the petitioner in the select list of 2016 were sought to be given promotion on the strength of the list notified on 02-08-2023. The petitioner, as observed hereinabove, was found in the non-Hyderabad-Karnataka Region list. Therefore, he submits a representation on 16-08-2023. It reads as follows: <E½>® ¢£ÁAPÀ: 16.08.2024 ²æà PÀ®è¥Àà ¼Y¿: #¾½3 D>¯ ¼¾¯$ ¾¯& & Z¾¾%¾ [¾ /Î(¾, #¾½3 E½>#Î <¼®Í\¬ A¾&®= A¾¬, 6¢üÃPÀë$ 6^¯¬°°Í () ¾¯& & Z¾¾%¾ [¾ /Î(¾, Îή_¿ A¾¬,@Î, ¿¯ : ?%¾$:02.08.2023 °®Í ®.$3°Í½ ½Ï¬ ®<® ÎݵÀÖ¾ ®<¯°Í½ *"® ½ÏAzÀ?® ¼Y"ݯ ½ÏAzÀ® ®>a¼Í½ ¬#Îb. *!ÎÝd: 1 A¾¬, +ÎÝ&¾$°Í (5 & A¾ ¼) $®., /οe°Í °½°Í ®.PÀ<® %ÎÝ®¾3 6¼ÎU%Î ®¬. ¼fÎ,: $®./g16/40360/2016-17 ?%¾$:08-09-2016 2. %ÎÝ®¾3#¾I ¼® 6h&¯ ?%¾$ :27-09-2016. 20 3. A¾¬, ®.i¾¬ ½,½(¾Y®$°Í (5 & A¾ ¼) ͼ$, $¾¬Í°I°½° %ÎÝ®¾3 63® (*"® ½ÏAzÀ®) 5R ®< ¯¾¾½¬ÍM Îΰ7® 6¼ÎU%Î ®¬.® ¢£ÁAPÀ: 16.03.2018. 4 A¾¬, ®.i¾¬ ½,½(¾Y®$°Í (5 & A¾.¼) ͼ$, $¾¬Í°I°½° %ÎÝ®¾3 DzÉñÀ ¸ÀASÉå: UÀÄ«¸ÀPÀA¤/¥Àæ.ªÀå/¯É(¹)/2018-19/¹ªÉÊJ¸ï-308 ¢£ÁAPÀ: 30.06.2018 5. ¬®k $ ÎÝ> ½Ï¬ ®'® 63® ÎÝ¿9¾ ®<¯¬ÍM ®.PÀ<°Í½ ®¬. ¼fÎ, CEA(«)/G¯É¤/¯ÉC/¸À¯ÉC/»¸À(¹)PÀ-2023-2024/¹ªÉÊJ¸ï-4 ¢£ÁAPÀ: 02.08.2023. 6 ¬®k $ ÎÝ> ½Ï¬ ®'® #Ì®, ½°?¿¬ÍM ¼¼Í½Î °8¾® ®¬. ¼fÎ, CEA(«)/G¯É¤/¯ÉC/¸À¯ÉC/»¸À(¹)/PÀ-/2023-2024/¹ªÉÊJ¸ï-07 ¢£ÁAPÀ: 14.08.2023 **** mݾ­ ¿¯ ¾Î *!ÎÝn¬® ¾a® ®¬."#Î ¼¬®¬. %¾%¾ o.Ý $¾® ¬+Î ½¯®®_ #ÎÎp¾q°, %¾. #¾½3 5® %¾¬Í D>¯ ¼¾¯$ ½Í+ÎO#Î 6h& ¼fÎ, GG:224568gÀ ®.¾° 6h&¯¬ÍM ¼, 6h&¬Íͯ8¾I $®¯ ¿°¬Í rÎe?#Î D>¯ ¼¾¯$ ½Í+ÎO#Î *!ÎÝn¬® ¾a® ®¬. ¼fÎ, (4)° %ÎÝ®¾3#ÎÎ". ¾¯& ®¬Í Z¾¾%Î [¾, h(¾. #¾½3#Î vÉÊ%¾3¸À¯ÁV ?%¾$ 06.07.2018 ° ®s8¾&½M®®Í $¬&½, ½°? 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Three more representations are submitted by the petitioner, the last of which is on 08-02-2024. It reads as follows: “To, Dated: 08.02.2024 The Superintending Engineer (Ele), O & M Circle, GESCOM, Koppal. Respected Sir, Subject:-Considering for promotions based on the category of Hyderabad Karnataka Region as per my application placed at the inception i.e., application seeking appointment. Ref:-1) The Hon'ble High Court of Karnataka order dated: 22.08.2023 2) KPTCL/B16/21723/2021-22 Dated 30.12.2023. ***** I Kallappa H. Gonnagar, Jr. Asst, O & M Division, GESCOM, Gangavathi herewith seeking kind consideration as under:- As I have admittedly applied/placed application for the post of Jr. Asst (HK-Region) accordingly I sought to produce certain document to show my category of HK Region and same has been placed through online, wherein you may pursue & examined 23 my all documents and you published a provisional list, thereafter you also issued final list of appointment, after having published final list at dated 08.09.2016, it found that I have appointed as Jr. Asst (My name find at serial number 07 in final list), considered the category of Non-HK Region. Immediately I enquired regarding my appointment by considering Non-HK Region instead of HK Region with your concerned authority. In response to the same u got replied that the entire process of appointment is taken place as per the Hon'ble Governor, it is also further stated that candidate though they applied on the bases of HK- Region, we proceed on the basis his/her merit under the category of Non-HK Region and if at the inception he/she finds eligibility under the Non-HK, they will be considered and therein appointment will continued in the said category only and regarding HK there will be opt to give an opportunity to next candidature who will not fit under the category of Non-HK Region. As such I with that understanding appointed as Jr. Asst. in O & M Division, GESCOM, Gangavathi. But for the reason stated above though I belongs to HK Region, I keep my self-convenience and proceeded as per the order of appointment. The time now arise for the consideration of promotion I feel and honestly believe that I would be promoted by taken into consideration of my all the documents which were applied, which found myself as candidature of HK Region but without considering me as candidate of HK Region. The promotion list has been preparing and the seniority list has already published/issued. Wherein I find that I was again placed as Non-HK Region and separate list of seniority was prepared Therefore, the fact remains undisputed that I belongs to HK Region and I sought appointment under the same region. But the reasons best known to you, I was again & again placing under the Non-HK region. As such, I hereby requesting to get my senority to be rectified by pursuing my documents placed at the time of application for appointment and requested to place my seniority under HK. Region reserve. 24 In this connection hereby enclosed an order of Hon'ble High Court of Karnataka dated 22.08.2023. As per the direction of order the HK region aspirants who appointed for the post of Asst Engineer in Non-Hk region quota, the appointing authority should call an optional letter for those who selected HK region aspirants in Non-HK region quota. The same order was already implemented in the KPTCL board vide order No. KPTCL/B16/21723/2021-22 Dated 30.12.2023. Hence, please call for an optional letter for who selected to the post of Jr Asst of HK region aspirants in Non-HK region quota. As I have already placed my representation or request dated 16.08.2023. But till this day I did not get any reply with explanation. So now I by this representation with above detailed information and seeking to consider and rectify the list of seniority once again under the category of HK Region. Thanking you, Yours faithfully Sd/- (Sri Kallappa H.Gonnagar) Jr. Asst, O & M Division, GESCOM, Gangavathi.= (Emphasis added) With his rightful claim ignored and promotions extended to the juniors in merit, the petitioner seeks intervention of this Court in the subject petition. 25 9. It is trite that a candidate belonging to a reserved category 3 whether SC / ST or otherwise, does not forfeit his reservation merely by securing a place in the general merit list. Such a candidate continues to retain his right and benefits associated with their constitutional status. The same analogy must apply to the case at hand, a domicile based reservation under Article 371J does not evaporate merely because the candidate has outshone others in merit. Pursuant to the amendment to the Constitution of India, by bringing in Article 371J, the Government issued an order to give effect to the said Article on 06-07-2013. Paragraph-6 of the said order defines domicile. Domicile to mean a person from local region for the purpose of direct recruitment or promotion. Therefore, what the petitioner claims in terms of his right under the Constitution of India and the Government order of 2013 is, reservation, based on domicile. It is admitted fact that the petitioner belongs to the said area and further admitted fact that the petitioner had claimed reservation belonging to the said area. 26 10. Therefore, domicile status of the petitioner cannot be taken away by a stroke of pen on the respondents placing the petitioner in the list of non-Hyderabad-Karnataka Region at the time of final select list. The status once conferred and accepted cannot be nullified by a clerical misplacement in the wrong regional list. As a matter of fact, no amount of administrative delay or oversight can subvert the sanctity of a constitutional guarantee. I therefore answer the aforesaid issue holding that the domicile status of the petitioner cannot be effaced merely because the petitioner is placed in a list of non-Hyderabad-Karnataka candidates as the domicile is a legal status, not a administrative convenience. It is acquired by birth not by choice. As a result of which, the petitioner would not loose his right to be promoted to the next higher cadre, from out of the Hyderabad-Karnataka list or the Kalyana-Karnataka list as it is called. The statutory right to promotion cannot be stifled by administrative callousness. 27 11. All the learned counsels for the respondents in unison have projected delay to be the primary ground to decline entertainment of the petition. It is their submission that the petitioner has kept quiet for close to four years despite him being fully aware of the fact that he belongs to Hyderabad-Karnataka region and was appointed from out of the list of non-Hyderabad- Karnataka candidates. The petitioner ought to have immediately objected to the said listing, by taking appropriate course in law. The petitioner has not so done. While it may be in a given case that delay in challenge to a seniority list, would become fatal but in the subject case, it does not, for the reason that the petitioner9s promotion after his appointment did come about only in 2023, he has immediately represented. The representations are ignored. It is therefore, the petitioner is before this Court. The right that the petitioner is projecting or wanting to exercise is a constitutional right under Article 371J. The said right cannot be marred or marooned in thin air, on account of delay of the petitioner approaching this Court, for a palpable folly, on the part of the official respondents. Delay in the peculiar facts of this case would not decline entertainment of the petition, as delay cannot take 28 away the constitutional right of the petitioner. Except the projection of delay, there is no other projection either by the Corporation or by the other two respondents who are represented. Both of them have based their vehement submissions only on delay. 12. The incidental issue that surrounds delay is also projected by the respondents, it is the issue of estoppel. The said submission is noted only to be rejected, as it is trite law that promotion is a statutory right. It may not be a fundamental right, but undoubtedly a statutory right. In the case at hand, the petitioner has his constitutional right under Article 371J. It is trite that there can be no estoppel against a statute or statutory right. The petitioner has a constitutional right. Therefore, there cannot be a estoppel against the fountain head of statutes 3 the Constitution of India. The delay has been adequately explained and the explanation is found to be satisfactory. On all the aforesaid reasons, the petition deserves to succeed. 29 13. It is further trite that if a person is entitled to reservation for being a candidate belonging to SC or ST and he secures high marks, he is placed in the general merit category list. That would not mean that the said person who had claimed reservation as a person belonging to reserved category, would lose his reservation merely because he has secured high rank and gets into the bracket of general merit category. Reservation to him as belonging to a reserved category candidate is available and available for all times to come in accordance with law. If the very concept is para- phrased to the issue in the case at hand, what would unmistakably emerge is that, the petitioner finding himself high in merit, being placed in a non-Hyderabad-Karnataka Region select list, would not mean that he would lose the reservation under Article 371J, which is on domicile. In that light, the petition deserves to succeed. 14. For the aforesaid reasons, the following: O R D E R (i) Writ Petition is allowed. 30 (ii) Mandamus issues to respondents 1 to 3 to include the name of the petitioner at the appropriate place in the Hyderabad-Karnataka Region final select list dated 02.08.2023, and grant him all consequential benefits flowing thereto. (iii) If any person, apart from respondents 4 to 9, is to be dislodged by bringing in the petitioner in the seniority list of Hyderabad-Karnataka Region at the appropriate place, he shall be heard in the matter. (iv) Time for compliance is 2 months from the date of receipt of a copy of this order. Sd/- (M. NAGAPRASANNA) JUDGE nvj CT:MJ