Central Administrative Tribunal - Bangalore
H N Gopalakrishna vs D/O Personnel & Training on 20 December, 2019
1 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION No.170/00961/2019
WITH
ORIGINAL APPLICATION Nos.170/00437, 00438, 00439, 00440,
00441, 00448, 00449, 00962, 00963, 00964 of 2019
DATED THIS THE 20th DAY OF DECEMBER, 2019
HON'BLE DR.K.B.SURESH, MEMBER (J)
HON'BLE SHRI C V SANKAR, MEMBER (A)
OA No.961/2019
Dr.N.Shivashankara, IAS,
S/o Late Ninge Gowda,
Aged about 47 years,
Earlier Working as Chief Executive Officer,
Karnataka Industrial Areas,
Development Board, Kanija Bhavan,
(Now awaiting posting after transfer)
Race Course Road,
Bengaluru-560001.
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, New Delhi-110 001.
2. State of Karnataka,
By its Chief Secretary,
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
2 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Union Public Service Commission,
By its Secretary, Dholpur House,
New Delhi-110 069.
5. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
6. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
3 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
8. Sushilamma N
D/o Narayanappa M,
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
9. Praveen P. Bagewadi,
S/o Pandit,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201.
10. Seema Naik B
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068.
11. Shivakumar H.R
S/o H.C. Ramaiah,
4 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022.
12. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram
Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
13. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Posted as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at No.880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13)
5 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
OA No.437/2019
Mr.H.Basavarajendra, IAS,
S/o B.Honnappa,
Aged about 52 years,
Presently working as CEO,
Zilla Panchayat, Davangere.
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, New Delhi-110 001.
2. State of Karnataka,
By its Chief Secretary,
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
6 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
5. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belong to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
7. Sushilamma N
D/o Narayanappa M,
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
8. Praveen P. Bagewadi,
S/o Pandit,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
7 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201
9. Seema Naik B
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068
10. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022
11. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram, Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
8 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
12. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Posted as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at 880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12)
OA No.438/2019
Mr.Shivanand Kapashi, IAS,
S/o Bhimappa Kapashi,
Aged about 51 years,
Working as Registrar,
Rajiv Gandhi University of Health
Sciences, Bangalore & residing
at No.12, Shivakrupa, Ground Floor,
8th Main, I Cross, Ganesh Block,
Mahalakshmi Layout, Bangalore.
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, New Delhi-110 001.
2. State of Karnataka,
By its Chief Secretary,
9 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
5. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belong to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
10 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
7. Sushilamma N
D/o Narayanappa M,
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
8. Praveen P. Bagewadi,
S/o Pandit,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201
9. Seema Naik B
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068
10. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years,
11 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022
11. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram
Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
12. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Posted as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at 880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12)
12 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
OA No.439/2019
Mrs. Kavitha S. Mannikeri, IAS,
D/o S.K. Mannikeri,
Aged about 46 years,
Working as Chief Executive
Officer, Zilla Panchayat,
Yadgir, Gulbarga District
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, New Delhi-110 001.
2. State of Karnataka,
By its Chief Secretary,
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
13 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
5. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
7. Sushilamma N
D/o Narayanappa M,
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
8. Praveen P. Bagewadi,
S/o Pandit,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
14 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201
9. Seema Naik B
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068
10. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022
11. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram, Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
15 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
12. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at 880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12)
OA No.440/2019
Dr. H.N. Gopalakrishna IAS,
S/o late Narayana Gowda,
Aged about 46 years,
Working as Managing Director,
CESC, Mysore and Director
Administration & Human Resources,
KPTCL, Bangalore and residing at
No. 253, Girinivas, 15th 'D' Cross,
Mahalakshmipuram,
Bengaluru 560 086
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, New Delhi-110 001.
16 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
2. State of Karnataka,
By its Chief Secretary,
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
5. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
17 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
7. Sushilamma N
D/o Narayanappa M,
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
8. Praveen P. Bagewadi,
S/o Pandit,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201
9. Seema Naik B
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068
18 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
10. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022
11. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram, Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
12. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at 880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12)
19 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
OA No.441/2019
Mr. G.C. Vrushabendra Murthy, IAS,
S/o late G.N. Chandrashekaraiah,
Aged about 59 years,
Presently working as Director, MSME,
Department of Industries & Commerce,
Kanija Bhavan, Bangalore & r/a
No. 6/8, Namma Mane, 1st Main Road,
Konenaagrahara, HAL,
Bengaluru 560 017
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, New Delhi-110 001.
2. State of Karnataka,
By its Chief Secretary,
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
20 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
5. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belong to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
7. Sushilamma N
D/o Narayanappa M,
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
8. Praveen P. Bagewadi,
S/o Pandit,
21 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201
9. Seema Naik B
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068
10. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022
11. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram
Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
22 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
12. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Posted as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at 880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12)
OA No.448/2019
Mr. Karee Gowda, IAS,
S/o Sidde Gowda,
Aged about 48 years,
Working as Deputy Commissioner,
Bangalore Rural District,
Bangalore & r/a No. 1144, 64th
Cross, 18th B Mai, Behind
National Public School,
Rajajinagar, Bengaluru 560 010
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public
23 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Grievances & Pensions,
North Block, New Delhi-110 001.
2. State of Karnataka,
By its Chief Secretary,
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
5. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
24 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belong to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
7. Sushilamma N
D/o Narayanappa M,
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
8. Praveen P. Bagewadi,
S/o Pandit,Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201
9. Seema Naik B
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068
25 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
10. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022
11. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram
Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
12. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Posted as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at 880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
26 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12)
OA No.449/2019
Shri P. Vasantha Kumar, IAS,
S/o Late Puttamadaiah,
Aged about 46 years,
Working as Commissioner,
Backward Classes Welfare Department,
Devaraj Urs Bhavan, Vasanth Nagar,
Bangalore 560 001
...Applicant
(By Advocate Shri M.S. Bhagwat)
Vs.
1. Union of India,
Represented by its Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, Central Secretariat,
Sardar Patel Bhavan, Parliament Street,
Sansad Marg, New Delhi-110 001.
2. The State of Karnataka,
Represented by its Chief Secretary,
Vidhana Soudha, Bangalore-560 001.
3. The State of Karnataka,
Represented by its Principal Secretary,
Department of Personnel and Administrative Reforms,
Vidhana Soudha, Bangalore 560 001
4. Karnataka Public Service Commission,
Represented by its Secretary, Udyog Soudha,
Bangalore-560 001.
5. Ramappa Hatti,
S/o Irappa,
Aged about 59 years, posted as
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
27 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
6. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begam Walikar
D/o G M Olekar,
Aged about 45 years, selected as
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belong to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
8. Sushilamma N
D/o Narayanappa M,
Aged about 45 years, posted as
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
28 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
9. Praveen P. Bagewadi,
S/o Pandit,
Aged about 45 years, posted as
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201
10. Seema Naik B
Aged about 45 years, Selected
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM IInd Stage,
Bengaluru- 560 068
11. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years, posted as
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022
12. Smt. B.V. Roopashree,
D/o Late B. Venkatramana,
W/o B. Jayaram
29 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Aged about 46 years,
Selected as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
13. Manjunatha swamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Posted as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at 880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2&3,
Shri K.M. Prakash, Counsel for Respondent No. 4 and
Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13)
OA No.962/2019
Mrs.Meena Nagaraj, IAS,
W/o Arjuna Reddy,
Aged about 45 years,
Working as Director of Treasuries,
V.V.Towers, Dr.Ambedkar Veedhi,
Bengaluru-560 001.
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
30 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, New Delhi-110 001.
2. State of Karnataka,
By its Chief Secretary,
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Union Public Service Commission,
By its Secretary, Dholpur House,
New Delhi-110 069.
5. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
6. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
31 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch previously
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
8. Sushilamma N
D/o Narayanappa M,
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
9. Praveen P. Bagewadi,
S/o Pandit,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201.
10. Seema Naik B
Aged about 45 years,
32 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068
11. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022.
12. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram
Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
13. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Posted as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
33 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Commissioner, Now reported for duty &
Waiting for Posting order and R/at No.880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13)
OA No.963/2019
R S Peddappaiah, IAS,
S/o Sanjeevarayappa,
Aged about 57 years,
Working as Commissioner,
Social Welfare Department,
M.S.Building,
Bengaluru-560 001
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, New Delhi-110 001.
2. State of Karnataka,
By its Chief Secretary,
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Union Public Service Commission,
By its Secretary, Dholpur House,
New Delhi-110 069.
34 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
5. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
6. Veerabhadra Hanchinal,
S/o Bhimappa,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch previously
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
8. Sushilamma N
D/o Narayanappa M,
35 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
9. Praveen P. Bagewadi,
S/o Pandit,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as KAS (Junior Scale)
As Deputy Commissioner,
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201.
10. Seema Naik B
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068.
11. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
36 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022.
12. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram
Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
13. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Posted as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at No.880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13)
OA No.964/2019
Akram Pasha, IAS,
S/o late Sri Nanne Jan,
Aged about 49 years,
Earlier Working as Deputy Commissioner,
Hassan District,
37 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Hassan-573 201
(Now on order of transfer and awaiting posting)
...Applicant
(By Advocate Shri K. Putte Gowda)
Vs.
1. Union of India,
By its Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public
Grievances & Pensions,
North Block, New Delhi-110 001.
2. State of Karnataka,
By its Chief Secretary,
Vidhana Soudha, Dr.Ambedkar
Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission,
By its Secretary, Udyoga Soudha,
Bangalore-560 001.
4. Union Public Service Commission,
By its Secretary, Dholpur House,
New Delhi-110 069.
5. Ramappa Hatti,
S/o Irappa,
Aged about 58 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State
Accounts City Corporation Belagavi,
Now relieved and posted as
Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 714,
Shivasampad, Pantanagar,
Pant Balekundri,
Belagavi 591 103.
6. Veerabhadra Hanchinal,
S/o Bhimappa,
38 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No. 40/1,
Flat No.201, 2nd floor, 30th Cross,
7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begum Walikar
D/o G M Olekar,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belong to 1998 batch previously
Working as Deputy Commissioner,
Commercial Taxes, Hubli and
R/a No. 43/D, KCC Bank Layout
Near Sahasrarjun Circle,
Navanagar, Hubli 580 025
8. Sushilamma N
D/o Narayanappa M,
Aged about 45 years,
Group-A, Gazetted Probationer,
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Joint Controller of State Accounts,
KUWSSB, Now relieved and posted as Assistant
Commissioner, Now reported for duty & waiting for
Posting order and R/a No.1872, 2 A Main
7th Cross, Judicial Layout, Yelahanka
Bengaluru- 560 065.
9. Praveen P. Bagewadi,
S/o Pandit,
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as KAS (Junior Scale)
As Deputy Commissioner,
39 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Revenue City Corporation, Belagavi,
Now relieved and posted as Assistant
Commissioner, Now reported for duty
& waiting for posting order and
R/a Dr. Ambedkar Nagar At P.O: Chikkodi,
District: Belgaum 591 201.
10. Seema Naik B
Aged about 45 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now
Working as Deputy Commissioner,
Commercial Taxes, Koramangala, Bengaluru
And R/a No. 3, 37th Main, BTM 2nd Stage,
Bengaluru- 560 068.
11. Shivakumar H.R
S/o H.C. Ramaiah,
Aged about 52 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Deputy Commissioner,
Commercial Taxes, Now relieved and
Posted as Assistant Commissioner,
Now reported for duty & waiting for
Posting order and R/a No.705, 'A' Block,
RNS Shantinivas, Yeshwantpur,
Bengaluru- 560 022.
12. Smt. B.V. Roopashree,
D/o Late B. Venkatramanna,
W/o B. Jayaram
Aged about 46 years,
Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and now working
As Financial Controller, Karnataka Rural
Road Development Agency, 3rd floor,
Grameenaabhirudhi Bhavan, Anand Rao Circle,
Bangalore 560 009 and R/at No.661,
8th Cross, 60 feet road, BEML 4th Stage
Rajarajeshwarinagar, Bangalore 560 098.
40 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
13. Manjunathaswamy G.N
S/o N. Narasimhaiah,
Aged about 53 years,
Posted as Group-A, Gazetted Probationer
Assistant Commissioner, Junior Scale
Belonged to 1998 batch and previously
Working as Chief Financial Officer,
National Health Mission, Bangalore
Now relieved and posted as Assistant
Commissioner, Now reported for duty &
Waiting for Posting order and R/at No.880,
22nd cross, 7th Sector, 6th Main, HSR Layout
Bangalore 560 002. ...Respondents
(By Shri Dhyan Chinnappa, Additional Advocate General,
Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2,
Shri K.M. Prakash, Counsel for Respondent No. 3 and
Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13)
ORDER
(HON'BLE DR. K.B. SURESH, MEMBER (J) Pride and prejudice is the crux of the issue; laments the applicant. Casteism and nepotism is the basis of this issue, finds the Hon'ble High Court. We were following the same method from 1975, asserts the KPSC.
2. As we tried to understand the issue involved in this 21 year old litigation, we noted the preamble portion of the order of the second judgment of the Hon'ble High Court of Karnataka "A classic case of white coloured, educated, highly placed men holding responsible posts in the administration, betraying the confidence reposed in them by the public of Karnataka is the subject matter of these proceedings. Behind the scene, how fraud, illegality, irregularity, 41 OA No. 170/00961/2019 & Ors/CAT/BANGALORE deceit, is practiced to manipulate the results of the examination, and some of the selected candidates even before they are born in the cadre, are suffering from the vice of corruption, nepotism, casteism. The facts set out herein will unravel this sordid state of affairs in the Karnataka Public Service Commission, a premier, constitutional authority, constituted to recruit educated people to Civil Services, which is the subject matter of this public interest litigation."
3. This led us to most anxiously examine the number of people who were involved as it appeared that the illegality and the fraud practiced on the public wereon such a mammoth scale. A notification was issued by the State Government on 04.02.1998 to select 415 candidates for GroupA and Group Bposts. The KPSC received 85,598 applications.
On scrutiny 79,130 candidates were found eligible for preliminary examination. Therefore we had looked at and found that after consideration of the issue in several foras as well as in a detailed Court monitored investigation firstly through the aegis of Hon'bleJustice Ajit Gunjal who would have monitored the investigation every other week but since as a sitting judge he had difficulty in managing it Hon'bleJustice Mohammed Anwar was deputed to look into it and monitor the investigation on an alternate day basis.
THE FINDINGS OFTHIS INVESTIGATION.
42 OA No. 170/00961/2019 & Ors/CAT/BANGALOREAn allegation arose when 3 members of a same family obtained the topmost ranks in the examination, wrote the examination roughly equivalently on the same subjects, even though received different ranks in the examination, were held to be on the basis of the alleged involvement of Shri Monappa, the then Secretary of the Public Service Commission and Prof Shivanna who was acknowledgebly known to the candidates and along with them two other persons from the candidates Smt Asha Parveen and Smt Salma Firdosewere also found to have indulged in unnecessary activities relating to their caste certificates.
Since they are facing criminal trial, we do not want to pre-judge this issue. So let it lie as it is. But out of the 85,000 odd applicants, if, only 5 or 6 candidates were found, after a detailed investigation, to have indulged in some manipulation, the applicant would say that it only points out to one thing that the selection was probably basically free from taint.
4. Apparently when for the first time the matter had assumed a genesis before the Hon'ble Karnataka Administrative Tribunal, we find from the records that the Karnataka Public ServiceCommission was extremely reluctant to produce the document directed to be produced.
Now it is maintained by the same KPSC that the records of 1999 and 2004 are not available as, by efflux of time, they had destroyed everything.
43 OA No. 170/00961/2019 & Ors/CAT/BANGALORE5. We were taken to the summary of submissions made by learned advocate Shri Nargund in the second High Court case. The crux of the argument of the learned counsel was that somehow or other some castes had obtained an unmerited gain through the selections. It was therefore looked into and the Hon'ble High Court in the earlier instance directed that since by then the Karnataka AdministrativeTribunal had come into existence only they will have jurisdiction to decide the matter as all parties would come under Section 15 of the AdministrativeTribunals Act. The Hon'bleHigh Court having so directed, the issue was taken up. But then the KPSC adopted a belligerent attitude and refused to produce the records sought by the Hon'ble Karnataka Administrative Tribunal. Therefore, the Tribunal had no other way other than to declare that the non-
production of documents would lead to an adverse presumption taken against the KPSC. Therefore the KarnatakaAdministrativeTribunal held that "let there be a total re-evaluation."This order was challenged by the KPSC before the Hon'ble High Court and others also joined the fray at this point of time.The Hon'ble High Courtof Karnataka in the first instance had adopted the pattern followed by the UPSC in this matter and directed scaling down and moderation so that by applying the universality principle the individual quirks and personality differences of various examiners can be harmonized to a very large extent. This is particularly important asan allegation was freely made, even 44 OA No. 170/00961/2019 & Ors/CAT/BANGALORE though not proved at all, that persons belonging to one particular caste were favoured by the examiners and grandly accommodated. Therefore the Hon'ble High Courthad gone into this matter most extensively and found that in certain categories there cannot be any misdemeanor at all. In one portion,particularly relating to English and History, it found that probably the commission may have committed a mistake and directed scaling down and moderation in accordance with the principle followed by the UPSC.
6. We have quoted the judgment elsewhere so we donot want to explain the elements of it right now.
7. The applicant would say that following this decision and the consequent acts of the KPSC, which according to them is in complete compliance with the orders of the Hon'ble High Courtin the first instance, the applicants were selected and appointed in theyear 2006,i.e., roughly after 8 years of their selection. Apparently aggrieved by the order of the Hon'ble High Court, the unsuccessful candidate Dr. K Rameshwarappa and others preferred a Special LeavePetition before the Hon'ble Supreme Court. But the Hon'ble Supreme Court in Civil Appeal Number 6172-6222, 6313/2005 and 6223-6312/2005, was heard who however held that they are satisfied and no interference is called for as the Hon'ble High Court, in the first instance, had taken care to safeguard theinterest of all concerned.
45 OA No. 170/00961/2019 & Ors/CAT/BANGALORE8. Therefore the effect of the Hon'ble High Courtjudgment, in the event of dismissal of the appeal by the Hon'ble Supreme Court was that the first order of the Hon'ble High Courtof Karnataka became merged and became part of a single judgment of the Hon'ble Supreme Court.
9. Subsequently, in compliance with the orders of the Hon'ble High Court, the KPSC conducted evaluation of main examination and announced the new eligibility list of 1932 candidates.
10. Thereafter since there was no interim order from the Karnataka Administrative Tribunal, the government proceeded to issue appointment letters to 383 selected candidates.
11. It comes on record that Forensic Science Laboratory, Bengaluru as well as Truth Labs of Hyderabad were brought into the wagon to find out the truth. At this point of time it is pertinent to note the details of investigation conducted bythe CID and from among the candidates Smt Asha Parveen and Smt Salma Firdose is found to have committed an infraction in relation to their documents enough to attract Section 465 of the Code. Therefore, only 5 people out of 85,000 people have been in the lookout for having committed an infraction. Apparently, 3 matrixes were pointed out by the CID on the orders of the Hon'ble High Court of Karnataka:
46 OA No. 170/00961/2019 & Ors/CAT/BANGALORE1. Violation of ratio policy: as observed in the KAT court itself classification is done in accordance with Government Order dated 20.06.1995.
2. Category manipulation: the candidates applied under reserved category have scored higher marks than general category in the examination and the interview and selected under general merit as observed in the report itself.
3. Improper acceptance of applications inspite of grave discrepancy and violation of recruitment rules.
12. Therefore the issue in the crux appears to be reservation and the manipulation of positioning. The applicant points out to Paragraph 81 of the second judgment of the Hon'ble High Court wherein the learned senior counsel Shri M.B.Nargund's arguments were summarized by the Court. Since Shri Nargund would say that moderation and revaluation was done only to the extent of 10% of the answer scripts and those answer scripts which weresubjected to revaluation beyond the 10% as directed by the Hon'ble High Court in the first order has not been taken into effect. In answer ShriP.S. Rajagopal the learned senior counsel had argued that the procedure followed is from 1975 onwards.
He would say that they were only called upon to redo the exercise only in respect of the 10% of the answer scripts. And therefore no fault would lie against them. In Paragraph 84 Shri Subramanya Jois the learned senior counsel submitted that as in the case of Dr. M.S Mudhol 47 OA No. 170/00961/2019 & Ors/CAT/BANGALORE and another vs S.D. Halegkar reported in (1993) 3 SCC 591 "the selections made more than 12 years back cannot be unsettled."
He also points out that the writ petitioners are applicants before the KAT also where they were seeking the very same relief. Therefore, he would say that they are estopped by res judicata. He pointed out that "no allegations were made against any of the successful candidates that they have committed any infraction. Therefore he challenged the very basis of the Writ Petition. In Paragraph 85 while noting the arguments of Shri K M Prakash the learned counsel had submitted that the KPSC has conducted the selection in 1998 as per the rules framed by the government.
13. Shri Prakash also submitted that "the material on record clearly demonstrates that this public interest litigation is filed targeting a particular individual and a particular community and therefore it ceases to be a public interest litigation. He further submitted that the dispute in question being purely a service matter, as held by the apex court in several judgments, no public interestlitigation is maintainable." In Paragraph 87, the Hon'ble High Court took note of the arguments of Shri S.V.Narasimhan the learned counsel who submitted that in terms of judgment of the Hon'ble Apex Court in Ashok Kumar Pandey Vs. State of West Bengal reported in (2004) 3 SCC 349 and in the case of Hari Bansh Lal vs Sahodar Prasad Mahto and othersreported in (2010 ) 9 SCC 655 and in the case of 48 OA No. 170/00961/2019 & Ors/CAT/BANGALORE State of Punjab vs Salil Sabhlok and others reported in (2013) 5 SCC 1,"a WritPetition for vindicating personal rights cannot lie as a public interest litigation." He would also say relying on Printers (Mysore) Ltd. vs M.A. Rasheed and othersreported in (2004) 4 SCC 460 that "a writ petition filed 6 years after the appointment orders is liable to be dismissed on the ground of delay and latches on thepart of the petitioners in approaching the court."
14. Shri Narasimhan also relied on thejudgments in the case of Anirudhsinhji Karansinhji Jadeja and another Vs. State of Gujaratreported in AIR 1995 SC 2390 and the case of Dipak Babaria and another Vs. State of Gujarat reported in(2014) 3 SCC 502. Vide Paragraph 94 the Hon'ble High Court examined the arguments of Shri Srikanth,learned counsel appearing for the successful candidates. He relied on thejudgment of the Hon'ble Apex Court in Joginder Pal and Others Vs. State of Punjab and Others reported in (2014) 6 SCC 644 which urged that "the candidates who are meritorious are to be segregated from the tainted candidates and action should be taken only against tainted candidates."He pointed out that there is no taint even alleged against the successful candidates.
15. The learned counsel points out a dilemma in this "who are the tainted candidates." Apparently these are1) Dr. Rameshwarappa, 2) Shri B S Nagaraj 3) Smt. B S Triveni 4) Smt. B.S. Hemalatha 5) Smt. 49 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Asha Parveen and 6) Smt. Salma Firdose. After 21 years of investigation, only these 5 were found to be tainted by irregularities.
There is no allegation against anyone else and therefore the counsel contends that without even an allegation against them how can they be punished.
16. Coming back to Shri Srikanth, he relies on the judgment of the Hon'ble Apex Court in Ashok Kumar Pandey Vs. State of West Bengal reported in (2004) 3 SCC 349 to contend that service litigation is not a public interest litigation but a private interest litigation and it should be thrown out at the initial stage itself. He relies on the judgment of the Hon'ble Apex Court in M.V. Thimmaiah and Others Vs. Union Public Service Commission and Othersreported in (2008) 2 SCC 119 and submitted that malafides alleged are not established.
Therefore no action can be taken on that basis.
17. Relating to the violation of ratio in deciding which all communities will have an opportunity of being tested on merits in Paragraph 99 of the said judgment quoting from Shri M B Nargund,learned senior counsel, he would say that for all the three years the candidates from reserved list find a place in the unreserved list at the stage of written examination because of their merit and personality test which is illegal.But Shri P. S. Rajagopal explains this as some of the reserved list candidates did not produce adequate documentation so they will 50 OA No. 170/00961/2019 & Ors/CAT/BANGALORE only be treated as unreservedcandidates. Shri P.S. Rajagopal explains this by saying that the 521 candidates which is mentioned by Shri Nargund belongs to the general merit category by virtue of their community, the rest of the candidates in the general meritfor consideration came from the meritorious reservedcategory which under law, because of their merit, even though theybelong to backward category, will be treated as meritorious candidates and in the general merit list.
18. In Paragraph 103 of the said judgment the Hon'ble High Court examined the submission ofShri K MPrakash the learned counselwho submits that the nomenclature 'General Merit' excludes caste. Under the law, all persons who are meritorious will be considered as General Merit. He would say that there is no law which provides that once a person is treated as a reserved category he should be treated as reserved category throughout the selection process and therefore there is no substance in the contention of the petitioner in the Writ Petition.
19. Therefore the learned counsel for the applicant maintains that this is not about any infractioncommitted by any of the applicants but about the pre-eminence of some community persons who were till then enjoying maximum benefits under the competitive process found at this instance and succeeding years that backward classcandidates are also catching up. The anger 51 OA No. 170/00961/2019 & Ors/CAT/BANGALORE and ire felt on this alleged usurpation bybackward caste candidates is the reason for all this litigation. He would say that in the past some dominant communities in Karnataka used to enjoy most of the competitive positions but then, of late, backward caste candidates are also catching up.
20. This matter commenced in the year 1998. Crossed over to 1999 and then 2004 and still, even after 21 years, litigation is going on. It is submitted at the bar by the applicants that it is not the party who are fighting this battle but shadowy figures hiding behind.
21. Therefore with some anxiety we had gone very carefully through both thejudgments of the Hon'ble High Court which in both cases had been approved by the Hon'ble Supreme Court of India with various stipulations.
22. It is submitted at the bar that Paragraph 161 of the second judgment of Hon'ble High Court of Karnataka is very crucial in this respect to understand the real matrix of the issue.We quote: "Public employment is a scarce commodity in economic terms.
As the supply is scarce, demand is chasing that commodity. This is reality of life. The concept of 'equality 52 OA No. 170/00961/2019 & Ors/CAT/BANGALORE of opportunity' in public employment concerns an individual, whether that individual belongs to general category or backward class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class under Article 16 (4) has to be balanced. Backward classes seek justice.
General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. Article 16(4) has to be construed in the light of Article 335 of the Constitution.
Inadequacy in representation and backwardness of Scheduled Caste and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. Reservation is necessary for transcending caste and not for perpetuating it.
Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16(1) is individual-
specific whereas reservation in Article 16(4) and Article 16(4A) is enabling. reservation under Article 16(4) is intended merely to 53 OA No. 170/00961/2019 & Ors/CAT/BANGALORE give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of backward classes and claims of other employees as well as the requirement of efficiency of administration. Article 16(4) speaks of adequate representation, but not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant. The proportion of the population of a caste is a consideration to be taken note of in determining the percentage of representation to be given to that caste in the 50% posts reserved for SC and ST and other Backward Classes. It has no relevance in determining the percentage of representation to be given in the total posts to be filled up."
23. In Paragraph 164 the Hon'ble High Court would say in the case of Union of India vs Ramesh Ram and others reported in (2010) 7 SCC 234 the Constitution Bench of the Apex Court dealing with the question of migration of meritorious reserved candidates from general merit to the reserved category held as under:
"iv) The reserved category candidates "belonging to OBC, SC/ST categories" who are selected on merit and placed in the list of General/Unreserved category candidates can 54 OA No. 170/00961/2019 & Ors/CAT/BANGALORE choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16 (2) is not inconsistent with Rule 16 (1) or Articles 14, 16 (4) and 335 of the Constitution."
24. The Hon'ble High Court further explained this position in Paragraph 166 which we quote:
"General category candidates are not entitled to fill the reserved posts. Reserved category candidates are entitled to compete for the general category posts. When persons belonging to reserved category get selected in open competition on the basis of their merit, they are not to be counted in the reserved category against the reserved category quota. He can be considered for appointment only against General category post and the quota of the particular reserved category cannot be reduced by treating his appointment as one made against the post earmarked for the reserved category to which he belongs. It is open to the authorities to fill the posts meant for reserved category candidates from amongst the persons in such categories after excluding those who have found their place in general merit. The fact that considerable number of members of backward class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class."
25. The learned counsel points out to Paragraph 170 of the Hon'ble High Court second judgment which we quote:
55 OA No. 170/00961/2019 & Ors/CAT/BANGALORE"From the material on record it is clear that, none of the candidates who took part in the selection process are in any way responsible for KPSC following the aforesaid procedure. Even the candidates belonging to unreserved category did not insist on any claim by virtue of the Government Order at the stage of written examination or at the stage of personality test. It is not as if all the persons who have taken the written examination and attended the personality test are not eligible for being selected for the posts to which they are selected. It is submitted on behalf of the KPSC that, hardly a handful of candidates might have migrated from the unreserved category to the reserved category and those candidates have no role to play in this regard.
26. The learned counselpoints out thatthe random selection and scaling down as per the first judgment of the Hon'ble High Court and the random selection madeon the basis of the second judgment of the Hon'ble High Court are fundamentally different.
56 OA No. 170/00961/2019 & Ors/CAT/BANGALORE27. Quoting from Paragraph 194,Shri B. A.Harish Gowda who was the secretary of the KPSC at the relevant point of time would say:
i) Random selection of answer scripts and review/evaluation/moderation;
ii) Calculation of average variation; and
iii) Applying the average variation to the answer scripts valued by the same examiner.
28. The Hon'ble High Court in Paragraph269 reiterated the irregularities:
a. Mutual copying by four candidates, namely Shri K. Rameshwarappa and three of his close relatives by obtaining adjacent seats in the same examination room. b. Substitution of some answer books/pages of answer books in case of these candidates.
c. Awarding of unduly high marks by First Examiner. d. Unduly high increase in marks by Head Examiner. e. Undue and abnormal increase in marks by Chief Examiner at the time of moderation in General Studies and History papers in respect of these four and some other candidates. f. Moderation by Prof. K.S. Shivanna in respect of General Studies and History Papers written in English medium, although he was an examiner for Kannada Medium only.
g. Picking out of three or four answer scripts of same candidates under random mode ratio, which shows that the secrecy of code numbers was compromised.57 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
29. Then it goes on to say that the irregularities committed in regard to main examination were much larger and widespread than those identified by the sub-committee which it appears is only a proverbial tip of the iceberg. But the learned counsel wonders whether on basis of imagination and surmise can anybody be penalized?
30. In relation to the allegation of tampering with marks, the Hon'ble High Court in its second judgment would say:
Findings:
The petitioners have not quoted any particular instance but the allegations are general in nature. The allegation seems to be unfounded, as this is not based on any reliable facts. In fact CID has procured all the answer scripts of 1998 and 2004 examination and perused them. Answer scripts of 1999 examination are nor preserved by the Commission since they are destroyed as per their Rules.
31. Therefore thelearned counsel wonders that, if thereis not even a specific allegation against any of them, how can they be penalized?
Therefore, we stipulated as to what he has to say regarding thevariation in marks. He answers that given the pressure on concerned examiners: the jailing of Shri Monappa, Shri H N Krishna and the criminal cases against othershave created a situation that even when a candidate is 58 OA No. 170/00961/2019 & Ors/CAT/BANGALORE eligible to get 10 marks in the revaluation no examiner will dare to give more than 5 marks. We are not sure whether this is what has actually happened but then it is a possibility to be looked into. Thereafter the Hon'ble High Courtanswers a question put up by the learned counsel for the successful candidates. The applicant exposes a grievance that the webhost list in pursuance of the direction of the Hon'ble Court dated 11.11.2014 was made final and thus had taken away the liberty of judicial review which a Government servant could have otherwise got.
But then in direction No.6, it is stipulated that all other disputes which are personal in character are relegated to be decided by KAT. But they would say that as candidates who would be like the applicant, no right of judicial review is given meaning thereby that the methodology of interpretation of direction No.6 has now to be undertaken.
At this point of time the learned counsel for the applicant would say that that is the reason why they had filed these applications.
32. By common consent, all these 11 matters were taken up together and heard. On 22.10.2019, we had also directed all the parties to file written argument notes with reference to each of the candidates as ordered by the Hon'ble High Court which was later upheld by the Hon'ble Supreme Court related to settlement of individual grievances 59 OA No. 170/00961/2019 & Ors/CAT/BANGALORE in relation to the issue at hand. We have also directed the Karnataka Public Service Commission to file the reply in reference to each candidate. Shri Narayan Bhat, learned counsel for the impleaded respondents is also allowed to file written argument notes in reference to each candidates and thereafter the matter was posted for disposal on 31.10.2019 . But apparently it appears that without alluding to the full order passed on 22.10.2019,which we quote herein,should there be any individual infractions, let it come to light:
"Heard Learned counsel for both sides. We also direct all the parties to file written argument notes but with reference to each of the candidates. KPSC will file reply to that in reference to each candidate. Shri Narayan Bhat is allowed to file reply to that in reference to each candidate.
By common consent we have taken OA.961 as the designated leading case and all arguments will be addressed in relation to that.
Let applicant file written argument note in next 2 days time. Let others file within next 3 days time. We will grant one or 2 days time to file rejoinder to that written argument note. Let all the parties file written argument note along with the rulings on which they rely upon with significant portion marked with marker ink. Post on 31.10.2019 for hearing and disposal."60 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
33. It was stipulated by the newly impleaded respondents in the Writ Petition No. 50238/2019 filed by them to indicate that "22-10-2019 -
Matter came to be listed before Hon'ble CAT, once again, the matter is adjourned to 31.10.2019". But the fact was that the matter was heard and reserved for orders and learned counsel for the applicant submits that suppressing this only, the above Writ Petition was filed before Hon'ble High Court and obtained the stay on that date. When the matter was taken up for elucidation on 31.10.2019 also, the intention to file the Writ Petition was not canvassed, even when the matter was heard on merit and we had passed the following order on 31.10.2019.
" Learned counsel for both parties are present.
Heard.Reserved for orders. All the learned counsels are requested to file written argument note based on the discussions made in the Court. They may also produce whatever rulings they want to produce along with significant portions marked with a marker ink. But still, post the matter for further elucidation, which we may have.
In the meanwhile, applicant to produce the full Fact Finding Committee report.Post on 08.11.2019."
34. Thereafter, we had posted the matter for hearing on 8.11.2019 to see whether the counsel will have any other matter to present before us as that also can be taken into account in view of the issues involved in the matter. On that date we were informed that the Hon'ble High 61 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Court had stayed further proceedings and, therefore, we declined to pronounce the order.
35. Now it is submitted that the Hon'ble High Court had since passed an order on that date directing to pass orders on all aspects including the maintainability. Therefore, we propose to club together all matters as was earlier decided on 22.10.2019 on common consent explaining factual matrix in each matter and then analyse factual matrix in the light of law subsequently but jointly.
36. The applicantsare officers of the Indian Administrative Service. They have challenged the notification issued by the Karnataka Public Service Commission revising their position in the formation of officers selected in 1998, i.e. 21 years back.
37. The basis of this matrix is that in relation to a selection to be made and on directions of the State Government, the Karnataka Public Service Commission (KPSC) conducted an examination for recruitment of Probationers into Karnataka Administrative Service (KAS). An examination was held in which thousands of people participated and no information is available as of now from the records as to the relative position available to them on evaluation and re-evaluation.
Apparently after the report of the fact finding Committee, 91 answer 62 OA No. 170/00961/2019 & Ors/CAT/BANGALORE scripts were seem to have been selected and subjected to examination. The applicant alleges that a process unknown to law had been adopted and even the said parameters and barriers were breached allegedly by the pressure of a particular group. The group remains unidentified as of now.
EXAMINATION OF THE MATRIX
38. Under the Karnataka Civil Services Act, 1978, rules were promulgated for selection to the post of Group-A and Group-B by the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examination) Rules, 1997. The matter originally related to recruitment of 415 posts of Group-A and B Gazetted Probationers.
39. Apparently some unsuccessful candidates filed Application Nos. 7901 to 7908/2001 before Karnataka Administrative Tribunal alleging irregularities in the examination conducted for the recruitment of Group-A and B posts against the notification dated 9.3.1998. Vide order dated 6.2.2001, the Karnataka Administrative Tribunal (KAT) allowed the applications filled by them challenging the evaluation and ordered to conduct a fresh evaluation. The KPSC challenged the order passed by the KAT before the Hon'ble High Court of Karnataka in Writ Petition No. 12548-12589 of 2002.
63 OA No. 170/00961/2019 & Ors/CAT/BANGALORE40. This was challenged and; on 11.10.2002, a Division Bench of Hon'ble High Court of Karnataka allowed the Writ Petition in part and thereby put a stop to the re-evaluation of all candidates. We quote from the order in Writ Petition Nos. 12548-12589 of 2002:
"WRIT PETITIONS ARE FILED PRAYING TO QUASH THE ORDER DATED 6.2.2002 MADE IN APPLICATION NOS. 7901-7908/2001 (T) AND CONNECTED MATTERS PASSED BY THE KAT, BANGALORE, BEING ERRONEOUS, ARBITRARY AND CONTRARY TO LAW EQUITY AND JUSTICE VIDE ANNEXURE-A. THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED AND COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, RAVEENDRAN J., MADE THE FOLLOWING:
ORDER Karnataka Public Service Commission [KPSC] issued a notification dated 9.3.1998 inviting applications for recruitment to the post of Gazetted Probationers [Group A and B posts], in pursuance of a request of the State Government made on 4-2-1998 to select 415 candidates for Group-A and Group-B posts. In response to said notification, KPSC received 85598 applications. On scrutiny 79130 candidates were found eligible for preliminary examination. The mode of selection is governed by the Karnataka Recruitment of Gazetted Probationers [Appointment by Competitive Examination] Rules, 1997 [for short, the 'Recruitment Rules'], made by the Government of Karnataka in exercise of powers under Section 3(1) read with Section 8 of the Karnataka State Civil Services Act, 1978.
2. Rule 4 of the Recruitment Rule requires that a combined competitive examination for recruitment to one or more of the services or group of posts (mentioned in Schedule I to the Rules) shall be held every year, subject to availability of vacancies, in the manner set out in Schedule II to the Rules. As per the scheme of examination contained in Schedule II to the Rules, the competitive examination comprises two stages viz., (i) preliminary examination [objective type] for selection of candidates for the main examination; and (ii) main examination [written examination and personality test] for selection of candidates to the posts, to be held as follows:
A. PRELIMINARY EXAINATION: The preliminary examination shall consist two papers of objective type (multiple choice).
Paper I General Studies 150 marks
Paper II One Subject to be 300 marks
selected from the list of
64 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
optional subjects
Total 450 marks
Note 1 to 3: xxxx (not relevant)
Note 4: The number of candidates to be admitted to the main examination shall be 20 times the vacancies notified for recruitment in the order of merit, on the basis of the performance in the preliminary examination subject to accommodating in the same ratio adequate number of candidates belonging to the categories of scheduled castes, scheduled tribes and each of the other backward classes. B. MAIN EXAMINATION: The main examination shall consist of written examinations and Personality Test:
Written Examination:
Paper I Kannada 150 marks
Paper II English 150 marks
Paper III & General Studies 300 marks for
IV each paper
(total 600
marks)
Paper V, VI, Two subjects to be 300 marks for
VII & VIII selected from the list of each paper
optional subjects. Each (total 1200
subject will have two marks)
papers.
Total marks for written 2100 marks
examination
Note 1: The marks obtained in compulsory papers, i.e., in Kannada and in English shall be of qualifying nature. For qualifying in these papers, a minimum of 30% in each paper and 35% aggregate is prescribed. The marks obtained in these two papers shall not be considered for determining the merit for selection. Candidates who do not secure the prescribed marks in the qualifying papers namely Kannada and English shall not be eligible for the personality test and selection.
Note 2: The examination shall be of conventional type. Note 3: The question papers shall be set both in Kannada and in English. A candidate may answer a paper either entirely in Kannada or in English.
Note 4: The standard of the main examination [except paper-I Kannada and Paper-II English] shall be that of degree level. The standard of paper I Kannada and paper II English shall be that of first 65 OA No. 170/00961/2019 & Ors/CAT/BANGALORE language Kannada and first language English respectively at SSLC level.
C. PERSONALITY TEST: The Commission shall call for a personality test as far as may be, five times the number of candidates as there are vacancies in the services in Group 'A' and Group 'B' respectively, of schedule I in the order of merit on the basis of the result of the main examination, subject to calling candidates belonging to schedule castes, schedule tribes and other backward classes in the same ratio to the extent vacancies reserved for them. Personality test shall carry a maximum of 200 marks. The object of the personality test is to assess the personal suitability of the candidate for the service for which he is a candidate............
3. The preliminary examination was held on 30.8.1998 and 56228 candidates appeared for the said examination. The results of preliminary examination were announced by KPSC on 16-11- 1998 and 9857 candidates were declared eligible for the main examination, keeping in view the prescribed ration of 1:20 and accommodating the same ratio of number of candidates belonging to SC, ST and OB classes. The main examination was held between 9-4-1999 and 3-5-1999. On 12-1-2000, the results of the main examination were announced and 2397 candidates were qualified for personality test (interview) keeping in view the ratio of 1:5 and accommodating the same ratio of number of candidates belonging to SC, ST and OB classes. 1209 candidates who had failed in the compulsory papers [Kannada and English] were not considered for ranking. The personality test which was scheduled to be held between 19-6-2000 and 31-7-2000 could not be held due to certain administrative reasons. Subsequently, the government withdrew the vacancies on 14-8-2000, but again referred back the vacancies to KPSC in June 2001. Therefore the personality tests were held in only July and August, 2001 and a provisional list of selected candidates was published on 28-9-2001.
4. In the meanwhile, in February, 2000, eight candidates who had appeared for the main (Written) Examination, but had failed in the compulsory papers of Kannada and/or English filed WP Nos.5332-39/2000 alleging serious irregularities in evaluation of answer script in regard to the main examination and sought the following reliefs: a) a direction for revaluation of their answer scripts in compulsory subjects; b) a direction to State Government to appoint an independent body to inquire into the manner in which the examinations had been conducted and to direct KPSC to get the entire papers evaluated again through an independent body under the supervision of the court and in the event of the court holding that any mal-practice has taken place, then to direct KPSC to hold fresh examinations; and c) direct the KPSC to declare the marks obtained by in the optional and general studies papers. Another candidate who failed in the compulsory subjects filed WP No.7022 of 2000 seeking a direction to KPSC to revalue his answer script in compulsory English paper.66 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
5. In the said writ petitions, the said candidates raised the following among other contentions:
a) Having regard to their high qualifications, it was inconceivable that they failed to secure 30 marks in SSLC level Kannada and English compulsory papers.
b) There were serious irregularities in valuation as per newspaper reports. In particular one Rameshwarappa (working as a Deputy Director of Food & Civil Supplies) and his family members had secured I, II and IV ranks in the written examination. All of them had taken the examination in the same room and had selected the same optional subjects and their papers had been evaluated by the same examiner; The said Rameshwarappa was a close friend of the then Secretary of KPSC (A.K.Monnappa).
c) A senior employee of KPSC, whose son had appeared for the examination, had participated in the Examination process and evaluation, thereby giving cause for a serious doubt about the fairness in valuation.
d) Key answers [model answers] prepared by KPSC, which had to be kept confidential until the declaration of results, were leaked out by KPSC even before the main examination;
e) The then Secretary of KPSC and his personal assistant who were in charge of the answer scripts and who had knowledge of the code numbers given to the answer scripts, got some of the answer scripts in which they were interested, evaluated with the help of a particular examiner and also manipulated the computer entries;
f) Several candidates who had passed the compulsory subjects had secured very low marks in the optional subjects, which imply that the compulsory papers were not properly valued; and for example one Sheryar Khan, who did not have any knowledge in Kannada had been declared as having passed Kannada paper.
g) Some of the examiners selected to evaluate the papers were blood relatives of the candidates, which is contrary to KPSC Rules.
6. KPSC resisted the said writ petitions contending that the examinations had been conducted in accordance with the Recruitment Rules. It denied any irregularity either in conducting the examinations or in the valuation of answer scripts. It pointed out that all the writ petitioners had not failed in Kannada and English papers; that three had failed in English and one had failed in Kannada papers and others had passed the compulsory papers, but did not become eligible for personality test as they did not secure sufficient marks to be called for personality test. KPSC set out the procedure adopted for evaluation of answer scripts in its statement of objections which is extracted below:
"It is submitted that the examination work consists of the following: 1. Pre-valuation work, 2. Post valuation work. The 67 OA No. 170/00961/2019 & Ors/CAT/BANGALORE examination process is conducted in secrecy and confidentiality. It is inevitable for the Secretary to be in charge of all the details, because of administration of the Commission is done under his supervision and he is the executive Head of the Office of the Commission. He is a responsible Officer who belongs to I.A.S. cadre. Panels of Examiners are sent by various Universities at the behest of the Commission and selection of the Examiners is effected from those panels. The qualifications and status of the Examiners are prescribed. The Examiners were highly qualified and were either Professors, Selection grade Lecturers and Senior Scale Lecturers and were well trained and proficient in their respective subjects. Examiner's consent for examination work, his/her undertaking to the effect that he/she is not a candidate for the examination in question, that no close relatives of his/her have appeared for the said examination viz., Son/daughter/brother/sister/ spouse/son-in-law/daughter-in-law etc., that he/she has not been debarred from any examinership and such other necessary undertakings pertaining to the examination were sought and obtained and after such undertakings was obtained, the said person was considered for appointment as Examiner.
It is submitted that, a day or two prior to the actual commencement of the valuation work, the concerned Chief and Head Examiners jointly used to prepare the model answers which model answer intrinsically contained the scheme of valuation. On the forenoon of the day of commencement of the valuation, copies of the model answers so prepared used to be circulated among the valuers. The scheme of valuation and model answer was to be discussed by Chief/Head/Additional Examiners and a consensus used to be arrived at in respect of scheme of valuation and model answer. This resulted in removing any arbitrariness and angularities in the valuation, besides in adopting uniform standards for awarding marks by all the concerned evaluators. These Examiners and Head Examiners who were all well trained and proficient in their respective subjects, had also indicated such guidelines as deemed fit by mutual discussion for the guidance of the valuers to ensure a fair and objective valuation. It is emphasised that this central valuation involved also face to face discussion among the Chief Examiners, Head Examiners and Examiners so that any arbitrariness and angularities are eliminated. Thus, the model answers will be only prepared for the above purpose, long after the examinations are over and a day or two prior to the Central Valuation takes place.
It is submitted that the examination was completed by 2nd May, 1999. The valuation work was commenced by 17-5-1999 and was completed by 18-6- 1999. The answer scripts for the purpose of valuation were coded under the direct supervision of the Secretary of the Commission. There are 8 papers. In other words, there are 8 answer scripts of a candidate. Each of the answer script of a candidate bears a unique and exclusive code number. Thus, each candidate will have 8 different code numbers. The answer scripts were 68 OA No. 170/00961/2019 & Ors/CAT/BANGALORE subject wise bundled after randomising and put in plastic covers each bundle having ten scripts and sent to the place of Central Valuation. There, the Chief Examiners, Head Examiners and Additional Examiners (Valuers) used to be present. The answer scripts used to be handed over to the Chief Examiners, who in turn used to give packets to the answer scripts to the Examiners, who used to value it. From the Commission side, there used to be one Assistant Secretary permanently at the place of Central Valuation with clerical and other assistance to hand over the scripts to the Chief Examiners and most of the time the Secretary used to visit the place of Central Valuation to ensure that the work of valuation was smooth and devoid of any problems. Security had also been provided to ensure and to see that no unauthorised persons had access to that place. After the valuation, the scripts valued, used to be returned to the Commission along with the marks sheet. The answer scripts and marks sheet used to be sealed separately in the central valuation venue itself and the answer books stores in the central place in the Commission, with police security. The sealed marks sheet cover used to be in the safe custody of the Secretary.
7. When the said writ petitions came up for consideration before a learned Single Judge, it was submitted that the issues raised in the writ petitions were of considerable importance and even though the petitioners in the writ petitions had made individual grievances in regard to valuation of their answer scripts, several other infirmities which had been pointed out related to public interest and therefore it was desirable to refer the matter to a Division Bench. The learned Single Judge, therefore, by a considered and detailed order dated 21-3-2000 referred the said writ petitions to a Division Bench.
8. In the meanwhile, 24 other candidates also approached this Court with a similar prayer. Hence, those petitions were also clubbed with WP No.5332- 39 and 7022 of 2000. Before the Division Bench, KPSC pointed out that as recruitment related to State service, and as the Karnataka Administrative Tribunal was functional by appointment of necessary members, the writ petitions were not maintainable. The Division Bench accepted the said contention and transferred 33 writ petitions to the Tribunal with a direction to treat the writ petitions as Applications and adjudicate the same in accordance with law. Accordingly, the tribunal registered the transferred writ petitions as applications and assigned numbers as Application Nos.7901 to 7908, 7928 to 7933, 7909, 7911 to 7918, 7920 to 7927, 8772 and 8893 of 2001. Nine other candidates directly approached the Tribunal in Application Nos.8087, 8274, 8275, 8442 to 8446 and 8502 of 2001. All the 42 petitions were heard and disposed of together by the Tribunal.
9. During the course of arguments, the Tribunal directed KPSC to produce (i) the answer scripts of Rameshwarappa and two of his relatives who had secured top ranks, as also the answer scripts of Sheryar Khan and one Virupaksha whose father was a Deputy Secretary of KPSC; (ii) model answers; and (iii) the list of Examiners, Head Examiners and Chief 69 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Examiners, who had evaluate the answer scripts and tabulated the statements, indicating who had valued the answer scripts of applicants and others. All these were produced by KPS and considered by the Tribunal. The arguments were concluded on 2.11.2001 and the Tribunal reserved the applications for orders. On 19-11-2001 the Tribunal issued a direction to KPSC to maintain status quo until the disposal of the Applications. The Tribunal also suggested to the learned counsel for KPSC that KPSC may produce the marks assigned to the top 50 candidates in each category (by the Examiner, Head Examiner and Chief Examiner) and posted the matters to 21-11-2001. KPSC sought certain clarification in regard to the suggestion of the Tribunal for production documents. Thereafter the learned counsel for KPSC sought time to consult the Commission and make submissions. The matter was adjourned to 22-11-2001 and again to 28-11-2001. On 28-11- 2001, the learned counsel for KPSC submitted that the Secretary of the Commission was away on training at Mussouri for a period of six to eight weeks, and the keys of the almirah in which the records were kept were with him and therefore the information could not be produced immediately; and that even otherwise, KPSC was unwilling to give the information sought, having regard to the scope of the proceedings before the Tribunal. KPSC also filed the following memo:
After hearing the parties this Hon'ble Tribunal suggested the KPSC to cause production of marks of the top 50 candidates in each category along with the marks awarded if any by the Head Examiner and Chief Examiner. This suggestion has been considered by the KPSC with all seriousness it deserves as it was coming from this Hon'ble Tribunal.
However it is not possible nor is it legally incumbent upon KPSC to produce the information sought on account of several administrative reasons and having regard to the limited scope of judicial review in these matters, where allegations made have remained as mere allegations and not proved or substantiated in manner known to law.
The above memo may be taken on record.
10. Thereafter, the tribunal by order dated 6-2-2002 allowed the applications, being of the view that the awarding of marks to candidates was not fair and therefore the merit list was vitiated. The Tribunal issued the following directions:
In the instant case, we are of the view that the valuation of the answer scripts cannot be regarded as fair and consequently has to be held to be arbitrary. Having regard to the circumstances of the case, no distinction could be made between answer scripts which are validly valued and those that are not validly valued. The entire valuation of the answer scripts would have, therefore, to be held as arbitrary requiring fresh valuation. The KPSC shall have to get the answer scripts freshly valued by appointing Examiners who are in no way interested in the candidates taking the examination. The appointment 70 OA No. 170/00961/2019 & Ors/CAT/BANGALORE of Examiners shall be done only after verifying their declaration that none of their relatives specified in the format of the declaration is a candidate in this examination. It would be necessary for the KPSC to erase all the code numbers that are given to the answer scripts and to give fresh code numbers both to the compulsory subjects as well as to the optional subjects and to have them valued on the basis of the norms for valuation already formulated or to have a fresh norm formulated for the Examiners. The KPSC shall have all the answer scripts which have fetched 60% and above marks valued by a set of two Examiners. If there should be any difference between the dual examiners exceeding 5% of the marks, the papers shall be referred to 3rd Examiner. The acceptability of the valuation by the Examiners, as aforesaid shall be left to the discretion of the KPSC, but that must be amongst the top three Examiners referred to above. In respect of the results announced on fresh valuation as aforesaid, the KPSC shall permit revaluation of answer scripts of all those candidates who seek such revaluation within a time to be specified from the date of publication of the results and on such payment as may be determined by it. On publication of the results pursuant to this order, the KPSC shall be obliged to furnish to all the candidates marks obtained by them in all the papers attempted by them irrespective of the fact as to whether they have passed in the compulsory papers or not.
11. Feeling aggrieved, KPSC has filed WP No.12548-589 of 2002 and sought quashing of the order passed by the Tribunal Respondents 1 to 42 were the applicants before the Tribunal and 43rd respondent is the State Government. Several selected candidates, whose names appear in the provisional select list published by the KPSC, have also filed writ petitions challenging the order of Tribunal, in WP Nos.8702-11, 9085-91, 9250-55, 13310-16, 13464-69, 134747-84 and 21218 of 2002. As they involve the same questions, we have heard them together.
11.1) Before us, the following grounds are urged by KPSC:
a) As there is no provision for revaluation, no candidate had a right to seek revaluation an therefore the Tribunal ought not to have directed revaluation;
b) The only irregularity established before the Tribunal was in regard to Rameshwarappa and two of his relatives namely B S Nagaraj and B S Triveni, as there was a large difference between the marks awarded by the Examiner and the Chief Examiner in some papers. There is no finding by the Tribunal in regard to any other irregularity in the conduct of examination or valuation. In the absence of any material to show violation of any Rules relating to examinations, or mala fides on the part of KPSC, the Tribunal ought to have restricted the direction for revaluation only in respect of the answer scripts of Rameshwarappa, B S Nagaraj and B S Triveni. There was no material or basis to annul the entire valuation process or to direct a wholesale revaluation;71 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
c) The Tribunal was not justified in having drawn an adverse inference for non-production of the marks assigned by the Examiner, Head Examiner and the Chief Examiner in the case of top fifty candidates in each category, in the absence of any application by the applicants before the Tribunal calling for production of such documents or in the absence of any order or direction by the Tribunal to produce such documents. An oral suggestion by the Tribunal, after the conclusion of the arguments cannot be equated to a direction and therefore the non-production of said documents cannot lead to any adverse inference.
d) The Tribunal exceeded its jurisdiction in directing the manner in which the fresh evaluation should be done, that too in a manner contrary to the provisions of the Recruitment Rules and the guidelines of KPSC.
11. 2) In addition to the said contentions, the selected candidates have urged the following contentions:
e) The Tribunal has no jurisdiction to entertain a public interest litigation. In service matters an applicant can seek relief only for himself and cannot seek relief in general. The Tribunal has proceeded with the matter and issued directions as if the matter was a public interest litigation, which is impermissible.
f) KPSC had announced the main examination results on 12-1-
2000, showing 2397 candidates had qualified for personality test. The writ petitions (which were converted as Applications before the tribunal), were all filed subsequent to 12-1-2000. Therefore, the writ petitions by the unsuccessful candidates without impleading the 2397 candidates who qualified for the personality test, were liable to be rejected for non-joinder of necessary parties. Further, before the conclusion of arguments before the Tribunal, the provisional list of selected candidates was also published on 28-9-2001. At all events, the Applications before the Tribunal could have proceeded with this Applications after 28-9-2001, only by impleading the selected candidates. As the selection candidates were nor impleaded, the Applications ought to have been rejected for non-joinder of necessary parties.
h) Even if there is any non-observance or violation of the guidelines issued by KPSC in regard to valuation, it will not furnish any cause of action to any of the unsuccessful candidates, as such guidelines do not have any statutory force. The selection process can be interfered with only if there is any violation of Article 14 or 16 of the Constitution of India or statutory provisions.
12. When these petitions came up for consideration of the interim prayer on 19.3.2002, learned counsel for the KPSC voluntarily produced the marks obtained by the top 50 candidates in each of the categories with an abstract, as also the particulars of moderation (that is marks increased/ decreased by the Head Examiner Chief Examiners) in regard to all candidates who 72 OA No. 170/00961/2019 & Ors/CAT/BANGALORE became eligible for personality test. After hearing the rival contentions in regard to interim prayer, we directed KPSC to produce the list of candidates in whose cases the variation in marks was plus or minus 20 or above [out of 300 marks] in a subject and also to furnish the particulars of cases where the Chief Examiners had done random revaluation with particulars of difference in marks. In response to it, on 21-3-2002 KPSC made available for the perusal of the court, statements showing the subjectwise marks awarded by the Examiner, Head Examiner and Chief Examiner where the difference was plus or minus 20 or above with sujectwise abstracts.
13. On 27-3-2002, KPSC offered to redo the moderation and circulated its proposals to all counsel. However, as the service of the respondents was not complete, and as the matter was being heard only with reference to the interim prayer, the said memo was not filed. After service, during the course of final arguments, on 22.7.2002, KPSC filed the said memo dated 27-3- 2002 offering to redo the moderation, without prejudice to its contentions. We extract below the said memo in is entirety.
MEMO The Commission has placed before this Hon'ble Court subjectwise abstract of total number of answer scripts valued, number of answer scripts moderated by the Head Examiner and/or Chief Examiner and cases where the marks awarded in moderation is plus or minus 20 or more vis-a-vis the marks awarded by the Examiner. The total number of cases where the variation is plus or minus 20 or more has been identified as 661. Keeping in mind anxieties expressed and apprehensions stated during the hearing of the writ petitions and the suggestions that feel from the Bench of this Hon'ble Court, the Commission has examined the entire issue in the light of the scheme laid down by the Commission regarding valuation of the answer scripts. The endeavour of the Commission has been to find a solution which would be in line with the scheme of examination prescribed by the Commission.
Keeping the above objective in mind and in deference to the suggestions that emerged during the hearing of the writ petitions, the Commission is making the following offer:
(a) Wherever the random review done by the Head Examiner is less than 10 percent of the answer scripts evaluated by any examiner in any subject, the short fall would be made up examinerwise and subjectwise by random review of answer scripts to the extent of shortfall. While doing so, it will be ensured that random sampling shall not be less than 5 percent of the top level answer scripts.
(b) The Commission has always been of the view that review referred to at para 3 of the scheme of valuation is not analogous to scaling technique. It has been understood by the Commission as review of marks of particulars answer scripts taken up for random review by the Head Examiner. However, during the hearing it has been expressed 73 OA No. 170/00961/2019 & Ors/CAT/BANGALORE hat review should be understood as scaling technique. The Commission has considered the suggestion and is of the opinion that on the basis of random review of answer scripts done in respect of answer scripts evaluated by each examiner average variation shall be arrived at. Wherever the average variation is less than plus or minus 20 general review of the marks awarded need not be done. However, where the average difference is plus or minus 20 or more, the marks awarded by such examiner shall be increased or decreased by that average in respect of each of the answer scripts evaluated by that examiner. In case the average variation is less than plus or minus 20, but variation in respect of individual answer scripts is plus or minus 20 or more those answer scripts would be subjected to third valuation.
(c) As a result of random review if in respect of any candidate the change in marks is too generous or too adverse to the candidate, the Commission would refer such paper for third valuation. The Secretary who was holding the post at the time when central valuation was conducted in respect of examination in question is no longer with the Commission. The Commission would ensure that disinterested staff of the Commission headed by the Secretary will supervise and monitor the entire process of review and revaluation that would be undertaken as set out above.
14. It was also submitted on behalf of KPSC that an in-house inquiry has been held by a Three Member Sub-Committee of the Commission in regard to the alleged irregularities, and a report had been submitted to the effect that the result of ten candidates are vitiated by malpractice and recommending the cancellation of their results after following the necessary procedures and further recommending certain other steps. It was assured that it will also initiate action in terms of the said report. A copy of the said report was also made available for the perusal of the court.
15. The contesting respondents (applicants before the Tribunal) were not however willing for restricting the revaluation/moderation, in the manner suggested by KPSC in its Memo filed on 22-7-2002. We will therefore consider the several points in issue in these petitions. Whether the Applications are liable to be rejected for non-joinder of selected candidates as parties:
16. The selected candidates contend that they were necessary parties to the proceedings and their selection cannot be challenged by the non-selected candidates, without impleading them as parties. It is submitted that as they were not impleaded as parties and as no allegation or irregularity has been made against them [selected candidates], their selection should be not interfered with. Reliance is placed on the decision of the Supreme Court in PROBOTH VERMA vs STATE OF UTTAR PRADESH [AIR 1985 SC 167], wherein it is held that where large number of persons who are to be vitally affected by the writ petitions are not impleaded as respondents, the petitions 74 OA No. 170/00961/2019 & Ors/CAT/BANGALORE cannot be proceeded with, without requiring that such persons or at least some of them in a representative capacity, be made as respondents; and that on failure to so implead, the petitions should be dismissed for non- joinder of necessary parties. Reliance is also placed on the decision in EX- CONSTABLE CHOTELAL vs UNION OF INDIA [2000 (10) SCC 196] where the Supreme Court held that the principles of natural justice requires that selected persons whose appointments were sought to be set aside, should be made parties to the proceedings.
17. The two cases relied on by the selected candidates were cases where on the date of filing of writ petitions, the selection had already been made. But, in these cases, as noticed above, the applications considered by the tribunal were transferred writ petitions originally filed before this court in or about February, 2000. In February, 2000, only the main examination results had been announced and no candidate had been called for personality tests. Persons who had filed writ petitions were those who had failed in the compulsory papers or those who were not considered to be qualified for personality test. They had approached this court immediately after announcement of the main examination results. The personality test was held only in July/ August, 2001 and the provisional selection list was published in September, 2001 more than one and a half years after the filing of those writ petitions and long after the matters were transferred to the Tribunal. The question whether a person is a necessary party or not has to be examined as on the date of filing of the petitions and not with reference to the subsequent events. In fact as the publication of provisional selection list was during the pendency of applications, the said list is itself subject to the final decision in the pending cases. Therefore, it cannot be contended that candidates who were selected on 28-9-2001 were necessary parties to the applications.
18. In this case, what is challenged is not the selection of any particular candidate. What is challenged is the entire evaluation process on the ground of fraud and irregularities. It is a settled principle of service jurisprudence that where there are large scale fraud or irregularities in selection and the entire selections are challenged on that ground (as contrasted from challenge to the selection of any specific candidate), it is not necessary to implead the selected candidates.
18.1) In GM, SOUTH CENTRAL RAILWAY, SECUNDERABAD vs A V R SIDDHANTI [AIR 1974 SC 1155], the Supreme Court held that where a policy regarding seniority is challenged as being violative of Articles 14 and 16 of the Constitution, relief can be claimed only against the authority/employer and non-joinder of employees/persons who are likely to be affected by the decision will not be fatal to the petitions. In this case, the challenge is on the ground that there are large scale irregularities in the conduct of a competitive examination and in the evaluation of answer scripts. Therefore, it cannot be said that all person who passed the examination or all the persons who were subsequently shown as having been selected should be impleaded as parties.
75 OA No. 170/00961/2019 & Ors/CAT/BANGALORE18.2) In KRISHNA YADHAV vs STATE OF HARYANA [AIR 1994 SC 2166], the Supreme Court held that where the process of selection was conceived in fraud and delivered in deceit involving fake and ghost interviews and tampering of records, the entire selection will have to be held to be arbitrary and the principle that innocent candidates should not be penalized for the misdeed of other will be inapplicable in such cases. Supreme Court held that where there was a systematic fraud, the only course is to set aside the entire selection, as fraud unravels everything; and where the selection process is arbitrary, what is faulted is the entire selection as such and not the selection of any individual candidates. 18.3) In UNION OF INDIA vs O CHAKRADHAR [2002 AIR SCW 872], the Supreme Court held thus:
" ....... the nature and extent of illegalities and irregularities committed in conducting the selection will have to be scrutinized in each case, so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all pervasive, affecting the results so as to make it difficult to pick out persons who have been unlawfully benefited or wrongfully deprived of their selection, in such cases, it will neither be possible nor necessary to issue individual show cause notices to each selectee. The only way out would be to cancel the whole selection........"
To a similar effect is the decision of Supreme Court in KENDRIYA VIDYALAYA SANGTHAN vs AJAYKUMAR DAS [2002 (4) SCC 503].
19. We, therefore, hold that there was no need for the applicants before the Tribunal to implead all the candidates who were qualified for the personality test or all the selected candidates.
ii) Whether there were any irregularities in the evaluation/moderation:
20. The grievance of unsuccessful candidates who approached this court Tribunal was not in regard to the conduct of examinations, but in regard to the valuation. What is alleged are (a) improper evaluation leading to applicants before the tribunal being shown as having failed in the compulsory papers [Kannada and English]; and b) irregularities in moderation to help several candidates to secure higher marks than they deserved. Though a vague contention that the key answers [model answers] prepared for the benefit of Evaluators for the purpose of evaluation, were leaked out even before the main examination was urged, it was not pursued nor established. In fact KPSC has clarified that the examinations were held between 9-4-1999 and 3-5-1999 and valuation work commenced on 17-5- 1999 and the model answers were prepared only a few days before the actual commencement of the valuation. Therefore the question of model answers being leaked at the time of examination does not arise. In fact the tribunal has also not recorded any finding of any irregularity in conducting the examination. It has only directed fresh valuation of answer scripts and not fresh examination. Therefore, what falls for consideration is whether there were large scale irregularities in evaluation/moderation as alleged by the applicants (unsuccessful candidates).
76 OA No. 170/00961/2019 & Ors/CAT/BANGALORE21. The first contention of the applicants before the Tribunal was that having regard to their qualifications, they would not have failed in SSLC level Kannada/English papers and the fact, that they are shown as having failed in Kannada or English papers shows that valuation was not proper and therefore, their papers should be re-evaluated. It is, well settled that no candidate has a right to seek revaluation of his/her answer scripts unless such a right is expressly conferred by the Rules governing the conduct of the Examination. In MAHARASHTRA STATE BOARD OF SECONDARY & HIGHER SECONDARY EDUCATION & OTHERS vs PARITOSH BHUPESH KURMARSHETH [AIR 1984 SC 1543], the Supreme Court held that there is no legal right in any examinee to demand disclosure, inspection or verification of his answer books in the absence of an express provision in the Rules/Regulations, governing the conduct of examination; and that the power conferred on the Examining Authority to order revaluation or correct errors in the event of mal practice or fraud does not confer a right of an examinee to seek revaluation. But, as already noticed, if there are large scale irregularities in regard to valuation, the Court can direct revaluation of all answer scripts. It is however unnecessary to examine this matter further, as KPSC has, having regard to the facts and circumstances, voluntarily come forward to re-evaluate the compulsory papers [Kannada and English] of the applicants before the Tribunal if they have been shown as having failed in those subjects. KPSC has, however, made it clear that this concession of revaluation is only in regard to compulsory papers and that too only in regard to the applicants/petitioners who have already approached the Tribunal or this court and who have failed in such papers. As only a few candidates have a grievance in regard to valuation of their compulsory papers (English and Kannada), we are satisfied that relief in regard to revaluation of compulsory papers should be restricted to those candidates who have approached the Tribunal or this Court till now and none others.
22. The next grievance is in regard to alleged irregularities in evaluation. Evaluation consists of two stages: (i) Evaluation of all answer scripts by Examiners; and (ii) random re-evaluation by Head Examiners and Chief Examiners resulting in moderation. KPSC issued instructions to the examiners in regard to evaluation and also issued Guidelines containing the nature and duties of the Chief Examiner and Head Examiners. Paras 1 to 4 of the said guidelines to Chief/Head Examiners which are relevant are extracted below:
1. Before the commencement of the central valuation the Examiners will be supplied with the question papers and the model answers/scheme of valuation adopted/finalised by the Chief Examiners and the Head Examiners in their meeting held previous to the day of commencement of central valuation. This will be followed by a detailed discussion between the Chief Examiners, the Head Examiners and the Examiners for a thorough exchange of views on various aspects covering central valuation, model answers/scheme of valuation etc. 77 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
2. In the light of the model answers/scheme of valuation supplied to them and the consensus arrived at the meeting with the Chief Examiners and the Head Examiners, the Examiners will have to carry out a sample valuation of at least ten answer scripts. These sample valuation will have to be reviewed by the Head Examiners. Deviation if any, will be informed to the Examiners concerned. After this, the Examiners will go ahead with their job of valuation.
3. During the course of central valuation, the Head Examiners should continuously review at random the valuation done by the Examiners, to ensure that the scheme of valuation is actually being followed by them. Such random sampling should not be less than 5% of the top-
level answer scripts and the overall random review should not be less than 10% of the answer scripts evaluated by each Examiner. During the review, the Head Examiners can carry out alteration in the awards keeping in view the scheme of valuation.
4. The Chief Examiner will co-ordinate with the Head Examiners and the Examiners in the smooth and orderly conduct of the central valuation. During the central valuation, the Chief Examiner should also review at random the answer scripts valued by the Examiners and/or re-review the answer scripts already reviewed by the Head Examiners to ensure uniformity in the valuation among the Examiners and the Head Examiners. The marks awarded by the Examiners, the Head Examiners or the Chief Examiners, as the case may be, shall be final unless otherwise decided by the Commission for valid reasons.
23. Where a large number of answer scripts are to be evaluated, obviously they cannot be evaluated by a single examiner. The answer scripts relating to the same subject are therefore distributed to several Examiners, for evaluation. When there is more than one or when there are several Examiners for evaluation of the answer scripts relating to a subject, usually two problems arise:
(iii)Each Examiner will have his own perception as to what is the right answer. In fact some Examiners may not even know what exactly is the correct answer, leading to incorrect evaluation.
(iv)Each examiner will have his own method of awarding marks. While some may be highly conservative or 'stingy' in awarding marks, some may be highly liberal or 'generous' in awarding marks. There may also be different levels of 'stinginess' or 'generousness' among the Examiners.
To iron out the natural creases arising in evaluation, it is necessary to adopt certain procedural safeguards to ensue that no candidate is unjustly benefited or placed at a disadvantage, vis-a-vis the other candidates and to ensure that the evaluation is uniform and consistent. 23.1) The first problems is dealt with by preparing and furnishing model answers to the Examiners and having a group discussion before the 78 OA No. 170/00961/2019 & Ors/CAT/BANGALORE commencement of evaluation with Head/ Chief Examiners to sort out the doubts and modalities.
23.2) The second problem is usually sought to be solved by adopting moderation. In this case, KPSC has chosen double random review method as detailed in para 3 and 4 of the guidelines (extracted in para 22 above). The more effective way of achieving moderation is by Scaling Technique method adopted by the Union Public Service Commission. Under that method, after evaluation by the Examiners, the Head Examiner conducts a random sample-survey of answer books to ensure that the norms and standards have been followed scrupulously by the examiners. For this purpose, some answer books of higher grading are produced for the scrutiny of the Head Examiner. A few answer books of middle and lower levels or marks are also selected at random for the same purpose. The Commission will also supply statistics like distribution of candidates in various ranges based on marks obtained by them, the average percentage of marks and the highest and lowest awards etc., for the papers valued by the concerned Examiner in order to assist the Head Examiner in his work and help forming his judgement about the standards marking of each Examiner. On such survey, the Head Examiner may either confirm the awards without any change on satisfying himself that the examiner has followed the instructions on the standards decided upon or may suggest an upward or downward revision as the case may be, as moderation, the quantum of moderation varying according to the degree of strictness or liberality of the Examiner, revealed by the random survey. In the case of top level answer books, revalued by the Head Examiner, his award of marks are accepted as final. As regards the other answer books, below the top level, to achieve maximum measure of uniformity among the Examiners, the awards are moderated as per the recommendations made by the Head Examiner.
24. In the double random review method adopted by KPSC only the answer scripts re-evaluated at random get moderated and the adverse effect of either too strict or too liberal award by an Examiner in regard to other answer scripts evaluated by him remains un-rectified. (For example, if an Examiner who is too liberal evaluates 100 answer scripts resulting in liberal valuation of 100 scripts and five of such answer scripts are re-evaluated and moderated by the Chief/Head Examiner, the effect of moderation is reflected only on those five answer scripts and the valuation in regard to the remaining 95 answer scripts remains unaltered). But in the scaling technique method uniformity is achieved on account of Head Examiner moderating the award in respect of all other answer scripts evaluated by the Examiner, by either an upward or downward revision depending on the strictness or liberality of the Examiner disclosed on random re-valuation. Thus where several Examiners evaluate the answer scripts in respect of the same subject or a single paper, Scaling Technique method will be more appropriate. Reaslising the need for such moderation, particularly in view of the irregularities noticed, KPSC in its memo filed on 22-7- 2002 has agreed to apply the Scaling Technique method in this case. It has agreed that if on random review of answer scripts evaluated by an Examiner, the average variation is more than plus or minus 20 (out of 300), the marks awarded by 79 OA No. 170/00961/2019 & Ors/CAT/BANGALORE such examiner shall be increased or decreased by that average in respect of each of the answer scripts evaluated by that examiner; and in case the average variation is less than plus or minus 20, but variation in respect of individual answer script in plus or minus 20 or more, those answer scripts would be subjected to third valuation. We find that what is suggested by KPSC is fair and reasonable and will safeguard the interests or all candidates who have taken the examination.
25. Before taking up the next question relating to irregularities, we extract below the details of the optional subjects, the total number of answer scripts, the number of Examiners, the total number of answer scripts moderated by Head Examiners and or by Chief Examiner, in regard to each subject (extracted from statements furnished by KPSC):-
Sl. Subject/Paper Total Total Total Number
No. Number number of number of of answer
of examiners answer scripts
answer appointed scripts moderate
scripts moderated d by Chief
valued by Head Examiner
Examiner
1 2 3 4 5 6
1. AG& MKTG, SERI, 222 7 0 3
Paper-1
2. AG& MKTG, SERI, 219 14 0 4
Paper-2
3. An.Husb. & V.Sc. 78 9 0 78
Paper-1
4. An.Husb & V.Sc. 77 9 0 77
Paper-2
5. Botany Paper-1 654 18 59 31
6. Botany Paper-2 652 12 65 26
7. Chemistry Paper-1 197 7 42 37
8. Chemistry Paper-2 193 5 39 41
9. Civil Engg. Paper-1 28 2 0 3
10. Civil Engg. Paper-2 27 1 0 4
11. Commerce Paper-1 256 8 24 30
12. Commerce Paper-2 256 9 19 24
13. CriminologyPaper-1 832 12 0 83
14. CriminologyPaper-2 826 11 0 99
15. Economics Paper 1 998 19 99 12
16. Economics Paper-2 995 18 97 11
17. Elecl.Engg. Paper-1 31 3 0 3
18. Elecl.Engg. Paper-2 31 3 0 5
19. Geography Paper-1 1135 21 109 7
20. Geography Paper-2 1132 26 110 9
21. Law Paper-1 422 9 0 119
22. Law Paper-2 419 9 1 125
23. Mathematics Paper-1 221 6 9 37
24. MathematicsPaper-2 222 6 43 13
80 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
25. History Paper-1 4389 54 446 24
26. History Paper-2 4386 48 445 28
27. Mechl. Engg. Paper-1 54 3 0 4
28. Mechl. Engg. Paper-2 52 1 0 6
29. Philosophy Paper-1 21 1 0 4
30. Philosophy Paper-2 20 1 0 5
31. Geology Paper-1 106 4 0 26
32. Geology Paper-2 106 4 0 23
33. Physics Paper-1 323 7 32 21
34. Physics Paper-2 322 7 21 7
35. Pol.SciencePaper-1 1462 24 146 19
36. POL. Science Paper-2 1458 25 135 14
37. Psychology Paper-1 336 10 54 23
38. Psychology Paper-2 337 9 40 7
39. Public Admn. 2266 40 224 6
Paper-1
40. Public Admn. 2252 36 227 4
Paper-2
41. Sociology Paper-1 2572 31 321 77
42. Sociology Paper-2 2555 32 276 47
43. Statistics Paper-1 30 1 0 10
44. Statistics Paper-2 30 2 0 7
45. Zoology Paper-1 509 7 127 100
46. Zoology Paper-2 508 8 102 98
47. Rl.DevpmntPaper-1 565 14 45 47
48. Rl.DevpmntPaper-2 564 11 111 161
49. Hindi Paper-1 26 2 0 21
50. Hindi Paper-2 26 2 0 6
51. Anthropology Paper-1 729 10 8 172
52. Anthropology Paper-2 721 10 65 88
53. Urdu Paper-1 74 4 0 5
54. Urdu Paper-2 74 3 0 2
55. Kannada Paper-1 1348 46 147 48
56. Kannada Paper-2 1342 42 140 7
57. English Paper-1 214 7 20 6
58. English Paper-2 214 8 32 4
59. Management Paper-1 127 5 0 17
60. Management Paper-2 124 5 0 21
61. Gen.Studies Paper-1 10493 154 1026 43
62. Gen.Studies Paper-2 10425 151 1025 34
61283 1073 5931 2124
26. We will now proceed to consider the allegation relating to irregularities in evaluation. The first stage is the evaluation by the examiners. The contesting respondents [unsuccessful candidates] have neither alleged nor made out any irregularity at the stage of evaluation by the examiners, except making a 81 OA No. 170/00961/2019 & Ors/CAT/BANGALORE vague allegation that some of the examiners were related to the candidates who took the examinations. The Examiners came into the picture only at the stage of evaluation of the answer scripts. They had no part to play earlier. No Examiner knew which answer scripts would be entrusted to him for evaluation. The answer scripts were made into bundles of 10 each after randomising, and sent to the place of central valuation. The bundles of answer scripts were handed over to the Chief Examines, who in turn handed over them to the Examiners in the central valuation hall under the supervision of the Head Examiners/Chief Examiners and the Officers of Commission. Further, the answer scripts which were given to the Examiners for evaluation were coded and it was not possible for any Examiner to know the identity of the candidates whose answer scripts were evaluated by him.
27. There is nothing to show that the Examiners were related to any of the candidates or that on account of such relationship, any examiner helped any candidate in securing higher marks. The records secured by the Tribunal and by us do not disclose any irregularity at the stage of evaluation by the Examiners. The fact that some irregularities took place in re-evaluation by Chief Examiner/ s cannot lead to an inference that there was any irregularity in evaluation by the Examiners. The Tribunal found irregularities at the stage of re-evaluation and moderation and not at the earlier stage of evaluation by the Examiners. It has not recorded any specific finding of irregularity in the evaluation by the Examiners. Though an allegation of irregularity is not proof of irregularity, the Tribunal was persuaded to direct wholesale fresh evaluation on account of the refusal by KPSC to furnish the particulars sought by it. KPSC has now furnished those particulars and clearly explained why such particulars were not furnished to the Tribunal. In the absence of any specific allegation regarding irregularity in evaluation by Examiners and in the light of material placed before us, we find no reason to direct fresh evaluation of all answer scripts by a new set of Examiners. While it is true that every unsuccessful candidate who took the examinations should have the satisfaction that the examinations/evaluation were done fairly and that only persons better qualified than him have been selected in a fair competitive examinations, mere doubts and apprehensions, without factual basis, cannot lead to interference with the evaluation.
28. We may, however, refer to one aspect in regard to appointment of Examiners for future guidance of KPSC. We find that KPSC has not proceeded in accordance with any set guidelines as to the ratio of examiners to be appointed for evaluating the answer scripts. For example we find that as many as 9 examiners were appointed to evaluate only 78/77 answer scripts [I and II papers] of Animal Husbandry and Veterinary Sciences; the number of examiners appointed for evaluating 256 answer scripts each in Commerce and 422/419 answer scripts in Law were also nine. While only one examiner was appointed to evaluate 52 answer scripts in Mechanical Engineering (Paper II) and one Examiner to evaluate 30 answer scripts of Statistics (paper I), we find that three examiners were appointed to evaluate 31 answer scripts in Electrical Engineering. The number of examiners appointed for evaluating 729/721 answer scripts in Anthropology papers was
10. The number of examiners to evaluate 214/214 answer scripts in English 82 OA No. 170/00961/2019 & Ors/CAT/BANGALORE papers was eight. We find 58 examiners were appointed to evaluate 4386 history papers, 151 Examiners were appointed to evaluate 10425 answer scripts in General Studies. While 24/25 examiners were appointed to evaluate 1462/1458 answer scripts in political science papers, 46/42 examiners were appointed to evaluate 1348/1348 Kannada papers. We have referred to these figures only to demonstrate that there is no discernable ratio between the number of answer scripts to be evaluated and the number of Examiners appointed. The guidelines state that an examiner was required to evaluate 30 answer scripts per day in regard to optional/general studies papers. Therefore KPSC should have only such number of examiners as are required with reference to number of answer scripts to be evaluated and number of days allotted for evaluation. It should be remembered that more number of evaluators means more chances of variation, and need for more moderation. Ideally the number of examiners should be kept to the minimum, so that the chances of variation in evaluation is also the minimum. In future KPSC may consider fixing a ratio between the number of answer scripts and the Examiners for evaluation and avoid unnecessarily large number of examiners being appointed in some subjects. Be that as it may. These observations are not intended in any way to cast any doubt about the manner of evaluation in regard to the examination under consideration.
29. To find out whether there was any irregularity at the stage of moderation by the Head Examiners/Chief Examiners, we have called for and examined the following statements/abstracts produced by KPSC (among others):
i) statement showing the merit wise marks of the first 50 candidates category wise (that is GM, Group I, 2A, 2B, 3A, 3B, SC and ST):
ii) statement showing the subject wise marks awarded by the Examiners, Head Examiners and Chief Examiners, where the difference is plus 20 and above (335 answer scripts);
iii) statement showing the subject wise marks awarded by the Examiners, Head Examiners and Chief Examiners, where the difference is minus 20 and above (in regard to 326 candidates);
iv) subject wise abstracts showing the number of answer scripts moderated by Head Examiners and Chief Examiners and the number of answer scripts where the variation on moderation is plus or minus 20 and more;
v) subject wise list of Examiners, Head Examiners and Chief Examiners.
31. On such verification, we find that in regard to the following seven optional subjects (out of the total 30 optional subjects) consisting of two papers each, the number of answer scripts were very few and therefore no Head Examiners were appointed and only chief Examiners were appointed and only chief Examiners were appointed, and that the Chief Examiners have done random review of adequate number of answer scripts.
Subject Name of the subject Total No.of answer
83 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
code No. number of scripts
answer reviewed by
scripts the Chief
Examiner
3 Animal Husbandry-I 78 78
4 Animal Husbandry-II 77 77
9 Civil Engineering-I 28 3
10 Civil Engineering-II 27 4
17 Electrical Engg.-I 31 3
18 Electrical Engg.-II 31 5
27 Mechanical Engg.-I 54 4
28 Mechanical Engg.-II 52 6
29 Philosophy-I 21 4
30 Philosophy-II 20 5
31 Geology-I 106 26
32 Geology-II 106 23
53 Urdu-I 74 5
54 Urdu-II 74 2
On review, the variation in marks has not exceeded plus or minus 20 marks (out of 300 marks) in regard to any answer scripts. There is therefore no need to adopt any scaling technique moderation. As we do not find any irregularity in regard to the review evaluation or moderation in regard to the said seven subjects, there is no need to interfere with the valuation in respect of said papers.
32. In regard to the following four optional subjects also, no Head Examiners was appointed. But, the Chief Examiners have done adequate random review of answer scripts. The variation beyond plus or minus 20 marks [out of 300 marks], is nil in regard to some papers and hardly a few and that too only marginal in the other papers, as detailed below:
Sub Name of the Total No. of No. of answer
Code subject number answer scripts where
No of No. of scripts variation is
answer reviewed more than plus
scripts by the or minus 20
Chief and extent
Examiner thereof
21 Law-I 422 119 Nil
22 Law-II 419 125 Nil
43 Statistics-I 30 10 1(+22 marks)
44 Statistics-II 30 7 3(+23 to 27
marks)
49 Hindi-I 26 21 1 (-25)
50 Hindi-II 26 6 Nil
59 Management-I 127 16 1 (-25)
60 Management-II 124 18 3(-20 to -30)
84 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Therefore, even in regard to the above four optional subjects, there is no need to adopt any scaling technique moderation. As we find no irregularities, there is no need to interfere with the valuation in respect of the said papers also.
33. In regard to the optional subject-Chemistry, the total number of answer scripts were 197 and 193 in Paper I and II. The Head Examiners have reviewed 42/39 answer scripts and Chief Examiners have reviewed 37/41 answer scripts. In regard to paper II there is no variation exceeding plus or minus 20 marks on such review. In regard to paper-I, the variation is only in regard to three answer scripts beyond plus or minus 20 marks (between + 23 and + 31) on review by the Chief Examiners. We can therefore conclude that in regard to those papers also there are no irregularities and no need for scaling Technique moderation and consequently there is no need to interfere with the valuation process.
34. In regard to one optional subject (Agriculture & Marketing) no Head Examiner was appointed and Chief Examiner had reviewed only 3 answer scripts out of 222 in paper I and 4 answer scripts out of 279 in paper II and the percentage is hardly 1% to 2%. In regard to another optional subject (Criminology) also, no Head Examiner was appointed even though the number of answer scripts are large. The answer scripts moderated by Chief Examiner is around five percent only. In regard to the remaining sixteen optional subjects (two papers each) and General studies (two paper), we find that the number of answer scripts and number of Examiners are large. The variations exceeding plus or minus 20 marks, are also substantial. We given below the particulars of answer scripts moderated:
Sl. Subject/Paper Total Answer papers Answer papers No. Number moderated by moderated by of (original figures) (Revised figures) answer scripts Head Chief Head Chief Examiners Examiner Examiner Examiner
1. AG & MKTG, 222 0 3 0 3 SERI, Paper-1 2. AG & MKTG, 219 0 4 0 4
SERI, Paper-
2 5. Botany 654 48 20 59 31Paper-1 6. Botany 652 43 26 65 26 Paper-2 11. Commerce 256 24 11 24 30 Paper-1 12. Commerce 256 19 6 19 24 85 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Paper-2 13. Criminology 832 0 43 0 83 Paper-1 14. Criminology 826 0 44 0 99 Paper-2 15. Economics 998 92 10 99 12 Paper 1 16. Economics 995 94 9 97 11 Paper-2 19. Geography 1135 96 5 109 7 Paper-1 20. Geography 1132 103 6 110 9 Paper-2 23. Mathematics 221 9 32 9 37 Paper-1 24. Mathematics 222 34 13 43 13 Paper-2 25. History 4389 403 24 446 24 Paper-1 26. History 4386 293 18 445 28 Paper-2 33. Physics 323 30 17 32 21 Paper-1 34. Physics 322 20 3 21 7 Paper-2 35. Pol.Science 1462 119 14 146 19 Paper-1 36. Pol. Science 1458 0 0 135 14 Paper-2 37. Psychology 336 54 21 54 23 Paper-1 38. Psychology 337 40 3 40 7 Paper-2 39. Public Admn. 2266 158 5 224 6 Paper-1 40. Public Admn. 2252 178 2 227 4 Paper-2 41. Sociology 2572 308 70 321 77 Paper-1 42. Sociology 2555 251 40 276 47 Paper-2 45. Zoology 509 123 73 127 100 Paper-1 46. Zoology 508 96 50 102 98 Paper-2 47. Rl.Devpmnt 565 45 111 45 47 Paper-1 48. Rl.Devpmnt 564 103 138 111 161 86 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Paper-2
51. Anthropology 729 8 137 8 172 Paper-1 52. Anthropology 721 51 77 65 68 Paper-2 55. Kannada 1348 131 13 147 48 Paper-1 56. Kannada 1342 119 8 140 7 Paper-2 57. English 214 20 3 20 6 Paper-1 58. English 214 6 4 32 4 Paper-2 61. Gen.Studies 10493 794 37 1026 43 Paper-1 62. Gen.Studies 10425 887 31 1025 34 Paper-2 The large variation in the figures earlier furnished and subsequently modified as to the answer scripts that were moderated raises a doubt about the actual number of answer scripts reviewed by Head Examiners and Chief Examiners. Be that as it may. In spite of the above, moderation was restricted only to the answer scripts which were reviewed by the Head/Chief Examiners and no effort was made to adopt the scaling technique of moderation by applying an upward or downward revision to all the answer scripts evaluated by the respective examiners. Further, in regard to most of those subjects the random preview was not done to the extent suggested in the guidelines (5% of top level answer scripts and overall random review of 10%). No minutes or record has also been maintained to show whether moderation was done by the Head Examiners/ Chief Examiners in the manner required by the guidelines. They (the answer scripts in the above subjects) therefore require proper review. KPSC having realised the inadequacies/irregularities has now agreed to do the moderation by applying scaling Technique (as stated its memo dated 27-3-2002 filed on 22-7-2002).
36. There are also serious irregularities in the review valuation by one of the Chief Examiner (Prop. K.S.Shivanna) in regard to some candidates in particular, one K.Rameshwarappa and his family members (B.S.Nagaraj and B.S.Triveni) which when disclosed in the newspapers led to the filing of the writ petitions. We extract below the facts which are gathered by the sub- committee constituted by KPSC itself in its investigation and is conclusions in this behalf:
"During the investigation, it came to notice of the committee that apart from Sri. K.Rameswarappa and two other named in the resolution, one more candidate Smt.B.S.Hemalatha with register No.414089 who is also closely related to Sri. K.Rameswarappa was a candidate in the examination in question and she has also been selected. Hence the committee decided to examine her case also. Sri. K.Rameswarappa is 87 OA No. 170/00961/2019 & Ors/CAT/BANGALORE employed as Deputy Director of Food and Civil Supplies. Sri.B.S.Nagaraj is the elder brother of Sri.Rameswarappa's wife. Smt.B.S.Triveni and Smt.B.S.Hemalatha are sisters of Rameswarappa's wife. The academic record of these four candidates is average. For the competitive examination all these four persons chose by the same optional subjects...... On a verification of the answer scripts of these four candidates in respect of General Studies Papers-1 and II and History Papers-I and II. It is noticed that all the four candidates have chosen the very same questions for answering and the answers they have written are almost identical. .....The Head Examiner/Chief Examiner is required to pick up one script from each bundle at random. It is also stated that the scheme of valuation envisages that where the variation between the marks awarded by the Examiner and Head Examiner/ Chief Examiner is more, the Head Examiner/Chief Examiner is required to discuss with and advise the Examiner to ensure that there is uniformity in valuation. The Examiners have stated that in none of the cases in question the Chief Examiner has consulted or advised the Examiners even while increasing the marks in respect of these 4 candidates in question enormously. They have also stated that they do not know how the Chief Examiner has picked up more than one answer script from the very same bundle.....Prof K.S.Shivanna was appointed as Chief Examiner based on the panel obtained by the Commission from the Universities in the State. He was appointed as Chief Examiner for answers written in Kannada medium in respect of General Studies and History papers...The valuation was done on 12 working days. Prof.K.S.Shivanna has evaluated 127 answer scripts as Chief Examiner....In his statement he admitted that he has in the process of moderation in respect of these 4 candidates given marks for writing totally wrong answers which he claims to be by oversight committed carry over mistakes/total mistakes which has resulted in more marks in favour of the candidates and in some cases in respect of these four candidates he has awarded more marks than the maximum mark prescribed for the question. He says all these are bona fide errors. The committee is of the view that having regard to the expertise of prof. K.S.Shivanna in the subject, his long experience as an Examiner and the statements of the Examiners/Head Examiners, the defence of Prof. K.S.Shivanna cannot be accepted. There are few more aspects which have come in the evidence which strengthens this view of the committee.
As already stated, a total of 127 answer scripts only were moderated by prof K S Shivanna in a span of 12 days. But, in his statement he avers that the committed glaring irregularities because of pressure of work and that the was to value large no. of answer scripts but the records prove otherwise.
When the sub-committee scrutinised all the answer scripts picked up by Dr.K.S.Shivanna for moderation, it is noticed that Dr. 88 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Shivanna has awarded abnormally higher marks after moderation to the other 6 candidates namely 1) Leela M, bearing Reg.No.117641 selected for the post of Asst. Commissioner 2) Sri. Ponnappa K.C., Reg.No.415634 selected for the post of Asst. Controller of State Accounts 3) Naveen, Reg.No.110374 not selected for any post 4) Sri Subash, Reg.No.126347 not selected for any post 5) Sri Pratap, Reg.No.109582 not selected for any post 6) Sri.Cauveriappa, Reg.No.108226 not selected for any post.
It is prima-facie noted that their answers, do not merit such high marks from any standard of valuation. Further, Dr.K.S.Shivanna never brought this to the notice of Examiner or Head Examiner, why he has escalated the marks so much. The omissions and commissions found clearly probabalise with the first 4 candidates earlier referred wanted to be brought to the forefront. As far as these six candidates are concerned prima-facie there appears to be a motive to bring these persons some how or other to the eligibility list by Dr.K.S.Shivanna by awarding abnormally higher marks. However, in spite of this four candidates namely (1) Naveen P C, Reg.No.110374 (2) Subhash K G, Reg.No.126347 and (3) Pratap K R, Reg.No.109582 (4) Cauveriappa Reg.No.108226 did not figure in the select list.
Yet another pattern that is seen in the choice of answer script for evaluation by the Chief Examiner Prof.K.S.Shivanna is that wherever he has picked up only one or two answer scripts of a candidate, the difference between the marks awarded by him and that awarded by the examiner has been marginal and there are both increases and reductions. However, wherever he has picked up 3 or more papers, the difference has invariably been on the plus side to the benefit of the candidate. In respect of Sri K Rameswarappa, Sri. B.S.Nagaraj, Smt.B.S.Triveni and Smt.B.S.Hemalatha, the Chief Examiner Prof. K.S.Shivanna has moderated 3 papers each of these candidates and has increased the marks enormously. All these four persons who are closely related are selected with Sri. K.Rameswarappa getting first rank, Sri. B.S.Nagaraj getting second rank and Smt.B.S.Triveni getting fourth rank and Smt.B.S.Hemalatha getting selected as Tahsildar that is Group-B post though not securing glaringly high rank as the other three. By virtue of their high ranks secured Sri.K.Rameswarappa is selected as Assistant Commissioner, Smt.B.S.Triveni is also selected as Assistant Commissioner and Sri. B.S.Nagaraj is selected as Assistant Commissioner of Commercial Taxes. It appears Prof.K.S.Shivanna boosted the marks and selected more than one answer script of the very same candidate in cases other than these 4+6 candidates also only with a view to find a cover for his wrong doing in respect of these four+six candidates.
The evidence collected by the Committee shows that Prof.K.S.Shivanna, the Chief Examiner, Sri. K.Rameswarappa, the beneficiary of the largesse not only for himself but also for his family members and Sri A.K.Monnappa who was the Secretary of the 89 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Commission and without whose connivance it would not have been possible for the Chief Examiner to know the code numbers of the candidates, joined together as a well knit team and all the three have been part of criminal conspiracy. Evidence collected by the Committee shows that Sri. K.Rameswarappa was visiting Sri A.K.Monappa, the Secretary of the Commission very frequently. The regularity of his visits were so frequent that he was not even required to send either a visiting card seeking permission to see Sri. A.K.Monappa or send a chit containing his name to the Secretary seeking the permission to see him. That apart, Prof.K.S.Shivanna was the research guide for the Ph.D. programme of Sri K.Rameswarappa. After then Examination and evaluation was over during September, 2000 these three persons have also undertaken a joint foreign tour. Sri. K.Rameswarappa has given E-mail ID of Prof.K.S.Shivanna as his E-Mail address in the conference papers. The evidence collected by the Committee clearly establishes that Sri. A.K.Monappa has parted with the code numbers of the candidates to Prof.K.S.Shivanna and he has also taken the help of Prof.Shivanna in substitution of some of the answer papers of these four candidates in question. The Committee is of the view that the result of these four candidates requires to be annulled and appropriate action including criminal has to be initiated against the four candidates in question, Sri. A.K.Monappa who was the then Secretary of the Commission and Prof.A.K.Shivanna who was the Chief Examiner in question.
The clinching evidence apart from what is set out above to establish the conspiracy is that as already stated Prof. K.S.Shivanna was only a Chief Examiner in respect of Kannada medium in the subjects of General Studies and History. He also picked up and boosted the marks in respect of Sri B.S.Nagaraj and Smt. B.S.Triveni who had answered the papers in English Medium. When this was confronted to Prof. K.S.Shivanna by the Committee, his answer was Prof. Narasimha Raju Naidu who was the Chief Examiner in English medium in these two subjects was away on those days and the examiner Head Examiner has brought the papers to Prof.K.S.Shivanna and accordingly he has moderated those papers. The evidence before the committee belies this statement of Prof.K.S.Shivanna. At the relevant point of time Prof.Narasimha Raju Naidu was very much present and there was no reason for Prof.K.S.Shivanna to have moderated the papers of Sri. B.S.Nagaraj and Smt.B.S.Triveni. The answer papers were picked up by Prof.K.S.Shivanna himself and they were not given to him by any Examiner or Head Examiner as claimed by him, as already stated in the earlier part of this report. Further on the covering sheet of the answer papers of these candidates there are so many alterations made in the marks awarded to each question which clearly indicates that the effort was to give the requisite marks to these candidates to secure them places at a particular rank in the order of the merit.90 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
One more aspect requires to be noticed here. Prof. Narasimha Raju Naidu who as Chief Examiner for English medium answer scripts of General Studies and History papers went on leave when the valuation was in progress from 24th May. Having regard to the fact that General Studies is a compulsory subject and nearly 50 percent of the candidates take History as one of the optional subjects immediate arrangements were required to be made by a proper order by the Secretary of the Commission appointing some one as Chief Examiner for English medium answer scripts in these subjects. No written order was issued by Sri A.K.Monnappa, the Secretary. However, the enquiries have disclosed that Prof.K.S.Shivanna performed the duties of Chief Examiner in respect of English medium students in General Studies and History on oral instructions of the then Secretary.
37. We have noted below some glaring instances where professor K.S.Shivanna, who random reviewed 127 answer scripts in History (I & II) and General Studies (I & II) as Chief Examiner, has played havoc by awarding abnormally high marks:
Sl. Name Subject Marks Marks Marks awarded
No. awarded awarded by Chief
by by Head Examiner
Examiner Examiner (K.S.Shivanna)
1. Rameswarappa General 59 - 246
Reg.No.414084 Studies
(Category I) Paper-II
History 155 - 262
Paper-I
History 91 - 245
Paper-II
2. Nagaraja B S General 128 - 200
Reg.No.414064 Studies
(Category I) Paper-II
History 170 205 243
Paper-I
History 168 - 230
Paper-II
3. Triveni B S General 174 148 215
Reg.No.414066 Studies
(Category I) Paper-II
History 232 - 244
Paper-I
History 155 - 234
Paper-II
4. B S Hemalatha History 159 - 225
Reg.No.414089 Paper-I
(Category I) History
Paper-II 102 - 302
91 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
General
Studies 134 - 165
Paper-I
5. Reg.No.415634 History 162 - 200
(K.C.Ponnappa) Paper-I
(GM) General
Studies 86 - 160
Paper-I
General 134 - 180
Studies
Paper-II
6. Reg.No.109582 History 112 - 160
(Pratap) Paper-I
(Category 2A) History
Paper-II 90 - 174
General
Studies 86 - 137
Paper-I
General 92 - 150
Studies
Paper-II
In some cases Prof. K.S.Shivanna, as Chief Examiner, while drastically increasing the marks of a candidate in a particular category has also drastically reduced the marks of another candidate, apparently to enable favoured candidates to have a better chance of selection. We may refer to the following instances:
Name/Regn. Subject Examiner Marks Chief
No. awarded Examiner
by Head
Examiner
409001 History-II 139 -- 180
(Category 3A) General 155 172
Studies-I
131377 General 117 -- 147
(Category 3A) Studies-I 153 185
General
Studies-II
111237 General 209 177 139
(Category 3A) Studies-I
As a result the marks of candidates No.409001 and 131377 in category 3A were increased from 955 to 1013 and 902 to 977 were as the marks of candidate No.111237 went down from 1054 to 973.
Name/Regn. No. Subject Examine Marks Chief
r awarded Examiner
92 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
by Head
Examiner
M.Leela History-I 183 - 247
Reg.No.117641 History-II 143 - 200
(SC) General Studies-I 115 - 151
General Studies-II 90 -
117141 (SC) History-I 221 - 194
As a result the marks of candidate (SC) No.117641 went up from 811 to 1049 and candidate (SC) No.111742 went down from 1072 to 1045. Having regard to the number of answer scripts in History (4389 and 4386 answer scripts) and General Studies (10,493 and 10425 answer scripts), it is doubtful whether Prof.K.S.Shivanna who random reviewed in all 127 answer script of History and General Studies could have zeroed in an three papers each of K.Rameswarappa and three members (B.S.Nagaraj, B.S.Triveni and B.S.Hemalatha) or four papers each of Pratap and M.Leela. The inevitable inference is that there have been large scale irregularities where Prof.K.S.Shivanna was involved as Chief Examiner.
38. We are satisfied that having regard to glaring irregularities in random review by Prof. K.S.Shivanna in regard to History (I&II) and General Studies (I&II) and having regard to inadequate and/or improper moderation in regard to other seventeen subjects (two papers each), the entire process of moderation requires to be done afresh in regard to those papers (that is 18 optional subjects and General Studies).
39. In the result, we allow these petitions in part, as follows:-
a. The order dated 6.2.2002 of the K.A.T. in A.No.7901 to 7908/2001 and connected cases declaring that the entire valuation of answer scripts is arbitrary and consequently directing fresh evaluation in terms of para-78 of said order, is set aside.
b. We declare that moderation/random review carried out by the Head Examiners and Chief Examiners in regard to both papers of the following subjects, is inadequate, improper and illegal and quash the same; Agriculture& Marketing, Botany, Commerce, Criminology, Economics, Geography, Mathematics, History, Physics, Political Science, Psychology, Public Administration, Sociology, Zoology, Rural Development, Anthropology, Kannada, English and General Studies. Consequently we direct KPSC to redo a fresh moderation in regard to the aforesaid Eighteen Optional Subjects and also General Studies in the manner suggested by KPSC in para (b) of its memo dated 27.3.2002 extracted below:
"On the basis of random review of answer scripts done in respect of answer scripts evaluated by each examiner average variation shall be arrived at. Wherever the average variation is less than plus or minus 20 general review of the marks awarded need not be done. However, where the average difference is 93 OA No. 170/00961/2019 & Ors/CAT/BANGALORE plus or minus 20 or more, the marks awarded by such examiner shall be increased or decreased by that average in respect of each of the answer scripts evaluated by that examiner. In case the average variation is less than plus or minus 20, but variation in respect of individual answer scripts is plus or minus 20 or more those answer scripts would be subjected to third valuation."
The entire process of moderation shall be done under the supervision of the Secretary of KPSC. It is open to him to have the moderation done at a two-tier level (that is Head Examiner and Chief Examiner) or have it done at only one level (that is Chief Examiner). He shall select and prepare a fresh panel of Head and /or Chief Examiners for this purpose.
c. The evaluation of answer scripts in regard to following papers as moderated by Head/Chief Examiners are upheld:
Sl.No. Subject/Paper
3 AN.HUSB. & V.SC Paper-1
4 AN.HUSB. & V.SC. Paper-2
7 CHEMISTRY Paper-1
8 CHEMISTRY Paper-2
9 CIVIL ENGG. Paper-1
10 CIVIL ENGG. Papeer-2
17 ELECL. ENGG. Paper-1
18 ELECL. ENGG.Paper-2
21 LAW Paper-1
22 LAW Paper-2
27 MECHL. ENGG. Paper-1
28 MECHL.ENGG. Paper-2
29 PHILOSOPHY Paper-1
30 PHILOSOPHY Paper-2
31 GEOLOGY Paper-1
32 GEOLOGY Paper-2
43 STATISTICS Paper-1
44 STATISTICS Paper-2
49 HINDI Paper-1
50 HINDI Paper-2
53 URDU Paper-1
54 URDU Paper-2
59 MANAGEMENT Paper-1
60 MANAGEMENT Paper-2
d. The process of interviews and selection carried out during the pendency of the applications before the KAT are declared illegal;
94 OA No. 170/00961/2019 & Ors/CAT/BANGALOREe. KPSC is directed to revalue the compulsory papers (English and/or Kannada) of those candidates who have approached this Court or Tribunal for such revaluation, before this date; f. After revaluation (as per para (e) above) and moderation (as per para (b) above) as aforesaid, KPSC shall redo the list of candidates to be called for personality test, as per the rules and then proceed with the selection as per Rules. If on revaluation, such candidates are found to be qualified, they shall also be considered for selection of candidates for interview.
g. Parties to bear their respective costs."
41. The applicant submits that at this point of time a new methodology was evolved by the Hon'ble High Court based on submissions made by the KPSC. But the applicant stipulate now that thereby the universalities to be present in evaluation, whether in the form of valuation or re-evaluation, was retrievably lost. But then, on Hon'ble Apex Court upholding the order of Hon'ble High Court vide order dated 6.10.2005, the methodology stipulated by the Hon'ble High Court came to be concretized.
42. The question which arises for this point is that when rightly or wrongly an adjudicatory body has framed a method of evaluation after hearing all the concerned persons who were interested in it at that point of time what is the level of finality to be admitted to it.
43. Apparently after the disposal of the Civil Appeal, a Review Petition was filed. On dismissal of Review Petition, a Curative Petition was also filed, which is also dismissed. Therefore, in normal circumstances, the matter would have settled once for all.
95 OA No. 170/00961/2019 & Ors/CAT/BANGALORE44. The applicant submits that the KPSC completed the exercise of moderation and scaling and announced the final list in April, 2006 and sent to the Government of Karnataka. Apparently the Government of Karnataka accepted selection list furnished by the KPSC and it was published in gazette notification and appointed all successful candidates including the applicant. On 6.4.2006, thus the applicant and other selected candidates, some of whom are applicants herein, were appointed as Assistant Commissioners.
45. Thereafter, it seems that in the year 2007 some people had filed another Writ Petition No. 346 of 2007 before the Hon'ble Supreme Court alleging that moderation and scaling as per the orders in Writ Petition Ns. 12548-12589 of 2002 was not done. But this was allowed to be withdrawn with liberty to approach Hon'ble High Court again.
46. Thereafter, it seems that some Writ Petitions were filed before Hon'ble High Court challenging the methodology of moderation and scaling conducted by the KPSC as unscientific and improper. May be, the Hon'ble High Court at that time thought that probably the moderation and scaling conducted by the KPSC on the direction of Hon'ble High Court itself might be termed as unscientific and improper.
On files it appears that if there was to be a re-evaluation, the evaluation could have been conducted for all the candidates as otherwise the spirit of the competition involved in the Rules of 1997 96 OA No. 170/00961/2019 & Ors/CAT/BANGALORE could not be achieved. Anyhow, vide order dated 2.7..2008, the Hon'ble High Court directed that the matter be taken up by the Tribunal, which at that point of time was the KAT.
47. Now some persons have filed two processes before the Tribunal as Nos. 5290 and 5592 of 2008, which was taken up by the KAT and dismissed by order dated 31.12.2012, which we quote :
"These applications are filedunder Section 19 of the Administrative Tribunals Act, 1985, with a prayer to issue a writ of certiorari or any other appropriate writ or order quashing the notification dated 28.2.2006 (Ann-A15) for the post of Group-A & B made and notified by 2nd respondent-KPSC and declare that the same is done in violation of Rule 11 of the Karnataka Recruitment of Gazetted Probationers (Appointment by competitive examination rules) Rules 1997 and quash the same as illegal, arbitrary and erroneous based on extraneous considerations and in violation of the principles of natural justice; declare that raw (marks before scaling) marks in the main examination and personality test obtained by the candidates and relevant rules be the criteria in the preparation of fresh select list, etc. These applications, coming on for hearing, having been heard and reserved for orders, this day, the Hon'ble Chairman Mr. Justice A.C. Kabbin made the following:
ORDER This batch of applications relates to selection of candidates for the posts of Gazetted Probationers done in pursuance of Notification No.E(1) 15050/PSC/97-98 dated 9.3.1998 (Annexure 'A15).
2. The selection has a long history and has already been considered in earlier applications before this Tribunal, the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court.
3. In A.Nos.7901 to 7908 of 2001 the whole selection process had been challenged and this Tribunal by its order dated 6.2.2002 quashed the selection list directing revaluation. Feeling aggrieved by the said order, the Karnataka Public Service Commission (hereinafter referred to as 'the Commission' for the sake of convenience) filed Writ Petition Nos.12548 & 12549 of 2002 and sought for quashing the order passed by this Tribunal. The selected candidates whose names 97 OA No. 170/00961/2019 & Ors/CAT/BANGALORE had appeared in the provisional select list also filed writ petitions. All the writ petitions were considered together and by judgment dated 11.10.2002 the Hon'ble High Court in Writ Petition Nos.12548 & 12549 of 2002 and connected writ petitions (S-KAT) allowed the writ petitions in part and made the following order:
"In the result, we allow these petitions in part, as follows:
(a) The order dated 6.2.2002 of the Karnataka Administrative Tribunal in Application Nos.7901 to 7908 of 2011 and connected cases declaring that the entire valuation of answer scripts in arbitrary and consequently directing fresh evaluation in terms of Para 78 of the said order, is set aside;
(b) We declare that moderation/random review carried out by the Head Examiners and Chief Examiners in regard to both papers of the following subjects, is inadequate, improper and illegal and quash the same; Agricultural and Marketing, Botany, Commerce, Criminology, Economics, Geography, Mathematics, History, Physics, Political Science, Psychology, Public Administration, Sociology, Zoology, Rural Development, Anthropology, Kannada, English and General Studies.
Consequently, we direct KPSC to re-do a fresh moderation in regard to the aforesaid eighteen optional subjects and also general studies in the manner suggested by KPSC in para(b) of its memo dated 27.3.2002 extracted below:
"On the basis of random review of answer scripts done in respect of answer scripts evaluated by each examiner average variation shall be arrived at. Whatever the average variation is less than plus or minus 20 general review of the marks awarded need not be done. However, where the average difference is plus or minus 20 or more, the marks awarded by such average in respect of each of the answer scripts evaluated by that examiner. In case the average variation is less than plus or minus 20, but variation in respect of individual answer scripts is plus or minus 20 or more those answer scripts would be subjected to third variation."
The entire process of moderation shall be done under the supervision of the Secretary of KPSC. It is open to him to have the moderation done at a two-tier level (that is Head Examiner and Chief Examiner) or have it done at only one level (that is Chie Examiner). He shall select and prepare a fresh panel of Head and/or Chief Examiners for this purpose.
98 OA No. 170/00961/2019 & Ors/CAT/BANGALORE(c) The evaluation of answer scripts in regard to following papers as moderated by Head/Chief Examiners are upheld:
Sl.No. Subject/Paper
3 AN.HUSB. & V.SC Paper-1
4 AN.HUSB. & V.SC. Paper-2
7 CHEMISTRY Paper-1
8 CHEMISTRY Paper-2
9 CIVIL ENGG. Paper-1
10 CIVIL ENGG. Papeer-2
17 ELECL. ENGG. Paper-1
18 ELECL. ENGG.Paper-2
21 LAW Paper-1
22 LAW Paper-2
27 MECHL. ENGG. Paper-1
28 MECHL.ENGG. Paper-2
29 PHILOSOPHY Paper-1
30 PHILOSOPHY Paper-2
31 GEOLOGY Paper-1
32 GEOLOGY Paper-2
43 STATISTICS Paper-1
44 STATISTICS Paper-2
49 HINDI Paper-1
50 HINDI Paper-2
53 URDU Paper-1
54 URDU Paper-2
55 MANAGEMENT Paper-1
56 MANAGEMENT Paper-2
(d) The process of interviews and selection carried out
during the pendency of the applications before the KAT are declared illegal;
(e) KPSC is directed to revalue the compulsory papers (English and/or Kannada) of those candidates who have approached this Court or Tribunal for such revaluation, before this date;
(f) After revaluation (as per para (8) above) and moderation (as per para (b) above) as aforesaid, KPSC shall re- do the list of candidates to be called for personality test, as per the rules and then proceed with the selection as per Rules. If on revaluation, such candidates are found to be qualified, they shall also be considered for selection of candidates for interview.
99 OA No. 170/00961/2019 & Ors/CAT/BANGALORE(g) Parties to bear their respective costs."
4. Later, the Commission filed interlocutary applications seeking permission to carry out fresh moderation/random review in respect of optional subjects as per the methodology laid down by the High Court in para-39(b) of the judgment dated 11.10.2002. That application was partly allowed and moderation/random review in respect of Animal Husbandry and Veterinary Sciences-1 and 2 and Zoology 1 and 2 as per the said methodology was permitted. Later, certain clarifications were sought which was also permitted. Subsequently, the judgment of the Hon'ble High Court was challenged before the Hon'ble Supreme Court and the concerned SLPs were dismissed by the Supreme Court on 6.10.2005 (2005 SCC 688). In pursuance of the direction of the High Court and after further revaluation, the final select list was published under Notification no.Conf.25/2005-06/PSC dated 28.2.2006 (Annexure 'A15'). It is that list that is the subject matter of these applications.
5. The prayer in this batch of applications is:
(1) To quash the select list dated 28.2.2006 (Annexure 'A15');
(2) To declare that the marks before scaling shall be the criteria for the main examination and personality test;
(3) To declare that the selection of those candidates who had not mentioned qualification, reservation, category, preference, etc., as void.
6. A preliminary objection was taken by the Commission that the applications were hopelessly barred by time since the final select list was published on 28.2.2006 whereas the applications have been filed in September 2008. Therefore, I.A.No.V has been filed for condonation of delay on two grounds:
(1) The applicants were seeking details of revaluation/moderation/scalingdown. That took time and that has to be excluded;
(2) That they were pursuing their remedy before the Hon'ble Supreme Court of India in W.P. (Civil) No.346/2007.
7. The said Writ Petition was dismissed by the Supreme Court on 23.7.2007 as withdrawn with liberty to the petitioners therein to approach the High Court. The first applicant and 19 others approached the High Court of Karnataka in W.P.Nos.1088 of 2008 on 21.1.2008. The High Court dismissed the said writ petition on 2.7.2008 holding that the Karnataka Administrative Tribunal was the court of first instance and that the applications be presented before the 100 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Tribunal. Thereafter, on 10.9.2008 the present applications have been filed. Therefore, the applicants have prayed for condonation of delay on the ground that they were pursuing their remedy before a wrong forum and that that period has to be excluded.
8. The objection to these applications taken by the Commission is that only some of these applicants had approached the Supreme Court and also the High Court and that was on the ground that in the light of the judgment of the High Court in SANJAY SINGH Vs. UNION PUBLIC SERVICE COMMISSION, the direction to moderation/scaling was not proper and that cannot be made use of by all the applicants. It is also contended that earlier decision of the High Court regarding moderation/random check, which had become final cannot be re- opened on the ground that in the light of the subsequent decision of the Supreme Court, that needs to be reconsidered.
9. Though arguments were advanced by the learned advocates for some of the applicants on merits in the initial stage, in view of the specific contention taken by the Commission that the reliefs were barred by time, arguments were heard in respect of limitation and this order is being made only on that point.
10. As mentioned earlier, the notification calling for applications was on 9.3.1998 and though the provisional select list was published on 28.9.2001, in view of litigations and the order of the Tribunal quashing the provisional select list and directing revaluation of answer scripts the matter was considered by the High Court and it directed moderation and random check. That order was modified on 4.7.2003 stipulating the procedure for moderation. Though that order was challenged in the Supreme Court in writ petition, the Hon'ble Supreme Court by order dated 6.10.2005 confirmed the order of the High Court and eligibility list was prepared for personality test on 27.11.2005. Objections were filed by the non selected candidates regarding procedure adopted for random check, etc., on 4.12.2005. As is evident from the synopsis submitted by the applicants' learned counsel, the applicants were called for interview between 17.1.2006 and 3.2.2006. Therefore, when the final select list was published on 28.2.2006 and the limitation prescribed under the Administrative Tribunals Act is one year, the applicants have to explain the delay from 28.2.2007 to 10.9.2008.
11. As regards their contention that they were pursuing their remedy before the Supreme Court and later before the High Court, we may observe that the plea taken by them before the Supreme Court was regarding review of the order of the Hon'ble Supreme Court in CHANNEGOWDA's case upholding the direction of the High Court for moderation/scaling-down in the light of the decision of the Supreme 101 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Court in SANJAY SINGH's case. When the order of the High Court had been confirmed by the Supreme Court on 6.10.2005 that cannot be re-opened and that cannot be agitated before this Tribunal on that point.
12. The second prayer to consider the marks before scaling shall be the criteria for the main examination and personality test is not admissible since the decision of the High Court dated 11.10.2002 as modified by order dated 4.7.2003 had been confirmed by the Supreme Court on 6.10.2005. The only ground that could have been urged is that the Commission failed to properly and correctly follow the procedure directed by the High Court regarding moderation/scaling- down. That ground was taken in this batch of applications but not before the Supreme Court. Therefore, for that purpose, it cannot be said that the applicants were pursuing their remedy before the Supreme Court and later before the High Court.
13. Sri N.Devadas, learned senior counsel representing some of the applicants has referred to certain decisions. In RAM UJAREY Vs. UNION OF INDIA (AIR 1999 SC 309) where the litigation had been started before a Court which had no jurisdiction and the application was returned for presentation before the appropriate Bench of the Tribunal it was held that the limitation runs from the date on which the application was returned and made available to the party and not from the date of the order. The delay in re-filing was also condoned in that case in view of the fact that it would be harsh to drive the party out of litigation process which was started 18 years earlier only on the ground of limitation. That was a case of reversion of an employee and the same principle does not apply in respect of selections to a government service. Steps to challenge any selection have to be taken at the earliest to avoid loss of job to the affected parties after considerable period.
14. In the second decision, i.e., J.KUMMADASAN NAIR & ANOTHER Vs. IRIC SOHAN & OTHERS (2009 AIR SCW 1921) the time taken for proceeding bona fide in a wrong forum was held to be excluded.
15. In the third decision, i.e., THE STATE OF KARNATAKA Vs. H.B.MUNIVENKATAPPA (ILR 2007 KAR 1893) delay of nine years seven months in preferring regular appeal was condoned. That was a case regarding the declaration of title to the land and based on the possession for consequent injunction. That principle as observed above will not be applicable in case of selection to a government service.
16. In another decision in CONSOLIDATED ENGINEERING ENTERPRISES Vs. PRINCIPAL SECRETARY, IRRIGATION 102 OA No. 170/00961/2019 & Ors/CAT/BANGALORE DEPARTMENT & OTHERS {2008(7) SCC 169} time during which matter was pursued with due diligence in a wrong forum was held to be excluded.
17. Relying on these decisions, it is argued by Sri Devadas, learned senior counsel for the applicants that the time spent by the applicants in the Supreme Court and the High Court has to be excluded.
18. We may observe that that time spent by such of the applicants before the Supreme Court and the High Court has to be necessarily excluded only in respect of the plea that was taken before those courts. Since the very ground on which the writ petitions before the Supreme Court was filed was for reconsideration of the earlier view, as regards factual aspect that the Commission had not followed the direction of the High Court in moderation/scaling-down, that period cannot be excluded. The ground that has been taken before this Tribunal being additional grounds, the applicants have to explain the delay from 28.2.2007 to 10.9.2008.
19. It is contended that the applicants had sought for certain information which was delayed by the Commission and therefore they could not file the applications in time. It is demonstrated by the Commission that the information so sought for was in July 2007 by one Sri K.R.Khaleel Ahmed and V.Raghu along with three others who are applicants in Applications nos.5567 to 5571 of 2008. Their contentions in these applications are that retotalling ought to have been allowed, that interviews were unfair and that final moderation and scaling down were flawed due to the misinterpretation of the verdict of the Hon'ble Supreme Court, etc. The endorsement given to Sri K.A.Khaleel Ahmed is on 24.8.2007 and it was in response to his application under Right to Information Act given on 13.7.2007. That application itself was beyond the period fixed for presentation of applications before this Tribunal. Therefore, the applicants have failed to show that there was delay in obtaining requisite information.
20. As regards the third relief of declaration that selection of those candidates who had not mentioned qualification, reservation, category, preference, etc., have to be held as void, that relief goes to the validity of applications of certain candidates and practically seeks an investigation to be made. In respect of applications filed before the Commission in 1998 for which final order was passed by the High Court on 11.10.2002 to do moderation/scaling and subsequent modified order dated 10.2.2003 such investigation cannot be directed at this length of time without proper basis. It is submitted that there was a complaint regarding malpractices in the recruitment to Group-A and B posts (Gazetted Probationers) conducted in pursuance of notifications of the year 1998 and 1999 and 2004 and investigation 103 OA No. 170/00961/2019 & Ors/CAT/BANGALORE was directed by the Hon'ble High Court in W.P.No.11550 of 2008 and 9098 of 2009 and connected applications with regard to the same. The investigation was conducted by Criminal Investigation Department and it is stated that many candidates selected were found to have adopted malpractice. With regard to those specific instances, further steps would be decided by the Hon'ble High Court but that cannot be the basis for entertaining these applications on those grounds despite lapse of considerable period.
21. Though certain laxity has to be shown with regard to the delay in filing the applications before the Tribunal, in respect of selections which had become final, immediate steps have to be taken by the aggrieved parties, except where positive material is available to hold that the whole selection process had been vitiated. Such applications should not be entertained after the period of limitation; for allowing such prayers without proper basis after considerable period would affect hundreds of appointees and would upset the administration. The ground which the applicants want to urge is that the order of the High Court in moderation/scaling has not been properly followed. There was ample time for them to contend it before the expiry of one year from the date the final select list was published on 28.2.2006. We find that the reasons assigned for the delay are not satisfactory. As observed above, their remedy being pursued in the Supreme Court and High Court was on a technical ground which had already become final with the dismissal of Civil Appeal nos.6265 to 6275 of 2005 arising out of Civil Appeal nos.6123 to 6112 of 2005.
22. For the abovesaid reasons, we are of the opinion that the applications are barred by time and there is no valid ground to condone the delay. Therefore, I.A.No.V for condonation of delay is dismissed. Consequently, the main applications are also dismissed."
48. But in the meanwhile, some other persons have filed Writ Petition seeking direction to the Government to take appropriate steps on the representation dated 24.05.2012 for vitiating the entire selection process of Group-A and Group B posts held in 1998, 1999 and 2004 batches in the light of final report submitted in the Writ Petition. But it appears that a huge percentage of the selected candidates were not made parties and, therefore, were subjected to some prejudice. In the 104 OA No. 170/00961/2019 & Ors/CAT/BANGALORE meanwhile, it appears that Writ Petition No. 27674/2012 was filed and around 382 vacancies were made / were pronounced wherein against the said candidates no allegations were made and no charges were framed by the CID. Apparently on 16.10.2015, the Hon'ble High Court directed the petitioners herein to implead all persons whose selections are challenged in the Writ Petitions and to webhost a copy of the Writ Petition without issuing notice as per rules. Apparently at this point of time an objection was made to the Hon'ble High Court that the Writ Petition itself is not maintainable as the subject canvassed by it has already finalized by Hon'ble Supreme Court in the Civil Appeal, the Review Petition and the Curative Petition and thus hit by constructive res-judicata.
49. The applicants now contend that the Hon'ble High Court has passed a common order wherein without imputing any fraud against any individual and in fact after virtually exonerating all the individuals and on mere surmises came to the conclusion that the KPSC had committed a mistake, fraud, white color offence and upheld the revised list which was published based on the interim order dated 11.11.2014.
But then they pointed out that the KPSC itself in an affidavit filed in furtherance of the Court Order dated 18.07.2014 took a stand that it is not actually a revised list as Hon'ble High Court has assumed, but a data or information furnished by the KPSC in furtherance to the 105 OA No. 170/00961/2019 & Ors/CAT/BANGALORE directions issued to the State Government vide letter dated 5.7.2013.
But the applicant lamented that Hon'ble High Court in the judgement dated 21.06.2016 had in actuality briefs the Hon'ble High Court's order in an earlier application which was upheld by the Hon'ble Apex Court, and got merged into the orders of the Hon'ble Apex Court and in fact had breached in by devising a new methodology upsetting what has been decided earlier. They would lament that the revised list was exhausted on 11.11.2014 without considering the objections filed by the respondents in furtherance of the order of the Hon'ble Supreme Court in SLP No. 31461 of 2014. Further, they lament that by a wrong interpretation of reservation policy, Hon'ble High Court directed to prepare a list of reserved candidates category from the stage of written examination and thereafter prepare a select list in order to eliminate the selected candidates who have already appointed by the KPSC and that based on the fact finding Committee report to which none of the applicants has had any juncture but had directed to prepare a select list afresh within 2 months from the date of judgment.
We quote from the judgment of Hon'ble High Court in Writ Petition No. 27674 of 2012 and connected matters dated 21.6.2016:
"This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to direct the respondents to take appropriate steps or action on considering the representation i.e., Anenxure-D with regard to the vitiate the entire selection process of Group A & B Post in 1998, 1999 and 2004 batches in the light of final report of investigation submitted by the CID at Annexure-B.
106 OA No. 170/00961/2019 & Ors/CAT/BANGALORE These writ petitions having been heard and reserved for orders, coming on for pronouncement of orders, this day, N.KUMAR J., pronounced the following:
ORDER A classic case of white coloured, educated, highly placed men holding responsible posts in the administration, betraying the confidence reposed in them by the public of Karnataka is the subject matter of these proceedings. Behind the scene, how fraud, illegality, irregularity, deceit, is practiced to manipulate the results of the examination, and some of the selected candidates even before they are born in the cadre, are suffering from the vice of corruption, nepotism, casteism. The facts set out herein will unravel this sordid state of affairs in the Karnataka Public Service Commission, a premier, constitutional authority, constituted to recruit educated people to Civil Services, which is the subject matter of this public interest litigation.
2. The petitioners have preferred these writ petitions seeking a writ of certiorari for quashing the endorsement dated 09.07.2012 at Annexure N issued by the 2nd respondent, a writ in the nature of mandamus directing the respondents to reconsider the representation at - 135 - Annexure - L made by them in the light of the final report of investigation submitted by the CID at Annexure - J and to direct the respondents to take appropriate steps / actions with regard to the vitiated selection process of 1998, 1999 and 2004, Gazetted Group A and B posts.
3. The said writ petitions are filed in the nature of class action or in public interest. Before we deal with the issues arising in these cases for a proper appreciation, it is necessary to notice the background of this litigation.
4. Karnataka Public Service Commission (for short, hereinafter referred to as 'the KPSC') issued a notification dated 09.03.1998 inviting applications for recruitment to the posts of Gazetted Probationers (Group A and B posts) in pursuance of a request of the State Government made on 04.02.1998 to select 415 candidates for Group A and Group B posts. In response to the said notification, KPSC received 85,598 applications. On scrutiny, 79,130 candidates were found eligible for preliminary examination. The mode of selection to these posts is governed by the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examination) Rules, 1997 (for short 'the Recruitment Rules') made by the Government of Karnataka in exercise of power under Section 3(1) read with Section 8 of the Karnataka State Civil Services Act, 1978.
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5. Rule 4 of the Recruitment Rules requires that a combined competitive examination for recruitment to one or more of the services or group of posts (mentioned in Schedule 1 to the Rules) shall be held every year, subject to availability of vacancies, in the manner set out in Schedule II to the Rules. As per the scheme of examination contained in Schedule II to the Rules, the competitive examination comprises of two stages viz.,
1. Preliminary examination (Objective Type) for selection of candidates for the main examination; and
2. Main examination (written examination and personality test) for selection of candidates for various services and posts.
6. The preliminary examination was held on 30.08.1998 and 56,228 candidates appeared for the said examination. The results of the preliminary examination were announced by KPSC on 16.11.1998 and 9,857 candidates were declared eligible for the main examination, keeping in view the prescribed ratio of 1:20 and also to accommodate the candidates belonging to SC, ST and OB classes in the same ratio. The main examination was held between 09.04.1999 and 03.05.1999. On 12.1.2000 the results of the main examination were announced and 2,397 candidates were qualified for personality test (interview). Keeping in view the ratio of 1:5 and accommodating the same ratio of number of candidates belonging to SC, ST and OB classes. 1,209 candidates who had failed in the compulsory papers (Kannada and English) were not considered for ranking. The personality test which was held between 19.06.2000 and 31.07.2000, could not be held due to certain administrative reasons. Subsequently, the Government withdrew the vacancies on 14.08.2000, but again referred back the vacancies to KPSC in June 2001. Therefore, the personality tests were held only in July and August, 2001. The provisional list of selected candidates was published on 28.09.2001 in the Official Gazette.
7. In the meanwhile, in February, 2000, Eight candidates who had appeared for the main (Written) Examination, but had failed in the compulsory papers of Kannada and/or English, filed W.P.Nos.5332- 5339/2000 alleging serious irregularities in evaluation of answer scripts in regard to the main examination and sought a direction for re- valuation of their answer scripts in compulsory subjects and for other reliefs. Another candidate who failed in the compulsory subjects filed W.P.No.7022/2000 seeking a direction to KPSC to revalue his answer script in compulsory English papers. In both the writ petitions, petitioners' Counsel raised several grounds. The KPSC resisted the said writ petitions contending that the examinations had been conducted in accordance with the Recruitment Rules. It denied any irregularity either in conducting the examination or in the valuation of 108 OA No. 170/00961/2019 & Ors/CAT/BANGALORE answer scripts. It pointed out that all the writ petitioners had not failed in Kannada and English papers; that only 3 had failed in English and one had failed in Kannada paper and others had passed the compulsory papers, but did not become eligible for personality test as they did not secure sufficient marks to be called for personality test. KPSC set out the procedure adopted for evaluation of answer scripts in their statement of objections. When the said writ petitions came up for consideration before the learned Single Judge, it was submitted that the issues raised in the writ petitions were of considerable importance and even though the petitioners in the writ petitions had made individual grievances in regard to valuation of their answer scripts, several other infirmities which had been pointed out related to public interest and therefore it was desirable to refer the matter to the Division Bench. The learned Single Judge, therefore, by a considered and detailed order dated 21.03.2000, referred the said writ petitions to the Division Bench.
8. In the meanwhile, 24 other candidates also approached this Court with a similar prayer. Hence, those petitions were also clubbed with W.P.Nos.5332-39/2000 and W.P.No.7022/2000. Before the Division Bench, KPSC pointed out that as recruitment related to State Service, and as the Karnataka Administrative Tribunal was functional by appointment of necessary members, the writ petitions were not maintainable. The Division Bench accepted the said contention and transferred all 33 writ petitions to the Tribunal with a direction to treat the writ petitions as Applications and adjudicate the same in accordance with law. Accordingly, the Tribunal registered the transferred writ petitions as Applications and assigned numbers. Nine other candidates directly approached the Tribunal in Application Nos.8087, 8274, 8275, 8442 to 8446 to 8446 and 8502 of 2001. Petitions transferred by the High Court to the Tribunal and these 9 applications were all clubbed together. In the course of hearing, the Tribunal directed KSPC to produce the following:
(i) The answer scripts of Rameshwarappa and two of his relatives who had secured top ranks, as also the answer scripts of Sheriar Khan and one Virupaksha whose father was a Deputy Secretary of KPSC.
(ii) Model answers.
(iii) The list of Examiners, Head Examiners and Chief Examiners, who had evaluated the answer scripts and tabulated the statements, indicating who had valued the answer scripts of applicants and others.
9. All these documents were produced by KPSC and considered by the Tribunal. The arguments were concluded on 02.11.2001 and the Tribunal reserved the applications for orders.
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10. On 19.11.2001 the Tribunal issued a direction to KPSC to maintain status quo until the disposal of the Applications. The Tribunal also suggested to the learned counsel for KPSC that KPSC may produce the marks assigned to the top 50 candidates in each category (by the Examiner, Head Examiner and the Chief Examiner) and posted the matters to 21.11.2001. KPSC sought certain - 142 - clarification in regard to suggestion of the Tribunal for production of documents. Thereafter the learned counsel for KPSC sought time to consult the Commission and make submissions. For that purpose the matter was adjourned to 22.11.2001 and again to 28.11.2001. On 28.11.2001, the learned counsel for the KPSC submitted that the Secretary of the Commission was away on training at Mussouri for a period of six to eight weeks, and the keys of the almirah in which the records were kept were with him and therefore the information could not be produced immediately. Even otherwise he submitted that the KPSC was unwilling to give the information sought. To that effect, a memo came to be filed. In those circumstances, the Tribunal, by order dated 06.02.2002 allowed the Applications, on the ground that awarding of marks to candidates was not fair and therefore the merit list was vitiated. The Tribunal directed that KPSC shall get the answer scripts freshly valued by appointing the examiners who are in no way interested in the candidates who had taken the examination and it also issued directions as to who should be the examiner, how they should be selected and to formulate a scheme for valuation etc.
11. Feeling aggrieved by the said order, the KPSC filed writ petition Nos.12548-589/2002 and sought quashing of the order passed by the Tribunal. Respondent Nos.1 to 42 were the applicants before the Tribunal and 43rd respondent was the State Government. Several selected candidates, whose names appeared in the provisional select list published by the KPSC, also filed writ petitions challenging the order of the Tribunal. All these writ petitions were clubbed together. When these petitions came up for consideration for the interim prayer on 19.3.2002, the learned Counsel for the KPSC voluntarily produced the marks obtained by the top 50 candidates in each of the categories with an abstract, as also the particulars of moderation (i.e., marks increased/decreased by the Head Examiners/Chief Examiners) in regard to all candidates, who would become eligible for personality test. This was precisely what the Tribunal wanted KPSC to do, which the KPSC declined to do, which resulted in the Tribunal passing the order.
12. After hearing the rival contentions in regard to interim prayer, the High Court directed the KPSC to produce the list of candidates in whose cases the variation of marks was plus or minus 20 or above (Out of 300 marks) in a subject and also to furnish the particulars of cases where the Chief Examiners had done random revaluation with particulars of difference in marks. In response to the same, on 110 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 21.3.2002 KPSC made available for the perusal of the Court, statements showing the subject wise marks awarded by the Examiner, Head Examiner and Chief Examiner where the difference was plus or minus 20 or above with subject wise abstracts.
13. On 27.03.2002 KPSC offered to re-do the moderation and circulated its proposals to all the Counsel. However, as the service of respondents was not complete and as the matter was being heard only with reference to the interim prayer, the said memo was not filed. After service, during the course of final arguments on 22.7.2002, KPSC filed the said memo dated 27.3.2002 offering to redo the moderation, without prejudice to its contentions.
14. It was also submitted on behalf of KPSC that an in-house inquiry was held by a Three Member Sub-Committee of the KPSC in regard to the alleged irregularities, and a report had been submitted to the effect that the results of the ten candidates were vitiated by malpractice and recommending the cancellation of their results after following the necessary procedures and further recommending certain other steps. It assured that it would also initiate action in terms of the said report. A copy of the said report was made available to the High Court for perusal.
15. However the contesting respondents (applicants before the Tribunal) were not however willing for restricting the revaluation/moderation in the manner suggested by KPSC in its memo filed on 22.7.2002. After considering the aforesaid material and hearing the learned counsel appearing for the parties, the High Court formulated the following points for consideration:
1. Whether the applications are liable to be rejected for non-joinder of selected candidates as parties?
2. Whether there were any irregularities in the evaluation/moderation?
By a detailed order referring to several judgments of the Apex Court, the High Court held that there was no need for the applicants before the Tribunal to implead all the candidates who were qualified for the personality test or all selected candidates.
16. Insofar the irregularities in the evaluation and moderation, after taking note of the judgment of the Apex Court, the guidelines followed by the KPSC, by a reasoned order, the High Court held that mere doubts and apprehension without factual basis would not lead to inference that the valuations were not done properly. Thereafter they examined the material placed on record and on such verification, they found that in respect of 7 optional subjects (out of total 30 optional subjects) viz., Animal 111 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Husbandry, Civil Engineering, Electrical Engineering, Mechanical Engineering, Philosophy, Geology and Urdu, a candidate had to write two papers each on these subjects. It was held that as the variation of marks had not exceeded plus or minus 20 marks (out of 300 marks) in regard to any answer scripts, there was no need to adopt any scaling technique, moderation and therefore, the High Court declined to interfere with the valuation in respect of the said papers.
17. In respect of 4 optional subjects viz., Law, Statistics, Hindi and Management, the variation beyond plus or minus 20 marks (out of 300 marks) was nil in regard to some papers and very marginal in other papers and therefore, the High Court held there was no need to adopt any scaling technique moderation. Accordingly they declined to interfere with the valuation in respect of the said papers also.
18. In regard to the optional subject Chemistry also the variation was only in 3 answer scripts beyond plus or minus 20 marks and therefore they concluded that there were no irregularities and was no need for scaling technique moderation and consequently they declined to interfere with the valuation process. However, in regard to optional subjects Agriculture and Marketing, Criminology and other 16 optional subjects and General studies, the variation exceeded plus or minus 20 marks, which were substantial. In the judgment they have given a tabular column pointing out the marks assigned and the re-valuation marks assigned by Head Examiner, Chief Examiner as to what is the original marks, what is the revised figures and then held that the large variation in the figures earlier furnished and subsequently modified, as to the answer scripts that were moderated raises a doubt about the actual number of answer scripts reviewed by Head Examiner and Chief Examiner. In respect of such variation no effort was made to adopt the scaling technique of moderation by applying an upward or downward revision to all the answer scripts evaluated by the respective examiners. Further, in regard to most of the subjects, the random review was not done to the extent suggested in the guidelines i.e., (5% of top level answer scripts and overall random review of 10%). No minutes or record has also been maintained to show whether moderation was done by the Head Examiners/Chief Examiners in the manner required by the guidelines. The High Court held that the answer scripts in the aforesaid subjects required proper review. In fact, KPSC having realized inadequacies/irregularities also agreed to do the moderation by applying scaling Technique (as stated in their memo dated 27.03.2002 filed on 22.07.2002).
19. The High Court also found that there was serious irregularities in the review valuation by one of the Chief 112 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Examiners (Professor K.S. Shivanna) in regard to some candidates in particular, one K. Rameswarappa and his - 150 - family members (B.S.Nagaraj and B.S. Triveni), which when disclosed in the news papers led to the filing of the writ petitions. In fact the facts which were gathered by the subcommittee constituted by KPSC itself in its investigation and the conclusions were extracted in the said order. After noting the same it was held that Professor K.S. Shivanna, who randomly reviewed 127 answer scripts in History (I and II) and General Studies (I and II) as Chief Examiner had played havoc by awarding abnormal high marks in the table in tabular column. The revised marks awarded are clearly mentioned. Further, the High Court noticed that in some cases, Professor K.S. Shivanna as Chief Examiner while drastically increased the marks of a candidate in a particular category also drastically reduced the marks of another candidate, apparently to enable favoured candidates to have a better chance of selection. The particulars are furnished. As a result, the marks of candidates No.409001 and 131377 in category 3A were increased from 955 to 1013 and 902 to 977 whereas, the marks of the candidate No.111237 went down from 1054 to 973. As a result the marks of candidate (SC) No.117641 went up from 811 to 1049 and candidate (SC) 11742 went down from 1072 to 1045. Having regard to the number of answer scripts in History (4389 and 4386 answer scripts) and General Studies (10493 and 10425 answer scripts), it is doubtful whether Professor K.S. Shivanna, who did random review in all 127 answer scripts of History and General Studies subjects could have zeroed in three papers each of K.Rameshwarappa and three members (B.S.Nagaraj, B.S.Triveni and B.S.Hemalatha) or four papers each of Pratap and M. Leela. Therefore final inevitable inference was to the effect that there had been large scale irregularities where Professor K.S. Shivanna was involved as Chief Examiner.
20. On a closer scrutiny of the aforesaid material and the report submitted by Professor K.S. Shivanna, the High Court was satisfied that there were irregularities in the random review of History (I and II) and General Studies (I and II) by Professor K.S.Shivanna and having regard to inadequate and/ or improper moderation of other seventeen subjects (two papers each), the entire process of moderation of more papers (i.e., 18 optional subjects and General Studies) was required to be done afresh. Therefore, it allowed the writ petitions in part and gave several directions to the KPSC. It directed fresh evaluation in terms of para 78 of its order, directed KPSC to re-do a fresh moderation in regard to the Eighteen optional subjects and also General Studies in the manner suggested by KPSC in para (b) of its memo dated 27.3.2002. It also directed the KPSC to revalue the compulsory papers in (English and/or Kannada) subjects in 113 OA No. 170/00961/2019 & Ors/CAT/BANGALORE respect of those candidates who approached this Court or the Tribunal for such revaluation before the date of the order and after revaluation and moderation the KPSC should redo the list of candidates to be called for personality test, as per the Rules and then proceed with the selection as per the Rules. If on revaluation, such candidates were found to be qualified, they should also be considered for selection of candidates for interview.
21. By an order dated 10.2.2003 I.A.III filed by KPSC on 11.11.2002 for clarification of the order dated 11.10.2002 came to be rejected. I.A.IV filed by KPSC was allowed in part, accepting the request of KPSC to carry out the moderation/random review in respect of the 4 papers i.e., (Animal Husbandry and Veterinary Science - I and II and Geology - I and II). Again one more application was filed as per I.A.5 seeking some clarification regarding the method of scaling and it was also clarified.
22. Aggrieved by the said order of the High Court, the unsuccessful candidates Dr.K. Rameshwarappa and others preferred a Special Leave Petition before the Hon'ble Supreme Court. However KPSC accepted the said judgment. The Hon'ble Supreme Court in Civil Appeal Nos.6172- 6222/2005, 6313/2005 and 6223-6312/2005 after hearing all the parties held that they were satisfied that no interference was called for as the High Court had taken care to safe guard the interest of all concerned, to rule out the possibility of any injustice directions have been issued to deal with the peculiar facts of the case. Therefore Civil Appeals came to be dismissed on 6.10.2005.
23. Subsequent to the order passed by the Hon'ble Supreme Court affirming the order passed by this Court, in terms of the direction issued in the writ petition, the KPSC conducted preliminary examination as well as main examination and announced the new eligibility list of 1932 candidates for personality test on 26.11.2005. The KPSC conducted the personality test during the period from 28.12.2005 to 08.02.2006. On 13.02.2006, KPSC published provisional selection list of 383 candidates and also called for objections to that list. Objections were filed. On consideration of the said objections, the KPSC published the final selection list of 383 candidates on 28.02.2006. Thereafter, the said final selection list was forwarded to the Government for appointment. The candidates whose name did not figure in the final list, challenged the final selection list before the Karnataka Administrative Tribunal in March, 2006. The said applications are pending before the Tribunal even to this date.
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24. As no interim order was passed by the Karnataka Administrative Tribunal, the Government proceeded to issue appointment orders to 383 selected candidates and accordingly, they were appointed for the post in various departments of the Government. The petitioners herein filed WP No.11550/2008 seeking a writ of mandamus directing the Central Bureau of Investigation to thoroughly enquire into the whole selection process of the years 1998, 1999 and 2004 batches, keeping in view the points that are raised in this writ petition and as per the recommendation of KK Mishra Committee's report at Annexure- V and to take suitable action.
25. In para 1 of the said writ petition, it is stated that common question of law and facts are involved in this writ petition. Although no relief is claimed by the petitioners, separate and individual Court fee is paid in the - 156 - writ petition. In para 21, they have contended that the issue of illegalities and irregularities raised in the writ petition are very grave and affect the lives of not only the meritorious candidates, but also the people of the State. They could be brought out only on thorough and impartial investigation by premier investigating authority, i.e., the Central Bureau of Investigation. The petitioners had approached various authorities of the State by making representation containing the details mentioned in the writ petition seeking thorough enquiry by Central Bureau of Investigation, but none of the authorities has taken any steps in this regard. Having no other alternative of getting substantial justice, the petitioners have approached this Court invoking plenary powers.
26. In the writ petition, they have set out selection process in brief and the irregularities committed in the selection during 1998 batch and set out the process of candidates selected without writing the examination. For this, no corroborative information have been given by KPSC to the Hon'ble High Court of Karnataka. It is the contention of petitioners that the KPSC has buried the truth and has mislead the High Court which has resulted in grave loss to the meritorious candidates. The candidates are appointed under reserved category without getting validity certificate, the validity certificate is issued without necessary enquiry and valid material. The candidates who are not in the merit list, are selected by caste manipulation during the preparation of eligibility list for the personality test. The discrepancies are in the selection list, ratio in calling for personality test, in accepting the reserved caste/category/income certificate of the candidates, in selection of the candidates without mentioning their qualification, in selecting candidates who are over age etc., The action of respondent No.1 shows illegal nexus between the individual 115 OA No. 170/00961/2019 & Ors/CAT/BANGALORE candidate and respondent No.1 in accepting bogus certificates, discriminatory treatment. Accordingly, they pointed out the irregularities in 1999 and 2004 selection and they contend that the information furnished by them is only the gist of matter and therefore, they wanted an enquiry by the independent agency like Central Bureau of Investigation.
27. When these writ petitions came up for consideration before the learned Single Judge on 16.02.2009, after hearing the learned Counsel for the petitioners, the Court observed as under:
"Though the petitioners have not been selected and it is submitted that they have already approached the Karnataka Administrative Tribunal for individual relief's, in this writ petition the petitioners want a direction to the Central Bureau of Investigation to unearth the fraud which is going on in the selection process. It is in the nature of class action. Therefore, it would be appropriate that this writ petition be treated as a Public Interest Litigation and accordingly dealt with.
Hence, petitioners are permitted to file one more set of papers and thereafter, office was directed to post it before the Court dealing with Public Interest Litigation."
28. On 12.03.2010, when the matter was listed before the Division Bench of this Court, the learned Government Advocate accepted notice for the Government. The petitioner's Counsel was permitted to take out notice on the standing counsel for respondent No.2 and the matter was ordered to be listed, next week. On 16.12.2010, when the matter was listed before the bench, presided by the Hon'ble Chief Justice, the Government placed on record the report of Sri. K K Mishra, the Additional Chief Secretary and Principal Secretary to the Government, Commerce and Industries Department. Thereafter, the learned Principal Government Advocate submitted that the Government would order for investigation into the matter through the CID. The said suggestion was accepted by the Court as fair and reasonable. Thereafter, the Court directed the State Government to get the matter investigated through the CID by ensuring that the investigation is carried out by the Officer not below the rank of Deputy Inspector General of Police.
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29. This Court was of the view that the investigation process deserved to be monitored on regular basis. Therefore, they nominated Hon'ble Mr.Justice Ajit J Gunjal, the then sitting Judge of this Court to monitor the investigation. For the aforesaid purpose, they directed the authorities to file all papers produced during the process of investigation. Further, they directed that the investigating officer should present for the consideration of Hon'ble Mr.Justice Ajit J Gunjal, the entire investigation carried out on fortnightly basis. Further, they observed that the Hon'ble Mr.Justice Ajit J Gunjal should record his synopsis on the investigation file, when the same was placed before him on every alternative Friday. It was made clear that it was also open to him to point out the deficiencies and other ancillary avenues, that were required to be probed during the on going process of investigation. They expected that the report should be presented to the Court by the CID as expeditiously as possible not later than 31.03.2011. They directed the office to list the writ petitions on 05.04.2011.
30. In the meanwhile, the candidates who were successful, filed petition seeking review of the said order dated 16.12.2010. The said review petition was ordered to be listed along with writ petitions on 05.04.2011. On 24.05.2011, the enquiry report alongwith annexures comprising two volumes was filed on behalf of the respondents in Court. It was taken on record subject to all just exceptions. Counsel for respondent No.2 undertook to furnish the copy of enquiry report along with annexures to the learned Counsel for the petitioner. On 21.06.2011, learned Counsel for the petitioners expressed their agitation against the report based on the enquiry conducted by the Criminal Investigation Department, Bengaluru. They submitted that the report itself was not sufficient and the investigation could not be carried out owing to paucity of time. The report is in respect of the allegation made in the writ petition. Though extensive material has been furnished by the petitioners to the investigating agency, no investigation was carried out on the basis of the material furnished.
31. The learned Addl. Government Advocate took time to enable him to examine the matter further and to obtain instructions, if necessary. On 12.07.2011 learned Advocate General sought adjournment stating that the fresh enquiry was sought to be conducted by registering a case. Two weeks time was granted on 23.08.2011. Sri.B A Padmanayana, Deputy Inspector General of Police, CID, Bengaluru filed the affidavit dated 20.08.2011, wherein, he stated that the entire investigation process would be completed and the report would be submitted within six months from the said date. The said affidavit reveals that the Hon'ble Mr.Justice Ajit J Gunjal the sitting Judge of this Court was being kept abreast of the progress in the investigation. The Court felt when the scope of investigation had been enlarged, it might not be possible for the sitting Judge of this Court to devote the time required to monitor the investigation. Accordingly, at the joint 117 OA No. 170/00961/2019 & Ors/CAT/BANGALORE request of learned Counsel for rival parties, Hon'ble Mr.Justice Mohammed Anwar, the former Judge of this Court was nominated to monitor the investigation process.
32. When the report was submitted by CID, it was made clear in the said order that in the process of investigation, it was open to the petitioners or any other persons to provide information as well as the material connected with the process of investigation to Hon'ble Mr.Justice Mohammed Anwar. Likewise, the investigating agency should report to the Hon'ble nominated judge on every alternative day so as to bring to his notice the progress in investigation and also enable him to monitor the investigation by guiding the investigating officer, if necessary. Accordingly, all the writ petitions and review petition stood disposed of in the aforesaid terms. In view of the disposal of the main writ petitions, all pending miscellaneous applications were disposed of as they did not survive for consideration. On request made for extension of time, two weeks time to file final report was granted on 20.03.2012. On 20.04.2012, the report of the Forensic Science Laboratory, Bengaluru as well as Truth Labs of Hyderabad were placed on record alongwith the Investigating Report. In fact, chargesheet has also been filed on the basis of investigation report. IA.II/2012 in W.P.No.9098/2009 came to be dismissed as infructuous. However, it was made clear that if the petitioners were still dissatisfied, liberty was granted to them to approach the Court by way of fresh proceedings. Accordingly, the said proceedings came to an end.
33. It is pertinent to point out at this stage that based on the CID report, chargesheet was filed against the persons who indulged in illegalities. In fact, in the covering letter addressed by the office of Director General of Police to the Chief Secretary, it was stated that certain irregularities which attracted departmental action were noticed during the course of investigation apart from the criminal acts punishable under IPC. A report was prepared covering irregularities which came to light during the course of investigation in selection of 1998, 1999 and 2004 batches. In the letter addressed on 09.04.2012 by the Director General of Police to the Chief Secretary, it was mentioned that the detailed investigation disclosed as under:
"A detailed investigation has disclosed that:
1) Accused Dr H N Krishna is punishable for offences U/s 418, 465, 468, 471, 506 r/w 109, 120(b) IPC.
2) Accused Ms Asha Parveen is punishable for offences U/s 465, 468, 471, 420, 120(b) IPC.
3) Accused Ms Salma Firdose is punishable for offences U/s 465, 468, 471, 420 IPC 118 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
4) Accused Sri K Narasimha is punishable for offences U/s 465, 471, 468 R/w 120(b) IPC
5) Accused Sri P Gopi Krishna is punishable for offences U/s 465, 468, 471 R/w 120(b) IPC
6) Accused Sri M B Banakar is punishable for offences U/s 465, 468, 471 R/w 120(b) IPC In this regard, chargesheet is submitted to the jurisdictional Hon'ble I ACMM Court which is pending trial vide CC No.8400/2012 and posted to 28/06/2012 for hearing.
Investigation was also conducted in the light of the allegations levelled in writ petition Nos.11550/2008 and No.9098/2009 filed by the petitioners namely Sri Khaleel Ahamed and others and Sri B V Umesh respectively covering the whole process of selection as directed by the Hon'ble Court.
Certain irregularities which attract departmental action were noticed during the course of investigation apart from the criminal acts punishable under IPC. A report is prepared covering irregularities which came to light during the course of investigation in selection of 1998, 1999 and 2004 batches. This report in three volumes (report and two volumes of annexure) is herewith being submitted to take appropriate action as deem fit."
34. As no follow up action was taken in terms of CID report, the petitioners herein made a representation on 24.05.2012 as per Annexure-L. In the said representation to the Chief Secretary set out the important facts which were unearthed by CID from which, it is clear that there has been a large scale illegalities, irregularities, malpractice, arbitrariness and violation of directions of the Hon'ble High Court of Karnataka, which has resulted in vitiation of whole selection process. Thousands of candidates throughout the State have suffered due to this illegalities and irregularities. The meritorious candidates have lost to the unscrupulous elements within and outside the system. The people of the State are suffering due to fact that they are being governed and administered by such unscrupulous elements who have 119 OA No. 170/00961/2019 & Ors/CAT/BANGALORE been selected through illegal, subversive, irregular and arbitrary methods. Therefore, they requested the Government to take corrective action by scrapping/quashing the selection list of Group A and B posts (Gazetted Probationers) for 1998, 1999 and 2004 batches in toto and to order for re-doing selection as per law in consonance with established principle of selection and also strictly in compliance with the orders/directions of the Hon'ble High Court of Karnataka in WP No.12548-12589/2002, strictly following the reservation and ratio policy and applying rules appropriately in the selection including personality test and to take immediate steps to stop all proceedings pertaining to promotions of those candidates selected in the batches of 1998, 1999 and 2004 and not to promote any person appointed on the basis of said vitiated selection.
35. The said representation was forwarded to the Chief Minister on 12.6.2012 by the Prl. Secretary, Department of Personnel and Administrative Reforms. The Under Secretary to DPAR issued an endorsement on 9.7.2012 informing the petitioners that in the order dated 20.4.2012, High Court of Karnataka which dealt with allegations of irregularities in the selection process of 1998, 1999 and 2004 Gazetted Probationers Posts, had not quashed the selection made to the Gazetted Probationers Posts, 1998, 1999 and 2004 and that it had not ordered for any review of the aforesaid selection lists, hence there was no scope for favourably considering the request of the petitioners. Thus, according to the petitioners, in spite of the Government order, in spite of the CID report, request made by the Inspector General of Police to the Secretary and the order of the Court, no action was taken by the Government. Therefore they were constrained to file these present writ petitions for the relief as set out above.
FACTS IN BRIEF :
36. The petitioners were aspiring candidates to the posts of Group-A and Group-B (Gazetted Probationers). The applications for the selection of the said Group-A and GroupB posts were called in three batches by gazette notifications in the year 1998, 1999 and 2004 respectively (hereinafter for the sake of convenience, they are collectively referred to as 'the three batches' and separately as 'the batch of that year') Petitioners and few others approached this Hon'ble High Court in W.P.No.11550/2008 seeking a CBI enquiry in respect of the three selection batches. W.P.No.11550/2008 was treated as PIL, as it was in the nature of class action, vide orders of this Hon'ble Court dated 16.02.2009. The petitioners filed the said writ petition on the basis of large number of documents obtained under the Right to Information Act, newspaper reports, Rules, Regulations and report of Sri. K.K. Mishra, the then Addl. Chief Secretary and Principal Secretary to Government, Commerce and Industries Department, who had initially done an enquiry regarding the irregularities and illegalities during the selection process of 1998. In the said report of Sri. K.K. 120 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Mishra, it was opined that a thorough and in depth investigation was required and what had come to the surface was only the proverbial tip of the ice berg. The Hon'ble Court by order dated 16.12.2010 ordered for an investigation by the CID under the monitorship of a Judge of the High Court of Karnataka, with regard to the three selection batches.
The CID filed its report on 23.5.2011 before the Court. An affidavit detailing the modalities of the enquiry was filed. In the affidavit, it was undertaken that the investigation would be conducted by the DIG. A Former Judge of this Court was appointed to monitor the investigation process till the submission of the report by CID. The Government submitted the final report and the other reports to this Court on 20.4.2012. Accordingly, the writ petition came to be closed with liberty to the petitioners to approach the Court by way of fresh proceeding, if they are still dissatisfied. The said order was passed on 20.4.2012. In the writ petition, the petitioners have set out in paragraph 13 the findings/observations contained in CID report:-
a. The KPSC has violated the orders of the Hon'ble High Court of Karnataka in W.P.No.12548-12589/2002, with regard to the moderation and scaling of answer scripts, which has resulted in the vitiation of the entire selection. In the words of the report" "This wrong step of KPSC has resulted in tilting of marks and ultimately results. It is serious violation of Hon'ble High Court order and a serious lapse".
b. The standard applied by the KPSC in the selection varied from candidate to candidate i.e., the selection process was done arbitrarily. c. Grave mistakes are noticed in the Kannada and English versions of the question papers which has resulted confusion in the candidates. d. It is also observed that candidates from one particular category have been given more weightage. As per the report: "The perusal of the three lists of the candidates after the Personality Test gives an impression that certain category candidates are given more weightage".
e. The CID has also categorically observed that liberal marks are given to some candidates who had scored low marks in Written Examination and low marks are given to the candidates who has scored high marks in the Written Examination.
f. The then Chairman Dr. H.N. Krishna, in connivance with candidates and other officials of the KPSC has committed illegalities in the selection process, ranging from illegally favouring certain candidates, threatening meritorious 121 OA No. 170/00961/2019 & Ors/CAT/BANGALORE candidates, wrongly disqualifying eligible candidates, accepting false-fabricated-bogus certificates to favour candidates of his choice, cheating, criminal intimidation, using forged documents and genuine, criminal conspiracy etc., g. There have been instances of category violations.
h. Some of the selected candidates have submitted forged-fabricated documents and have got selected.
i. That, KPSC has destroyed vital documents, including answer scripts, rolls etc.,
37. The CID, Karnataka registered a case and filed charge-sheet in C.C.No.8400/2012 before the learned 1st Addl. Chief Metropolitan Magistrate, Bangalore against certain persons who were responsible for the illegalities and irregularities which came to light during the said investigation. The CID addressed a letter to the Chief Secretary, Government of Karnataka enclosing the copy of the final report and had summarized the chronology of the initiation of the investigation, the action taken, including the initiation of criminal proceedings, filing of charge-sheet etc., When no action was taken in terms of CID report and letter written by DIG of CID, the petitioners made a representation to the Government to take action. Relevant portion of the said representation reads as following:
"a. Take corrective action by scrapping/quashing the selection list of Group 'A' & 'B' posts (Gazetted Probationers) - 1998, 1999 & 2004, batches in too; and b. To order for redoing the selection as per law, in consonance with established principles of selection and also strictly in compliance with the orders/directions of the Hon'ble High Court of Karnataka in W.P.Nos.12548 - 12589/2002, strictly following the reservation and ration policy and applying the Rules appropriately in the selection, including in the Personality Test; and c. To take immediate steps to stop all proceeding pertaining to promotions of those candidates selected in the batches of 1998, 1999 & 2004 and not to promote any person appointed on the basis of the said vitiated selection; and d. To grant justice to the petitioners by upholding the natural justice."
122 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
38. Sri. K. K. Mishra in his report has opined that a thorough investigation was required to unearth the large scale irregularities, the Government of Karnataka has not done so. Only when some of the petitioners herein, along with others approached this Court seeking a CBI enquiry, then the Hon'ble Court ordered for an enquiry, initially with the monitoring of a Hon'ble Judge of this Hon'ble Court and later under a former Judge of this Hon'ble Court, the investigation was carried out. Initially the investigation did not commence even after three months of ordering of the same. Only when this Court ordered that the report should be positively submitted before 24.05.2011, the report was filed. When it was noticed that the investigation was not carried on thoroughly and was not according to letter and spirit of the order dated 16.12.2010, this Court ordered for a thorough enquiry and gave six months' time to submit the final report. With much reluctance, the final report came to be submitted on 20.4.2012. When no action was taken, the petitioners gave representation at Annexure-L. The respondents very casually issued an endorsement, which reads thus:
" : ಆ ಇ 113 ನ 2012 ಂಕ: 9.7.2012
ಂಬರಹ
ಂಕ 24.05.2012 ಸ ರದ ಖ
ಯ ದ ಯವ , ಂಕ 21.05.2012 ಸ ರದ
ಪ ನ ಯ ದ , ಬಂ ಮ ಆಡ ತ ರ ಇ
ಇವ ಸ ವ ಮ ಮನ ಗಳ ಕ ಗಮನ ಯ .
1998, 1999 ಮ 2004 ಷನ ಗಳ ಆ
ಪ ಯ ನ ಎನ ದ ಅಕ ಮಗಳ ಬ ನ ಉಚ
ಲಯ ೕ ವ ಂಕ 20.04.2012ರ ಆ ಶದ
ಕ ಟಕ ೕಕ ಆ ೕಗ 1998, 1999 ಮ 2004
ಷನ ಗ ನ ದ ಆ ಪ ಯ
ರ ಪ ಸ ಇ ದ ಂದ ಮ ಲ ಂಡ ಆ ಪ ಯ ನ
ಆ ಪ ಗಳ ಪ ಷ ಶನ ೕಡ
ಇ ದ ಂದ ಮ ಮನ ಗಳ ರಸ ಸ
ಆಸ ದ ಲ ಂ ಸ .
( ಗಳ ಎ )
ಸ ರದ ಅ ೕನ ಯ ದ
ಬಂ ಮ ಆಡ ತ ರ ಇ
( ಯಮಗ - 1)
ಇವ ,
ೕ ಶ ೕರ ಕಮ ಕರ ಂವರ,
ಮ : 364, 23 ,
ಎ .ಎಮ. ಐ. . .
123 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
2 ಮಹ , ಯಲ ಕ5 ತ
ಂಗ - 64."
39. Till today, the respondents have not taken any action on the administrative side with regard to the irregularities which resulted in the vitiated selection of ineligible candidates. The candidates, who got selected in the said vitiated selected process, are in the services of the State, they are occupying high and influential posts in the Government. Vested interests are preventing the respondents from taking any action. The respondents are duty bound to take appropriate actions, uphold law, fair play and justice and are under oath of the Constitution not to act arbitrarily, capriciously and unjustly. It appears that the respondents will not take action unless so ordered by this Court.
40. During the early proceedings which lead to the initiation of enquiry, and during and after enquiry, general public of the State watched with great expectations. The print and electronic media gave extensive reporting of the happenings. This is testimony to the fact that the general public is keenly interested in the out come of the exposure brought out by the enquiry. In these circumstances, the petitioners have preferred this writ petition contending that the Government has not taken any action on the basis of CID report in respect of irregularities, illegalities pointed in the said report. Secondly, in all the three selections, KPSC did not follow the ratio in which the candidates had to be called for the written examination and personality test and the process of selection ran counter to rules as well as the Government orders passed in this regard. Thirdly, it was contended that when the order of this Court and the Supreme Court prescribed 10% as moderation for answer scripts, though KPSC undertook moderation in respect of question papers more than 10% for the purpose of preparing the list of eligible candidates, they confined this exercise only to 10%. Even though patent illegalities were apparent from the said marks in respect of answer scripts which were evaluated more than 10%, they were not taken into consideration and it was brushed aside.
41. After service of notice of this writ petition, the learned Advocate General appearing for the State on 24.4.2013 submitted that in the peculiar facts and circumstances of the case, regardless of the pleas and prayer of the petitioners, the State Government was required to take a stand in respect of the officers, who were inducted into service after the process of selection which was, now subject matter of prosecution in the criminal Court. Therefore, he requested for some time to deliberate on the issue and place before the Court, the actions proposed to be taken by the State Government without or after appropriate orders of this Court.
124 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
42. On 12.8.2013, the learned Addl. Advocate General Sri. Kantharaj, submitted that even as the statement of objections on behalf of respondent Nos.1 and 2 is already filed, without prejudice to the contentions contained therein, the Government had initiated the exercise of collecting information about the recruitment and appointment of certain candidates who prima-facie, appeared to have been beneficiary of the malpractices and criminal offences alleged to have been committed during the recruitment process. He submitted that necessary data for the purpose of correlating names of such appointees with their registration numbers and code numbers during the process of selection was being called for from the KPSC and unfortunately it was felt that co-operation was not being extended by that institution. He therefore pointed out and submitted that KPSC was required to be joined as party respondent and directed to cooperate with the limited enquiry being conducted by the State Government for the purpose of identification of the appointees, who were selected and recruited during the process of selection in question. Accordingly, the KPSC was ordered to be impleaded as partyrespondent No.3 and notice was directed to be issued, to K.P.S.C. in order to afford an opportunity of hearing and for issuance of appropriate direction. It was made clear that it will be open to KPSC to supply all the necessary information as proposed to be and demanded by the State in the interest of expeditious hearing of these matters.
43. On 26.8.2013, the Karnataka Public Service Commission appeared through learned Senior counsel Sri. P.S. Rajagopal, who stated on instruction, that the data and information required as per the previous order dated 12.8.2013, as also such information as could be called for by the State, would be supplied to them, within a period of one week from the date of request of the Government. However, the data stated to be necessary, as recorded in the previous order, shall be supplied even without any further request within a period of one week from said date.
44. On 05.09.2013, a memo filed on behalf of respondent No.3-KPSC along with a sealed cover of the data supplied by them to the State Government was taken on record. KPSC also submitted in triplicate the tabulated statements of details of the candidates who were called for personality test during the selection process.
45. The order dated 20.09.2013 passed in this case discloses that it was submitted and broadly agreed at the bar that in view of the allegations made and the grievances voiced on behalf of the petitioners, there appears to be three broad areas and stages wherein irregularities are alleged to have been crept in during the recruitment and selection process conducted by respondent No.3 in the year 1998, 1999 and 2004. Those three areas or stages consist of evaluation of marks and moderation of marks obtained by the candidates at the time of main Written Examinations and subsequently 125 OA No. 170/00961/2019 & Ors/CAT/BANGALORE at the stage of awarding marks during personal interview of the candidates, who were called for interview on the basis of the marks obtained, moderated and modified after the main Written Examinations. The third stage arose after the matter was carried to this Court and pursuant to the orders dated 11.10.2002 and 4.7.2003 in W.P.No.12548/2002 and other allied matters. Serious allegations were made in respect of implementation of those orders and some of the allegations are even admitted by respondent No.3 by the latest statement filed on their behalf as on that date. It was put to the learned Senior counsel appearing for respondent No3, learned Addl. Advocate General and learned counsel appearing for the other parties, whether a proper enquiry could be conducted with representatives of all the parties concerned and whether respondent No.3 KPSC will make available all the data and information available with respondent No.3 for the scrutiny by the representatives as aforesaid. Learned Senior counsel appearing for respondent No.3 KPSC fairly submitted on instructions and in presence of the Secretary of KPSC, Sri. K.R. Sundar, that KPSC shall make all the data and information in its possession available to the committee of representatives, as may be appointed by the Court and adequate facilities would be provided to the members of the committee to access all the necessary information in the premises of KPSC itself. Learned Addl. Advocate General submitted that irrespective of any other enquiry or proceeding in respect of same subject matter, the State would like to participate in such enquiry through their representatives and facilitate the full facts of the matter being brought to light for further adjudication by this Court. On the basis of such general consensus for furnishing and analysis of the data and information, in relation to selection and recruitment process as aforesaid, it was decided that learned counsel Sri. Vikram Phadke and Mr. Basavaraj Patil assisted by one of the petitioners would represent the petitioners and learned counsel Sri. Reuben Jacob for KPSC, learned Additional Advocate General, Sri. R. Devdas for the State Government and learned counsel Sri. K. M. Prakash, assisted by one of the selected candidates will form the committee to independently access the information available with KPSC. This Committee would meet on agreed dates for collection and analysis of the data and as far as, may be, within a period of one month, submit a joint or separate reports after analyzing the data and the summary of the conclusions drawn by them. KPSC would intimate individually to all the members of the committee the timing for attending the office of KPSC, during which period each member of the committee shall be provided a common room for calling for and accessing the necessary data and relevant information, as may be required by them. It was also agreed at the bar that the aforesaid representatives will be free to take assistance from the persons of their choice for the purpose of collection or analysis of the data or for the clerical duties as may be required. It would be open for the members of the committee to receive all the necessary data from respondent No.3 KPSC personally 126 OA No. 170/00961/2019 & Ors/CAT/BANGALORE on paper or in the form of Compact Disc and it will not be necessary for all the members of the committee to meet at one place at the same time. However full facility, access and accommodation shall be provided by KPSC in its own office for the purpose of conducting the proceedings by the members of the Committee. The Court hoped that the members of the committee would work in a congenial atmosphere and it shall be the duty of all the participants to maintain complete confidentially about the information being gathered, sifted or analysed and the conclusions being drawn. It would be in the interest of all the parties concerned that individual information or allegations of any of the parties or members of the committee shall not be aired in public or made subject matter of public debate directly or indirectly. Interim application No.1/13 was allowed with a direction that the applicant therein may be joined as respondents in the aforesaid petitions at the appropriate number. The persons so included are some of the successful candidates.
46. On 31.01.2014 the report of the Fact Finding Committee was produced before the Court, it was taken on record with the affidavit of respective parties.
On 21.3.2014 the Court observed as under:
"1. Learned counsel appearing for respondent No.3 -Karnataka Public Service Commission (KPSC) has filed a memo. In the said memo, the following information is furnished:
"A. List of three selected candidates whose names do not figure in the new Personality Test (PT) eligibility list.
B. List of 94 candidates who were earlier called for PT but who do not figure in the new PT list.
C. List of 94 candidates who have to be interviewed as per the new PT list, which candidates were not interviewed earlier.
D. Names of the persons who were responsible or who carried out the task of fresh moderation as per the order dated 10.10.2002 passed in W.P.No.12548/2002 & connected matters."
2. We have heard learned counsel for the respective parties, on the memo.
3. "A" is with regard to list of three selected candidates whose names do not figure in the new Personality Test (PT) eligibility list. As far as this list is concerned, learned Additional Advocate General submits that State Government would examine the matter and inform this Court on 26.03.2014 as to what steps would be taken with regard to the aforesaid three candidates.
127 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
4. "B" pertains to list of 94 candidates who were earlier called for PT, but who do not figure in the new PT list. As far as this list is concerned, presently no action is going to be taken in case those 94 candidates who were called for PT have not been appointed.
5. "C" is with regard to list of 94 persons who have to be interviewed as per the new PT list, which candidates were not interviewed earlier. Learned counsel for KPSC states that time may be granted in order to ascertain the present addresses of those candidates so as to notify them about the date of interview. Once the interviews are held, the effect of performance of those candidates on the final selection list would have to be considered and if the final selection list requires an alteration, then those persons who are presently working and would be affected would also have to be heard in the matter.
Therefore, he seeks six weeks' time for the said exercise.
6. As far as the names of persons mentioned in "D" is concerned, as the KPSC is admitting that these persons were responsible for not carrying out fresh moderation as per the order dated 10.10.2012 passed by this Court in Writ Petition No.12548/2002 and connected matters, we think that individual notices must be issued to those persons to show cause as to why Contempt of Court proceedings under the provisions of Contempt of Courts Act, 1971, should not be initiated as against them. Registry is therefore - 189 - directed to issue show cause notices to those five persons under the provisions of the aforesaid Act as per the addresses mentioned at page 364 of the records ("D" above), summoning them to appear before this Court on 11.04.2014. List these matters on 26.03.2014 for learned Additional Advocate General to make his statement on "A" above and for further consideration of the matter."
47. Thereafter on 26.3.2014 the Court observed as under:
"1. Learned Additional Advocate General has filed a memo with notices issued to three Sate Government officers pursuant to the previous order, wherein the statement of learned Additional Advocate General was recorded. It 128 OA No. 170/00961/2019 & Ors/CAT/BANGALORE was painful to see that an officer of the rank of Under Secretary to Government would issue notice pursuant to this proceeding with an incorrect and misleading statement that "As per the directions of the Hon'ble High Court of Karnataka, action has to be taken as per law." In order to substantiate the plea of sincere action on the part of the State Government, a letter dated 22.03.2014 addressed by the Principal Secretary to Government, DPAR, to the Secretary, KPSC is also annexed, in which some part is not legible. It has taken about 30 minutes of arguments and submissions and production of relevant judgment to find out what the illegible missing part in the document had to be, resulting in waste of public time of the Court because of sheer negligence of a public servant in preparing documents for submission before the Court. Therefore, the memo is ordered to be returned to the office of learned Government Advocate, with direction to collect by way of cost, Rs.500/- from the officer concerned who has put the documents together for perusal of the Court. The amount is to be paid to the Karnataka State Legal Services Authority within one week, after recovering it from the officer concerned, in the office of learned Additional Government Advocate or learned Additional Advocate General. We hope that such acts would not be repeated in future.
2. As noted in the previous order dated 21.03.2014, the Karnataka Public Service Commissioner (KPSC) has requested time of six weeks for arranging interviews of 94 persons who were not interviewed earlier. It was submitted by learned senior advocate for KPSC that they have initiated the exercise of ascertaining addresses of those 94 persons and the exercise of calling them and holding their interviews may be completed and the result thereof may be produced before this Court within six weeks from today. Therefore, he has sought time upto opening of the Court after summer vacation.
3. Permitting KPSC to proceed with the processing of aforesaid 94 cases, hearing is adjourned for the present to 11.04.2014 when KPSC will also be heard in respect of I.A.No.2/2014 moved by the petitioners. KPSC should complete the aforesaid process of 129 OA No. 170/00961/2019 & Ors/CAT/BANGALORE interview within six weeks as stated by its learned senior counsel."
48. On 11.4.2014 all the five persons to whom notices had been issued in pursuance of the order dated 21.3.2014 appeared in person. They were also represented by their respective counsel. They sought time to obtain necessary copies of the record and file their statement. In the meanwhile it was also noticed that one of the officers by name Sri B.A. Harish Gowda had already filed his statement.
49. On 11.8.2014 these petitions were ordered to be listed before another Bench of this Court for consideration. That is how these petitions which were listed all these days before the Bench presided by the Chief Justice was listed before this Bench.
50. On 20.08.2014 this Court passed the following order:
"ORDERS ON I.A.NOS.1 TO 5 OF 2013 It is a public interest litigation.
Impleading applicants are persons whose appointment is questioned in this proceeding. Any order in favour of the petitioners may affect them. Therefore, they are all necessary parties to this proceeding.
They have filed applications to come on record to implead themselves and petitioners have no objection. I.A.Nos.1 to 5 of 2013 are allowed.
The petitioners to amend the cause title showing impleading applicants as respondents. Petitioners to furnish copies of the writ petition along with all the annexures to all the impleading applicants. Liberty is reserved to them to file objections within two weeks if they choose to do so.
Learned Counsel for the petitioners to file amended cause title and a copy of the amended cause title also be furnished to the respondents Counsel.
The Government is directed to serve notice of the writ petition to all the persons who are selected, through department, except those who are 130 OA No. 170/00961/2019 & Ors/CAT/BANGALORE impleaded as parties. They can also issue a public notice calling upon all those persons who are selected and whose appointment is challenged before this Court informing about the pendency of the writ petition and mentioning that they can voluntarily implead in the case as has been done in the case today."
51. On 16.9.2014 the learned Additional Advocate General submitted that in terms of the order dated 20.08.2014 notices had been issued by way of paper publication. He also submits that notices had been served on all the officials. He filed a memo to that effect enclosing copies of the notices as well as the paper publication. In pursuance of the notices several persons filed applications to implead themselves and some others engaged a counsel. The Court observed at that juncture, that it was relevant to remember that all the persons who are sought to be impleaded were Group A and B officials. Pendency of this writ petition and proceedings of the writ petition was widely published in the news papers. These officials were aware of the proceedings, yet they did not choose to appear probably for the reason that they were not impleaded. Now due notice is taken to them personally and through paper publication, apart from the fact that news being widely published for more than two years by the press in all the daily news papers, all of them are deemed to have notice of these proceedings.
52. In order to avoid confusion, this Court also directed the petitioners to implead all the persons whose selections are challenged in this writ petition and web host a copy of the writ petition with their names, so that they could access the same at their residence or at their place of work. If any one of them wanted a hard copy, it was open for them to approach the learned counsel for the petitioners, make a Xerox copy and return the original to the petitioners so that others could have the same benefit. Subsequently the petitioners also filed a amended petition. Therefore, the Court proceeded to observe that further proceedings could be taken on the assumption that all of them had notice of the same. Any of the officials who were impleaded in the writ petition had any objections, they were at liberty to file the same within 15 days from the date of the said order. The applications filed by some of the persons to come on record as petitioners were kept in abeyance. Only the concerned officials, who wanted to come on record as respondents were allowed. In fact the web site address where the writ petition could be accessed was also mentioned as www.hccasekpscselection.com."
53. On 9.10.2014 an order came to be made directing that all the petitioners should keep a complete set of writ papers along with all annexures in the High Court Library to enable the respondents who 131 OA No. 170/00961/2019 & Ors/CAT/BANGALORE ever is not in possession of the entire papers to look into the papers and if necessary to obtain the Xerox copies of the same and file a suitable reply. It was also made clear that all those persons whose selection was challenged in these proceedings were at liberty to file objections even if their names are not shown as respondents in any of these petitions or in the cause list.
54. On 11.11.2014 this Court after narrating all the aforesaid facts in brief opened the sealed cover submitted by the KPSC to the Court and thereafter passed the following order :-
"12. In the course of arguments, learned counsel for the petitioner pointed out from the report submitted by the Advocates how the K.P.S.C has violated the terms of the order passed by this Court.
Correspondingly, when we looked into the re-moderation made by the K.P.S.C we find they admit the mistake and they have done re- moderation. In the said report, they have also pointed out how this re-
moderation effects persons, how persons who are selected to Group 'A' post on account of this re-moderation will fall in Group 'B' category and persons who are in Group 'B' category will move to Group 'A' category and some of them will go out of the list and how within the same service ranking will vary. Now all the persons are before the Court. The said re-moderation by the KPSC is bound to affect few of the persons who are before this Court. As stated, by this Court in the earlier order they have to be heard. Therefore, we are of the view we should give an opportunity to all those persons who are going to be affected by the report submitted by the K.P.S.C. now. It is also possible that in the very report there may be some mistakes, which may affect their interest and they should be given an opportunity to point out those mistakes if any. Therefore, what is kept in the sealed cover in secrecy should be made known to all the persons who are before the Court as it relates to public employment and whether the K.P.S.C and Government has made recruitment in accordance with rules.
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13. Having regard to the number of persons who are before this Court as we did in case of writ petitions and as all the persons who are before this Court are either Group 'A' or Group 'B' employees and have completed about 9 years of service and well versed in computer knowledge, it would be appropriate that the report cum final list prepared by the K.P.S.C is web hosted by them as well as the Government. Therefore, the K.P.S.C shall make available a copy of the report to the government. They shall web host the said report in their web site and if any persons approaches them a hard copy also be made available to them. On such web hosting, all such persons who are aggrieved by the contents of the same are at liberty to file objections, appear before this Court personally or through their counsel and bring it to the notice of the Court their say in the matter so that the Court would be in a better position to appreciate the arguments of all persons concerned. As this matter is being heard on day to day basis, this web hosting should be done within 24 hours and any objection to the said report should be filed before this Court by next date of hearing after serving a copy on the opposite side within three days.
14. Call this matter for further hearing on 18.11.2014. Registry is directed to furnish a copy of this order to the Government Advocate as well as the K.P.S.C and web host this order forthwith."
55. On 18.11.2014 all the respondents who were impleaded were duly served and they had engaged counsel to represent them. They also filed their objections by the order dated 11.11.2014 where we had directed the KPSC to web host the list prepared by them after re- moderation and fresh interview which was handed over to the Court in a sealed cover to enable all the affected persons to have their say in the matter. Accordingly objections were filed to the same. On their behalf it was brought to the notice of this Court that these newly impleaded respondents were not aware of the earlier proceedings and the orders passed by this Court till they were impleaded as parties. They submitted that for them to make effective representation, it was necessary to have a glimpse of those proceedings. They also wanted 133 OA No. 170/00961/2019 & Ors/CAT/BANGALORE to know under what circumstances the KPSC took up the remoderation and the procedure they had followed to enable them to make their case effectively. This Court found substance in the said two submissions and therefore this Court directed the High Court registry to web host the orders passed from the inception till now as recorded in the order sheet, to enable all persons who were impleaded as parties to have the first hand information about the proceedings which had taken place before the Court and also various orders passed from time to time, till now. Further KPSC was directed to file the affidavit setting out under what circumstances they took up re-moderation and also the procedure they had followed in the re- moderation by the next hearing date. Further they were directed to web-host the said affidavit after it was being duly sworn to, before 22.11.2014 to enable the respondents to have the requisite information so that they could have their say i.e., 24.11.2014.
56. Some of the respondents, aggrieved by the order dated 11.11.2014, preferred a Special Leave to Appeal (C) No.31461/2014 before the Apex Court. The Supreme Court by an interim order dated 21.11.2014 stayed all further proceedings in this writ petition. This Court directed the posting of the matter only after the Special Leave Petition before the Apex Court was disposed of. The Apex Court took up the said Special Leave Petition on 5.2.2016 for hearing and passed the following order:
"We have heard the learned counsel for the parties at considerable length. We do not see any merit in this Special Leave Petition, it is hereby dismissed. The interim order dated 21.11.2014 shall stand vacated. We make it clear that we have not expressed any opinion on the merits of the contentions that may be open to the parties to be urged before the High Court including whether the report which is web hosted can or cannot be accepted in the peculiar facts and circumstances of the case, the petitioners and all other affected parties shall have six weeks time to file objections, if any before the High Court."
Thereafter all the respondents have filed their objections.
STAND OF THE KPSC:
57. In these proceedings KPSC filed its statement of objections to the findings of the CID report on 18.9.2013. It also filed the statement of objections to the writ petition on 7.10.2014. They also filed a counter affidavit in respect of the conclusions contained in the report of the Fact Finding Committee. On 19.02.2014, lastly, they filed an affidavit in compliance of the order dated 18.11.2014 explaining the process involved in re-moderation of marks. Broadly following are the grounds of defence taken by the KPSC in these proceedings.
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58. The petitions have been filed as Public Interest Litigations (PILs).
Admittedly all the petitioners in the above petition are unsuccessful candidates who have participated in the selection process of Gazetted Probationers of 1998, 1999 or 2004 selection. It is well settled law that PILs in service matters are not maintainable and all the above cases are liable to be dismissed in limine. Most of the petitioners in the above petition have already approached the Karnataka Administrative Tribunal by filing separate applications seeking relief in respect of selection which is the subject matter of these writ petitions. They have furnished the details of the applications filed by the petitioners in the above petition. The fact that most of the petitioners have already approached the KAT for similar relief or relief specific to their non selection, has been suppressed. The fact that most of the petitioners have been prosecuting the parallel proceedings amounts to abuse of the process of this Court. The petitioners who have suffered adverse orders before the KAT have allowed those orders to become final. All those petitioners, who have not challenged their non-selection earlier cannot at this point of time question their nonselection by belated petitions. On these grounds these writ petitions are liable to be dismissed in limine.
59. The KPSC, notwithstanding the contumacious conduct of the petitioners and non maintainability of the PILs, as a responsive constitutional body, has welcomed the idea of forming a Committee in the present proceedings and has taken corrective action based on the admitted findings in the CID report having concern in transparency and larger values. Having regard to the prayer made in the earlier writ petition, the submission of the Government is that the entrustment of the investigation of the CID culminated in the CID submitting its report. In that context they submit that the Commission has fully extended its co-operation and has co-operated in the investigation conducted by the CID. However, except for one adverse finding against the Commission (which has admitted to other adverse findings in the CID report were erroneous and incorrect) they objected to the said report. The CID police has undisputedly lodged criminal proceedings against the concerned persons including former office bearers and officials of the Commission and the said criminal proceedings are pending as on date. On the CID police filing the investigation report the said writ petitions were closed. Thereafter some of the petitioners approached the Government by way of representations in response to which the Government issued endorsement dated 9.7.2012. Challenging the said endorsement, writ petition is filed. In the representation of the petitioners to the Government, they sought for scrapping/quashing the selection list of GP 1998, 1999, 2004 selection and for re-doing all the selection process. The Government could not have considered such request of the petitioners of cancellation of the entire selection. In this writ petition as controversies surrounds the findings contained in the CID report, Commission has filed a statement dated 20.9.2013 135 OA No. 170/00961/2019 & Ors/CAT/BANGALORE indicating its stand on the findings of the CID report. In the said statement the Commission has specifically stated the stand of the Commission in respect of each selection and finding contained in the CID report. In order to avoid repetition the said statement dated 20.9.2013 is made as part and parcel of those statement of objections.
60. By an order dated 20.09.2013 this Court was pleased to appoint a Fact Finding Committee, which contained in all five advocates, two advocates represented petitioners, one advocate represented KPSC, learned Additional Government Advocate for the State Government and the one Advocate for the selected candidates. The members representing the selected candidates shall have to file a separate report and the other members were to file another report. A report filed by four members of the Committee and one member representing the Commission was filed before this Court. A counter affidavit has been filed on behalf of the KPSC in respect of the conclusion arrived/contained in the report of the Fact Finding Committee. The said counter affidavit dated 19.2.2014 which was filed in the open Court on 19.2.2014 could be read as part and parcel to the objections in order to avoid repetition.
61. In pursuance of the orders passed by this Court on 18.11.2014, the Secretary to the KPSC filed an affidavit setting out under what circumstances, the Commission took up re-moderation and also set out the procedure that the Commission has followed in the re- moderation.
62. It is stated that during the pendency of the above writ petitions, on 2.8.2013 a meeting was called for by the Principal Secretary to DPAR in order to discuss the action required to be taken by the State Government in pursuance of the CID report filed in W.P.Nos.11550/2008 and W.P.No.9098/2009. He required the Secretary of the Commission to participate in the said meeting. At that point of time, KPSC was not arrayed as a party respondent in the above writ petitions and KPSC was not aware of the proceedings in the above writ petitions. Thereafter by a communication dated 27.08.2013 the Principal Secretary, (DPAR) wrote to the Commission requesting the KPSC to take action/corrective action as per the orders of the Hon'ble High Court of Karnataka and furnish a detailed report to the Government. They also requested the Commission to take action on the allegations/findings of the CID in respect of the Gazetted Probationers Examinations of 1998, 1999 and 2004, as per the decisions in the meeting held under the Chairmanship of the Chief Secretary to the Government. Further the Commission was required to take action with specific reference to the most serious allegation No.3 and findings of the CID thereon with reference to the 1998 Gazetted Probationers Examination, redo the moderation and scaling in accordance with the directions dated 11.10.2002 and further to redo the selection lists 1998, 1999 and 2004, as indicated above, if 136 OA No. 170/00961/2019 & Ors/CAT/BANGALORE necessary, particularly identifying the illegal beneficiaries, who have been appointed. Once commission was also asked to identify fresh candidates, who were to be included in their places and to send final select lists by following the required procedures to indicate the action taken against the officials of the KPSC, viz., Sri K. Narasimha, Sri.Gopikrishna and Sri.M.B. Banakar, who were indicted in the CID report. In the meanwhile the KPSC was added as a party respondent in the above petitions and appeared before the Court through a counsel on 26.08.2013. After entering appearance they submitted the data and information required as per the previous order dated 12.08.2013 and also undertook to furnish such information as may be called for by the State Government within a period of one week from the date of request of the Government. They also pleaded their inability to the Government to re-do the selection and submitted a report stating that it was not within the powers of the Commission as once the final selection list was published and forwarded to the Government, it would become 'functus officio'. On verification of the records of the then Secretary, it was found that the annulled Chief Examiner (CE) and Head Examiner (HE) marks had been taken into consideration for the purpose of moderation and scaling, which was contrary to the directions issued by this Court in W.P.No.12548- 89/2002 and connected matters. The Commission wrote to the Government that the cross checking exercise had been undertaken and considering the enormity of the task, they sought for four weeks time to complete the process and to provide information including the marks awarded by the examiner, head examiner and chief examiner and any other relevant information the Government may desire.
63. They also stated that, the Commission wrote to the Government on 17.9.2013 stating that after undertaking the exercise of crosschecking in respect of the moderation and scaling of 1998 batch, it was found that a total of nine answer scripts covering different subjects were required to be submitted to third valuation. Giving the details of the said scripts, the Commission requested for two weeks time to complete the process of third valuation and to convey the outcome. They admitted the finding of the CID report to the effect that the order passed by the High Court in Writ Petition Nos.12548- 89/2002 was violated. Further they state, in pursuance of the said finding, the Commission is re-doing the exercise of moderation and scaling in order to find out, if in fact there would be tilting of the total marks secured by a candidate and consequently the select list, if the marks awarded by Chief/Head Examiners were not taken into consideration during moderation and scaling. It was found that a total of nine scripts in four subjects were required to be subjected to third evaluation. The same was to be followed by preparation of merit list and if any fresh candidate comes within the 1:5 eligibility range (as per merit/reservation) then personality test would be arranged for the said candidates. Based on the outcome, merit list needed to be re-drawn as also the final select list. Then they have referred the appointment of 137 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Fact Finding Committee. In the meantime, the Commission completed the third valuation of the additional answer scripts required to be subjected to third valuation and they have also informed the Court that, 94 candidates who were not interviewed earlier found a place in the said list and 94 candidates who were interviewed earlier did not find a place in the list. They furnished the requisite information in a sealed cover. Thereafter, they referred to the order passed by this Court dated 11.11.2014 making available the list which was kept in the sealed cover. They proceeded to set out how the moderation and scaling was undertaken. They said that, the moderation and scaling was done only in respect of the subjects where the marks awarded by the Head Examiners and Chief Examiners were annulled.
64. The first step involved was crosschecking of the marks entered in the computer database paper-wise and examiner-wise in order to tabulate the marks awarded by original examiner and discard marks awarded by the Head Examiner and the Chief Examiner. In the process of first moderation examiner-wise and paper wise, 10% answer scripts (5% top and 5% random) were already picked-out for second valuation and valued. The said second valuation marks of 10% answer scripts were compared with the original examiner marks to determine the difference between the two marks. They made it clear that if the marks awarded by the Head Examiner and theChief Examiner had been taken into consideration earlier in respect of the 10% pickedout answer scripts, there should be change in the difference of marks from the first moderation to the re-moderation, as the difference in marks in re-moderation is between the original examiner and the second valuation marks. However, in case of picked-out scripts, which were not corrected either by the Head Examiner or the Chief Examiner or both, then the difference of marks would remain the same as in the case of first valuation. Thereafter, the average variation is arrived at by adding the difference in marks in respect of 10% picked-out answer scripts divided by the number of answer scripts picked-out. If the average variation is more than plus(+) or minus(-) 20, then the original examiner marks of all the scripts evaluated by the said examiner is added or subtracted by such average variation and the final scaled marks would be after such addition or subtraction. In the event of average variation being less than plus(+) or minus(-) 20, then no addition or subtraction is necessary and the original examiner marks have been retained. However, in individual cases of picked-out answer scripts, if the difference between the marks awarded by the original examiner and the second valuation is more than plus(+) or minus(-) 20, such answer scripts are subjected to third valuation and the marks awarded in the third valuation is taken as the final marks. In the first moderation after arriving at the average variation, addition or subtraction was carried out by using Head Examiner or Chief Examiner marks, where they have valuated the scripts. However, in the case of scripts evaluated 138 OA No. 170/00961/2019 & Ors/CAT/BANGALORE only by original examiner, even in the first valuation, the addition or subtraction was only from the original examiner marks.
65. Illustration contained in CID report at pages 25 to 38 does not give the correct scope of correction, inasmuch as, the CID has pointed out the fact that, at the stage of addition or subtraction of the average variation, the Head Examiner's and the Chief Examiner's marks have been used instead of original examiner's marks. However, if in case of the first valuation of the Head Examiner or Chief Examiner marks were used for calculating the average variation (in respect of picked- out answer scripts), then in the remoderation even the average variation would undergo a change. CID did not appreciate this aspect and hence, the calculation given in the CID report in pages 25 to 36 cannot be used in order to determine the correct difference of marks on re-moderation.
STAND OF THE STATE:
66. In the Statement of Objections, they have referred to the recruitment of 403 Group-A and Group-B posts from the initial stage till the matter was concluded in the Apex Court which we have clearly set out under the heading background of the case in respect of 1998 batch. Thereafter, they have stated that in the background of the alleged large scale irregularities in the valuation of answer scripts of 1998 Gazetted Probationers Examination, the Government in its order dated 4.2.2013 entrusted the matter to Sri K.K.Mishra, then Additional Chief Secretary and Principal Secretary to the Government, to investigate and to submit his report. Accordingly, Sri K.K.Mishra investigated the matter and submitted his report to Government on 4.4.2003 recommending to entrust the matter to Karnataka Lokayukta for further investigation. The Karnataka Lokayukta in its letter dated 26.9.2003 reported that, there is no need to enquire into the matter once again since the matter has already been investigated by the Additional Chief Secretary. After examining the issue in detail, the STAND OF THE STATE: 66. In the Statement of Objections, they have referred to the recruitment of 403 Group-A and Group-B posts from the initial stage till the matter was concluded in the Apex Court which we have clearly set out under the heading background of the case in respect of 1998 batch. Thereafter, they have stated that in the background of the alleged large scale irregularities in the valuation of answer scripts of 1998 Gazetted Probationers Examination, the Government in its order dated 4.2.2013 entrusted the matter to Sri K.K.Mishra, then Additional Chief Secretary and Principal Secretary to the Government, to investigate and to submit his report. Accordingly, Sri K.K.Mishra investigated the matter and submitted his report to Government on 4.4.2003 recommending to entrust the matter to Karnataka Lokayukta for further investigation. The Karnataka Lokayukta in its letter dated 26.9.2003 reported that, there is no need to enquire into the matter once again since the matter has already 139 OA No. 170/00961/2019 & Ors/CAT/BANGALORE been investigated by the Additional Chief Secretary. After examining the issue in detail, the investigation report. In this way, action has been initiated against those responsible for the irregularities said to have been committed in the valuation of the answer scripts of 1998 Gazetted Probationers Examination.
67. Then they have referred to filing of Writ Petition No.11550/2008. The Hon'ble High Court by its order dated 23.8.2011 directed the CID to investigate the matter within six months. The Hon'ble High Court has also ordered to appoint Justice Mohammed Anwar, a retired Judge of this Court to monitor the investigation and filing of the report before the Court and the order was passed by disposing of the writ petition. Thereafter, the petitioners submitted a representation to the Government on 21.9.2012 and 24.5.2012 requesting the Government to cancel the recruitments of 1998, 1999 and 2004 batch and to redo the select list of the candidates. The Government after considering the representation of the petitioners, rejected the same by issuing endorsement dated 9.7.2012, which is impugned in the writ petition. The endorsement issued by the Government on 9.7.2012 is just and proper and needs no interference by this Court. The petition filed by the petitioner is devoid of any merits and liable to be dismissed.
68. The petitioners ought to have approached the Hon'ble Karnataka Administrative Tribunal, if they are aggrieved by the said endorsement, instead they have approached this Court. Therefore, the writ petition is misconceived and not maintainable in law and liable to be dismissed. They also submitted that, the Karnataka Public Service Commission ought to have been made a party to the proceedings as they are challenging the select list of the candidates of 1998, 1999 and 2004 prepared by the KPSC and therefore they contend that the petition is bad for nonjoinder of necessary parties and the petition is liable to dismissed. Thereafter, they have submitted that, the CID after having conducted the investigation filed C.C.No.8400/2012 before the Additional Chief Metropolitan Magistrate Court, Bangalore against Dr.H.N. Krishna, the then Chairman of Karnataka Public Service Commission, Mrs. Asha Parveen, Tahsildar, Smt.Salma Firdose, Assistant Registrar of Co-operative Societies, Smt. K.Narasimha, Sri P.Gopikrishna and Sri M.B.Banakar, staff of the Karnataka Public Service Commission by framing charges under various provisions of the IPC. The matter is pending before the Criminal Court. In addition to the above, the Government in its letters dated 8.6.2012 and 10.9.2012, the Revenue Department had been requested to take action against Smt.Asha Parveen, who is working as Tahsildar. Again in the letters dated 8.6.2012 and 10.9.2012, the Cooperative Department has been requested to take action against Smt.Salma Firdose, since she is working as Assistant Registrar of Co-operative Societies under the control of Cooperation department. In this way, the Government is sincerely taking action against those who are indicted in the CID report. That being the state of affairs, the allegation 140 OA No. 170/00961/2019 & Ors/CAT/BANGALORE of the petitioners that, the Government is not contemplating any action against those who are figured in the CID report is unfounded and the same is liable to be rejected. Therefore, they have sought for dismissal of the writ petition.
Statement of Objections filed by the successful candidates:
69. Statement of Objections filed on behalf of the respondents -
successful candidates - Respondents No.16 to 18, 20 to 22, 25 to 27, 72, 80, 84, 117 to 120, 124 to 125, 128 to 133, 136, 137, 139, 140 to 149, 150, 151, 154 to 156, 238, 243, 249, 303, 310, 356, 357, 359, 361, 365, 366, 368, 369, 371, 377, 380, 383, 386, 388, 415, 427 to 429, 439, 441, 460, 479, 487, 492, 495, 503, 509, 518, 551, 580, 582, 611, 612, 615, 616, 620, 625, 628, 630, 632, 645, 652, 654, 661, 666, 677, 679, 680, 682, 691, 696, 699, 703, 705, 706, 707, 710, 713, 714, 715, 719, 720, 721, 722, 724, 725, 726, 727, 728 and 475.
70. After referring to the chequered history of this case as set out by us above, these respondents have traversed the allegations in the writ petition in their statement of objections from paragraph 23 onwards. They contend the petitioners were aspiring candidates to the post of Group-A and Group-B (Gazetted Probationers) for the years 1998, 1999 and 2004. The grievance of the petitioners are in the nature of personal interest and no public interest is involved in the above writ petition. Hence, writ petition filed by the petitioners is required to be dismissed in limini with cost. Then they have referred to the judgments of the Supreme Court on the question of how public interest litigations have to be dealt with. Then in paragraph 26 they have set out the marks of the selected candidates before moderation, after moderation and the difference between the two moderations. Then they contend that, Supreme Court has held that, "for the mistake of the appointing authority, the selected candidate should not made to suffer". The merited and untainted candidates can be segregated. Cancellation of entire selection process on the ground that the process smacks of mala fides and mal practices was not justified". The CID has not stated anything anywhere that the respondents are responsible for the alleged noncompliance of the order if any passed by the Division Bench of this Court in Writ Petition Nos.12548-12589/2002. If at all anything wrong done by the Karnataka Public Service Commission, the petitioners have to redress their grievance in the petition filed by them before the Karnataka Administrative Tribunal. When the responsibility of compliance of the order of the High Court is entrusted to the Secretary of the Karnataka Public Service Commission, if they are in mistakes and illegalities, he is responsible and CID has not chosen to take any action against the Secretary and Secretary has not been made an accused for his alleged mistakes, if any. It shows the CID has not conducted the investigation in a fair manner.
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71. The petitioners have misinterpreted the observation made by the CID. By reading the last para at page No.53 of CID report, prima-facie it appears that the CID has not conducted the investigation fairly. Then they have referred to some cases of mistakes in the selection. Then they have set out the powers and duties of the Secretary of the Karnataka Public Service Commission. Then they have referred to the acceptance of false, forged, documents and bogus certificate. There have been instances of category violation. It is submitted that, a candidates though applied under the category, by virtue of merit, they have selected under G.M. It is pertinent to mention that, neither the Chairman nor any member wrote any remarks 'consider or not to consider', it is the duty of the Secretary of the Commission to look into it and to decide whether to accept or reject the recommendation made by the Commission. The Secretary is the final authority to decide an issue.
72. Then they have referred to various actions taken in pursuance of the CID and they submit that the petitioners have filed the present writ petitions by suppressing the fact of pendency of the litigations before the KAT. Hence, these writ petitions are to be dismissed for suppression of facts and also for the reason that the petitioners have not approached this Court with clean hands. Until and unless the allegations are proved, based on the alleged allegations made in a criminal case action cannot be taken in service matters. Though, the Government has taken the action by suspending the candidates, those candidates have approached the KAT and got the stay and the said matters are pending for consideration and therefore, they sought for dismissal of these writ petitions.
Statement of Objections filed by other respondents:
73. Statement of objections of respondent Nos.32, 33, 34, 36, 37, 39, 42, 44, 45, 47, 48, 50, 52, 54, 56, 59, 60, 62, 63, 67, 73, 76, 110, 111, 116, 142, 157, 237, 247, 264, 265, 267, 268, 269, 270, 271, 273, 274, 283, 284, 285, 286, 297, 308, 315, 322 and 324.
74. After referring to the earlier proceedings which are set out above and the various judgments of the Apex Court, these respondents have contended that as could be seen from the report submitted by the investigating authority they have pointed out some of the procedural irregularities such as moderation of answer books, receiving degree certificate in addition to marks cards and considering the reserved candidates under general categories according to their merits etc., Admittedly the selected candidates performed very well in the written examination and interview when compared to the petitioners and they are qualified for the said posts. Accordingly, they have been selected and appointed to various posts and also working for past 08 years. Hence, there is no substance in such contention after such a long lapse of time. Several candidates claimed reservation under various 142 OA No. 170/00961/2019 & Ors/CAT/BANGALORE categories at the time of preliminary examinations and at the time of main examinations for having performed very well in the written examination. They have secured higher marks and got interview under general category having pushed to general category, it is not necessary to verify the validity of the claim for reservation. After referring to the judgment of the Apex Court it is contended that reserved candidate is entitled to compete for the general category or reserved category. Hence, there is no substance in the contention of the petitioners regarding selection of reserved candidates for the posts meant for general category. The Officers of CID pointed out three alleged irregularities and in relation to 1998 recruitment batch, answered as under:
1. Violation of ratio policy: as observed in the KAT court itself classification is done in accordance with Government Order dated 20.06.1995.
2. Category manipulation: the candidates applied under reserved category have scored higher marks than general category in the interview and selected under general merit as observed in the report itself.
3. Improper acceptance of applications inspite of grave discrepancy and violation of recruitment rules.
75. Out of 08 candidates listed under this category, 7 candidates have not enclosed degree certificates but enclosed final year marks card or cumulative grade card. In respect of candidates who have completed all the years of degree in first attempt along with merits in the final year, marks performance of all the years is available. As per the rules, the candidates have to produce proof of passing the degree containing the marks of all the years is sufficient proof of passing it.
Apart from that the allegation is not based on marks in the academic qualification but on the basis of marks secured in the competitive examinations. They have secured more marks than the petitioners and selected for number of posts. Hence, there is no substance in the said contention.
76. All these respondents were appointed as Gazetted Probationers in the year 2006 and their period of probation was declared after they passed required departmental examinations. Most of them have been promoted to next higher cadre and are discharging their duties sincerely and honestly. After 07 years from the date of their appointment, they are impleaded as respondents to contest these matters. Hence, on the ground of delay and laches, itself, the above writ petitions have to be dismissed.
77. In the case of any irregularity committed intentionally by any individual it has to be enquired into and it is open to take action as per Rule 20 of the General Recruitment Rules 1977 but entire selection 143 OA No. 170/00961/2019 & Ors/CAT/BANGALORE cannot be called in question as held by the Apex Court in a number of judgments. The allegation, the alleged irregularities are attributed to previous chairman of the KPSC Sri. H.N.Krishna. Even the allegation of favouritism and other allegations are made without impleading him as a party in the above proceedings and therefore, the petition is to be dismissed for non-joinder of necessary parties. Therefore, they have sought for dismissal of the said writ petitions.
78. Respondents No.2 and 7 have filed additional statement of objections virtually reiterating what they have said in the earlier objection statement.
79. These respondents have filed their objection relating to 1999 batch. They have traversed the allegation in the writ petitions paragraph wise. They have denied the allegation and they have also reiterated the objection what others stated in the statement of objection and they wanted writ petitions to be dismissed.
80. Some of the other respondents have also filed separate statement of objections but the contention taken therein is already set out above and they have only reiterated the same in the statement of objections.
ARGUMENTS
81. Sri M.B.Nargund, the learned senior counsel appearing for the petitioners contended that, in the selection of the years 1998, 1999 and 2004, there is a gross violation of ratio of candidates to be admitted to written examination and called for Personality test, offending Articles 14 and 16(1) of the Constitution of India. Secondly, he contended that the directions issued by this Court in W.P.Nos. 12548- 589/2002 for fresh evaluation in terms of Para 78 of its order and the direction to redo a fresh moderation in regard to 18 option subjects and also General Studies in the manner suggested by the KPSC in Para B of its memo dated 27.3.2002 is not complied with. Thirdly, the KPSC has restricted its moderation and revaluation only to the extent of 10% of the answer scripts and the answer scripts which was subjected to such revaluation above 10% is not taken into consideration which is again a contravention of the directions issued by this Court and, therefore, he submitted the entire selection is vitiated and liable to be set aside.
82. Per contra, Sri P.S.Rajagopal, the learned senior counsel appearing for KPSC, submitted that, the procedure followed in preparing the list of eligible candidates to take the written examination as well as the personality test is in terms of the Government Order dated 3.5.1994 and 20.6.1995. The said procedure is followed from 1975 onwards. Therefore, there is no illegality committed by the KPSC in following the said procedure. In so far as moderation and scaling is concerned, though the KPSC has committed the mistake of taking the 144 OA No. 170/00961/2019 & Ors/CAT/BANGALORE annulled marks, on the same being pointed out, now they have rectified the mistake and have prepared the revised merit list which is also web hosted. In so far as not undertaking the said exercise in respect of the answer scripts which are more than 10% is concerned, as they were called upon to redo the exercise only in respect of 10% of the answer scripts, they were under no obligation to undertake the said exercise in respect of those answer scripts which were above 10% and, therefore, no fault could be fault with.
83. Sri S.Vijaya Shankar, the learned senior counsel, appearing for the candidates who are affected by the revised merit list contends that, once a list of candidates suitable for appointment is prepared in accordance with Rule 11 of the Rules, the KPSC becomes functus officio. They have no power to revise the said merit list and, therefore, the revised merit list cannot be enforced and is liable to be set-aside.
84. Sri.Subramanya Jois, learned Senior counsel appearing for successful candidates of the 1998 batch submitted that by relying on the judgment of the Apex Court in the case of Dr.M.S.Mudhol and another Vs. S.D.Halegkar and others reported in (1993)3 SCC 591 that at this distance of time, the selections made more than 12 years back cannot be unsettled. He also submitted that the very petitioners, who are prosecuting these writ petitions are applicants before the KAT, where they are seeking very same relief. He also contended that in the entire writ petitions, no allegations are made against the successful candidates that they have manipulated or practised fraud in order to get selected. Therefore, it is submitted that at this distance of time, the question of considering the public interest litigation to annul the said appointment would not arise.
85. Sri K.M.Prakash, the learned counsel appearing for the successful candidates submitted that, the KPSC has conducted the selection as per the Rules framed by the Government. All persons who have merit are to be considered as GM candidates and, therefore, considering the candidates belonging to the reserved category as GM candidates is in accordance with law and no fault could be found with in it.
He also contended that the material on record clearly demonstrates that this public interest litigation is filed targeting a particular individual and a particular community and, therefore, it ceases to be a public interest litigation. He further submitted the dispute in question being purely a service matter, as held by the Apex Court in several judgments no public interest litigation is maintainable. In support of his contention he relied on several judgments of the Apex Court.
He contended that all these petitioners were the candidates, their application before the tribunal challenging the selection process 145 OA No. 170/00961/2019 & Ors/CAT/BANGALORE is pending, that the questions involved in this Writ Petition and the questions in that application are one and the same, that they cannot be allowed to prosecute parallel proceedings, that their conduct is not bonafide, that they have not come to the Court with clean hands, that a person who has surpassed material particulars, filed a review petition and a curative petition, is not entitled to any relief at the hands of this Court. Moreover, no allegations are made against the successful candidates, they are not party to any of the irregularities alleged. For no fault of their's they cannot be made to suffer. Therefore, he submits seen from angle, the selection list cannot be quashed by this Court.
Lastly he submitted, in the event this Court were to uphold the revised merit list as held by the Apex Court in several judgments, without disturbing candidates who are working for the last 10 years or more, supernumerary posts could be created for those persons whose name did not figure in the earlier list.
In so far as the selection of Smt. Nirmala as Deputy Superintendent of Excise is concerned, what is shown in the register on the interview date as absent is wrong. She has sworn to an affidavit where she has given her version and she has also produced documents to substantiate her stand and, therefore, he contends she was not absent, she attended the interview and the marks allotted to her in such interview is in accordance with law.
In so far as discrepancies pointed out in Table 20 in the report submitted by the petitioners' counsel is concerned, he submits there is no tampering, and manipulation. Thereafter, he referred to the 164 statement recorded by the Magistrate and other members of the committee, all of them are Constitutional authorities, barring the fact that the Chairman is first among the equals, the question of Chairman threatening the members and acting against their wishes would not arise, statements given before the Magistrate are yet to be proved. In fact, the complaint filed against the other members of the Commission are quashed by this Court. In those circumstances, the correction of the marks is genuine and it cannot be found fault with.
86. Sri Aditya Sondhi, the learned Additional Advocate General and Sri Devdas, the learned Additional Government Advocate, reiterated what they have said in the statement of objections.
87. Sri. S.V. Narasimhan, learned counsel submitted that the petitioners in the writ petitions, in categorical terms have stated that they are the aspirants for the posts, which are filled up by the KPSC and therefore, the writ petition is for vindicating their personal rights and not a public interest litigation. He further submitted that it is settled law that no public interest litigation lies in respect of service matters. In support of his contention, he relies on the judgments of the Apex 146 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Court in case of Ashok Kumar Pandey Vs. State of West Bengal reported in (2004)3 SCC 349, in case of Hari Bansh Lal Vs. Sahodar Prasad Mahto and others reported in (2010)9 SCC 655 and in case of State of Punjab Vs. Salil Sabhlok and others reported in (2013)5 SCC 1.
He further submitted that though the examinations are conducted in the years 1998 and 1999, the appointment orders were issued only in the year 2006 whereas the writ petition is filed in the year 2012 i.e., 6 years after the appointment. Therefore, he relies on the judgment in case of Printers (Mysore) Ltd., Vs. M.A.Rasheed and others reported in (2004)4 SCC 460. He contended that the writ petition filed six years after the appointment orders is liable to be dismissed on the ground of delay and latches on the part of the petitioners in approaching this Court. The said delay and latches equally applies to public interest litigation.
The learned counsel also relied on the judgment of the Apex Court in the case of Anirudhsinhji Karansinhji Jadeja and another Vs/ State of Gujarat reported in AIR 1995 SC 2390(1) at Paragraph 11 and the case of Dipak Babaria and another Vs/ State of Gujarat and others reported in (2014)3 SCC 502 paragraphs 69 and 72, where it has been held that the direction by the State Government to another instrumentality of the State is contrary to law and cannot be approved and any orders passed on such dictation is invalid. He also relied on the objections to the Fact Finding Committee's Report, which is taken on record.
The learned counsel relying on paragraph 52 in Sanjay Singh's case submitted that if the Court comes to the conclusion that if there were irregularities in the selection, still any rules or guidelines to be issued by this Court should be made prospective so that the successful candidates, who have been working for more than 10 years is not disturbed. He further submits that the Rajasthan High Court as well as the High court of Uttar Pradesh have followed the High Court of Uttaranchal in this regard.
88. Sri.Vedachala, learned counsel appearing for Roopashree and Sri.Subramanya, learned counsel appearing for Uma. K., pointed out that the respective respondents are both benefited and suffered in the process of the so-called third valuation, which is not taken into account.
89. Sri Krishna Dixit, the learned counsel appearing for respondent No.430 by name Devaraja contended that, in the committee report it is suggested that the member Smt. Ilian Xavier altered the marks 70 to 150 on the instructions of the Chairman Dr.Krishna. In the 164 statement recorded before the Magistrate there is no whisper. On the contrary all the other members have awarded 150 marks. He is a highly qualified candidate and when the other members have awarded 147 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 150 marks, when by alteration this member has also made it 150, no fault could be found with the selection.
90. Sri Spoorthi Hegde, the learned counsel appearing for candidates who belong to 3A but are selected in the GM category states their selection is based on purely merit. There is no allegation against them in the CID report and they are not involved in any manipulation and, therefore, their selection cannot be found fault with.
91. Sri Narayana Bhat, the learned counsel appearing for respondent No.4-Idayathulla submits that, his client was a candidate in 1999 selection. He was not selected. Therefore, he filed an application before the Karnataka Administrative Tribunal complaining of nonselection. Application was allowed directing the Government to create a supernumery post. That order was challenged before this Court. By an interim order a direction was given to create a supernumery post and accordingly he was appointed. Subsequently, the Writ Petition came to be dismissed. His appointment is final. He stands outside the purview of this litigation. Under no circumstances his appointment could be touched.
92. In so far as Ram Prasad, respondent No. 301 is concerned, his name is taken out of the list on the basis of the marks after moderation. He submits he has now secured the records from the KPSC and the moderation is correct and if the correct marks are taken, he would not be out of the list. The same reasoning applies to respondent No.306-Siddalingaswamy who happens to be a 3B category and also for respondent No. 322-Mehaboobi, respondent No. 354 - Arun Kumar Sangali and respondent No. 294 -Gopal. Synopsis and judgments are also placed on record. Further he submits that all his candidates are meritorious, deserving, honest people. If at all these mistakes, manipulations have happened in case of those candidates who have taken Kannada and History as the optional subjects.
93. Vishwanath Hiremath-respondent No. 737 had applied for a post in 2004 selection. He was not selected. He challenged the same before the Karnataka Administrative Tribunal on the ground that no reservation is earmarked for Physically Handicapped persons. Accepting his case the Government was directed to create a supernumary post. He was appointed. The said order was challenged by the Government and KPSC. They were unsuccessful. His appointment has become final. He also falls outside the proceedings of this Court.
94. Sri Srikanth, the learned counsel appearing for some of the successful candidates, relying on the judgment of the Supreme Court in the case of JOGINDER PAL AND OTHERS vs STATE OF PUNJAB AND OTHERS[(2014) 6 SCC 644 urged that the candidates 148 OA No. 170/00961/2019 & Ors/CAT/BANGALORE who are meritorious are to be segregated from the tainted candidates and action should be taken only against tainted candidates. He also relied on the judgment in the case of ASHOK KUMAR PANDEY vs STATE OF WEST BENGAL [(2004) 3 SCC 349] to contend that service litigation is not public interest litigation but a private interest litigation and it should be thrown out at the initial stage itself. Relying on the judgment in the case of M.V.THIMMAIAH AND OTHERS vs UNION PUBLIC SERVICE COMMISSION AND OTHERS [(2008) 2 SCC 119] he submitted that the malafides alleged are not established. Therefore, no action can be taken on that basis. He also submitted that he would file synopsis with judgments.
1999 Batch:
95. Sri D.R. Ravi Shankar, the learned counsel appearing for some of the petitioners contended that when the selection process was under
challenge before the Karnataka Administrative Tribunal, the KPSC has destroyed the entire answer scripts, which clearly shows the malafide intention on their part. He contended that without preparation of model answer scripts, the valuation is done which has resulted in total arbitrariness in the process of valuation. The system of introducing second and third valuation is arbitrary. For aforesaid reasons he submits that the selection of 1999 Batch is liable to be quashed. 96. Per contra, Sri.P.S.Rajagopal, learned Senior Counsel appearing for the KPSC submitted that model answer scripts were prepared. It is only on that basis evaluation of answer scripts have taken place. After expiry of the period stipulated, the answer scripts have been destroyed. No motive could be attributed on that score. All other allegations made by the petitioners pointing out the irregularities in the 1999 batch of selection, is without any substance and not supported by any material on record. Therefore, he submits that there is no merit in any of those allegations.
96. Per contra, Sri.P.S.Rajagopal, learned Senior Counsel appearing for the KPSC submitted that model answer scripts were prepared. It is only on that basis evaluation of answer scripts have taken place. After expiry of the period stipulated, the answer scripts have been destroyed. No motive could be attributed on that score. All other allegations made by the petitioners pointing out the irregularities in the 1999 batch of selection, is without any substance and not supported by any material on record. Therefore, he submits that there is no merit in any of those allegations.
97. Sri.Santhosh Nagarale, learned counsel appearing for few successful candidates in the year 1999 selection, submitted that in the judgments on which reliance was placed by the petitioners, adverse inference were drawn for destruction of answer scripts. But in the instant case answer scripts were destroyed in accordance with law. Therefore, the judgment has no application to the facts of this case.
149 OA No. 170/00961/2019 & Ors/CAT/BANGALORE He also relied on the judgment of the Apex Court in the case of Girjesh Shrivastava and others Vs. State of Madhya Pradesh and others reported in (2010)10 SCC 707 to buttress his argument that no public interest litigation is maintainable in service matters and relied on several judgments, which find a place in the said judgment.
He pointed out that in the CID report, nothing is said about the 1999 selection and therefore, 1999 selection, under no circumstances should be interfered with.
98. In the light of the aforesaid material on record and in the light of the arguments canvassed, the points that arise for our consideration in these petitions are as under :-
(1) Whether the process of preparation of the eligibility list of candidates who are to be admitted for written examination and the list of candidates who are called for the personality test, is in accordance with Rule 4 read with Schedule II and in particular Note 'c' of Clause 'A' and clause (c) of the Rules?
(2) Whether the revised list prepared by the KPSC is in terms of the order passed by this Court in W.P.Nos. 12548-589/2002 and to be given effect?
(3) Whether the KPSC was justified in not taking into consideration 91 answer scripts which were subjected to third valuation on the ground that they were in excess of 10% directed by the order of the High Court? (4) Whether the selection of the 1999 batch of Gazetted Probationers is liable to be set aside for destruction of answer scripts?
(5) Whether the Writ Petition is not maintainable as it is not a Public Interest Litigation as contended by the respondents?
(6) Whether grievances pointed out with regard to individual candidates made out by both the petitioners and respondents can be gone into in these proceedings?
(7) What are the directions to be issued to the KPSC in the background of this case to prevent future repetition of the same mistakes?
(8) What order?
POINT NO.1 - RATIO VIOLATION
99. Sri M.B.Naragund, learned Senior Counsel, appearing for the petitioners contended that in the selection process during the years 1998, 1999 and 2004 there was a gross violation of ratio prescribed for general merit candidates as well as the reserved candidates. Undisputedly, a multi stage examinations are conducted. There are 150 OA No. 170/00961/2019 & Ors/CAT/BANGALORE three stages firstly, preliminary examination to determine eligibility to take written examination, written examination and thereafter a personality test. Therefore, a distinction is to be made in a multi stage selection between selection and eligibility criteria for participating in the selection process. The Government order on which reliance is placed is only for selection. When a person moves in to the arena of written examination, his eligibility criteria cannot be construed as selection for the written examination. Again, when he is to be called for personality test, the eligibility criteria is to be satisfied and that does not constitute selection.
Admittedly, for all the three years, the candidates from reserved list, find a place in the unreserved list, at the stage of written examination and personality test, which is illegal. This wrong inclusion has taken away the right of general merit candidates to be considered for selection under the general merit candidate. It violates Article 14, 16, 16(4) of the Constitution as held by the Apex Court Article 14, 16, 164 and 164A have to be harmonized and one cannot eat into seats which are earmarked for these candidates and therefore he submits that the entire selection is vitiated and it has to be re-done keeping in mind the aforesaid principles.
Pointing out the injustice done, he submits that in the 1998 selection out of 383 posts for which applications were called for, 187 posts reserved for general merit. Therefore, according to the Rules, after the preparation of merit list of the written examination, the candidates falling in the category of GM should have been called for viva voce in the ratio of 1:5 i.e., 935 candidates should have been called for. However, only 521 candidates were called for. Thus, 414 persons who had the requisite merit in the written examination were deprived of the benefit of attending the personality test because of wrong migration of reserved candidates into general merit candidate.
He pointed out that insofar as persons belonging to III A category is concerned, 11 posts were reserved in the ratio of 1:5, 55 persons ought to have been called whereas 169 persons were called for the interview, thus the benefit of attending interview is conferred on 114 persons who did not have the requisite merit to attend the personality test Similar is the case in respect of other candidates also. In that process, for the 187 posts meant for General Merit category, even persons belonging to other category have been appointed on the basis of the marks secured in the personality test though they did not have requisite merit at the earlier stage and therefore it was illegal and the selection is vitiated.
100. Sri P.S.Rajagopal, the learned senior counsel appearing for KPSC, submitted that, in a multi stage examination process each stage is independent and merit has to be considered at each stage. From the year 1975 onwards not only the KPSC but all the 151 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Governmental agencies have followed the procedure prescribed under Schedule II in terms of the Government Order dated 9.7.1975 and Annexure-II deals with mode of selection. There is no prohibition for adopting such procedure. He further submitted that though in the general category for 187 posts, they have to call 935 candidates, 521 candidates belonging to GM category have been called and 414 candidates belonging to the meritorious reserved candidates category, who by virtue of their merit are eligible to be considered as GM candidates, were called for the interview and therefore, the contention that 414 persons belonging to GM were denied the benefit of viva voce, is not correct. Similarly, so far as other categories are concerned, in calculating the number of candidates actually called, so far as 413 candidates belonging to meritorious reserved category candidates are calculated against each category and therefore, the difference pointed out is without any substance.
Therefore, he submits relying on several judgments of the Apex Court as well as this Court, the question of this Court finding fault with the said procedure which is well established would not arise at this stage. He submits it is always open to the Court if it feels a reformation is required, that could be only for the future selections by issuing appropriate direction to the Executive.
101. Sri. R. Devdas, Principal Government Advocate, on behalf of Learned Additional Advocate General submitted that Rule 8 of the Rules, 1997 provides for reservation for SC/ST and other Backward Classes. It provides, there shall be reservation of vacancies for candidates belonging to SC/ST and other Backward Classes to the extent provided for by the government by any general or special order, from time to time. It is in pursuance of these Rules, these orders are passed from time to time and followed by the Government as well as the KPSC. This is in conformity with Art.16(4) of the Constitution and also in conformity with Section 4(1) of the Karnataka SC/ST & Other Backward Classes (Reservation on appointments, etc) Act, 1990.
102. The learned Additional Advocate General Sri. Aditya Sondhi, appearing for the Government submitted that Sri.R.Devadas, was the member of the Committee constituted by the Committee of this Court and he has submitted his report and in addition to what is contained in the report his submissions are also placed on record where they did not dispute the facts set out in Tables. But they do not agree with the inference drawn by the learned counsel for the petitioner. He brought to our notice the judgments of the Apex Court and contends that in all these cases, a reserved category candidate whose name finds place in the General Merit, if in an arrangement, was not able to secure an higher post: and persons in the reserved category with less merit is able to secure higher post, then law permits moving of the reserved category candidate from the general merit list to the reserved category, in which event, seats which fell in the general merit have to 152 OA No. 170/00961/2019 & Ors/CAT/BANGALORE be filled by the general merit candidate and not by the reserved candidate, who went out of the list because of migration. At any rate, the rule in Indra Sawhney case that reservation should not exceed 50% is to be maintained.
103. Sri K M Prakash, learned counsel appearing for the meritorious candidates submit that the petitioners have not pointed out what is the violation of any law committed by the KPSC in the matter of selection. KPSC conducts selection as per the Rules framed by the Government from the inception or from time to time. Secondly, he contended, the nomenclature GM excludes castes. All persons who have merit are to be considered as GM candidates. There is no law which provides that once a person is treated as a reserved category, he should be treated as reserved category throughout the selection process and therefore, there is no substance in the contention of the petitioners.
104. Learned Senior counsel for petitioners Sri M.B.Nargund in reply pointed out that the mode of selection as per Annexure II on which reliance has been placed by learned Sr. counsel for KPSC is to be followed at the time of preparing the final list of selected candidates. It has no application at the time of preparing the list of candidates who are eligible to take the written examination and candidates who are eligible to go to the personality test. They are governed by clause (c) of the Scheme of Examination as contained in Schedule II.
105. In the light of the aforesaid submission the question for consideration is whether the procedure followed by the KPSC is in accordance with the Rules and the Government Order dated 03.05.1994 and 20.06.1995.
RELEVANT RULES :
106. In pursuance of the powers conferred on the State under Section 8 of the Karnataka State Civil Services Act, 1978, the Government of Karnataka has framed the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997 (for short hereinafter referred to as 'the Rules"). Section 4 of the Rules provide for holding of competitive examination. It reads as under : -
"4.Holding of Competitive Examinations:(1) (a) A combined Competitive examination for recruitment to one or more of the services or groups of posts mentioned in Schedule-I shall be held every year, subject to availability of vacancies, in the manner set out in Schedule-II.
(b) Government may, by order, amend Schedule-II for making any 153 OA No. 170/00961/2019 & Ors/CAT/BANGALORE addition, alteration or deletion of any subject or syllabus of a subject.
(2) The Commission shall invite applications in the prescribed form for the competitive examination from the intending eligible candidates.
(3) The candidates who apply for the competitive examinations shall clearly indicate in their application forms the services or posts for which they wish to be considered for appointment in the order of preference. They shall not be considered for such of the service or posts which are not preferred by them."
107. Rule 8 provides for reservation of Scheduled Castes, Scheduled Tribes and other Backward Classes. It reads as under:-
"8. Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes: There shall be reservation of vacancies for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes to the extent provided for by the Government by any general or Special order from time to time."
108. Rule 9 provides for conduct of competitive examination. It reads as under : -
"9. Conduct of Competitive Examinations: The Commission shall, subject to the provisions of these rules, make necessary arrangements relating to the conduct of Competitive Examination to be held by it in pursuance of rule 4 of these rules. The Commission shall openly advertise the vacancies in the Karnataka Gazette and in one or more of News Papers in regional language having widecirculation in the State specifying the condition of eligibility, the nature of competition, the provisional number of vacancies to be filled up and the reservations available 154 OA No. 170/00961/2019 & Ors/CAT/BANGALORE in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes and others."
109. Rule 11 provides for list of candidates suitable for appointment. It reads as under : -
"11. List of candidates suitable for appointment: (1) Subject to the provisions of sub-rule (3) of rule 4 and rule 8, and the number of posts advertise for each of the services in Group-'A' and Group- 'B' the Commission shall prepare separate list of names of the candidates equal to the available number of vacancies considered suitable for appointment for each of the said services in Group-
'A' and Group 'B' arranged in the order of merit determined on the basis of total marks secured in the main examination comprising written examination and personality test:
Provided that the name of a candidate shall not be included in more than one such list.
2) The list prepared under sub-
rule (1) shall be published by the Commission in the Official Gazette and the copies thereof shall be forwarded to: -
(i) the Government together with the marks secured by each of the candidates in the written examination and personality test; and
(ii) each candidate whose name is included in such list.
3) Candidates whose names are included in the list prepared in accordance with the provisions of sub-
rule (1) shall be considered for appointment to the vacancies notified in each of the services and groups of posts in the order in which their names appear in the list:
Provided that, no candidate shall be appointed unless the Government is satisfied after such enquiry and verification as may be considered 155 OA No. 170/00961/2019 & Ors/CAT/BANGALORE necessary that the candidate is suitable for such appointment."
110. As could be seen from Rule 4, the competitive examinations have to be conducted in the manner set out in Schedule II. Schedule II speaks about scheme of examination. Clause (1) and (2) reads as under : -
SCHEDULE - II SECTION - I SCHEME OF EXAMINATION The competitive examination shall comprise of two stages:-
(1) Preliminary Examination (Objective type) for the selection of candidates for the main examination and (2) Main Examination (written examination and Personality Test) for selection for candidates for various services and posts.
111. Clause (A) deals with preliminary examination. It reads as under :-
"(A) Preliminary Examination : The Preliminary Examination shall consist of two papers of objective type (multiple choice).
(i) each paper carrying 100 Questions with each question carrying two marks.
(ii) each paper shall be of a maximum of 200 marks and a duration of two hours (Total for two papers 400 Marks) in the following description, namely:-
Sl. Subject Area No. of Mark
N Questio s
o ns
PAPER - I
1 General Studies related to 40 80
National and International
importance
2 Humanities 60 120
Total 100 200
PAPER - II
1 General studies related to State 40 80
importance
156 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
2 General Science & Tech, 30 60
Environment & Ecology
3 General Mental Ability 30 60
Total 100 200
Note: -
a. The question paper shall be set
both in Kannada and English.
b. The standard of General Mental
Ability questions of preliminary
examination (aptitude test) shall be
that of X / SSLC level and the
remaining papers are that of
Degree Level.
c. The number of candidates to be
admitted to the main examination
shall be 20 times the vacancies
notified for recruitment "in the order
of merit" on the basis of the
performance in the preliminary
examination, subject to
accommodating the "same ratio" in
adequate number of candidates
belonging to the categories of
Scheduled Castes , Scheduled
Tribes, each of the other Backward
Classes and others."
112. Clause (B) deals with main examination. It reads as under:
"B. Main Examination: The Main Examination shall consist of written examination and personality test.
Written Examination:
Paper I Kannada 150 marks
Paper II English 150 marks
Papers III & IV General Studies 300 marks
for each paper
Papers V, VI, Two Subject to
VIII and VIII be selected from
the list of optional
subjects. 300 marks
for Each
subject will
each paper
Have two papers.
157 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Total marks for Written examination 2100
Note: 1. The marks obtained in compulsory papers i.e., in Kannada and in English shall be of qualifying nature. For qualifying in these papers, a minimum of 30% in each paper and 35% aggregate is prescribed. The marks obtained in these two papers shall not be considered for determining the merit for selection. Candidates who do not secure the prescribed marks in the qualifying papers, namely, Kannada and English, shall not be eligible for personality test and selection.
2. The examination shall be of conventional type.
3. The question papers shall be set both in Kannada and in English. A candidate may answer a paper either entirely in Kannada or in English.
4. The standard of the main examination except Paper I Kannada and Paper II English shall be that of Degree level. The standard of Paper I Kannada and Paper II English shall be that of First Language Kannada and First Language English respectively at SSLC level."
113. Clause (C) personality test reads as under :-
"C. Personality Test: The Commission shall call for a personality test, as far as may be, Five times the number of candidates as there are vacancies in the services in Group-A and Group-B respectively, of Schedule-I in the order of merit on the basis of the results of the Main Examination, subject to calling candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes in the same ratio to the extent vacancies are reserved for them. Personality Test shall carry a maximum of 200 marks. The object of the Personality test is to assess the personal suitability of the candidate for the service or services for which he is a candidate. The qualities to be judged at the time of personality test are mental alertness, critical powers of assimilation, clear and logical exposition, and balance of judgment, variety and depth of interest, ability for social cohesion, leadership and intellectual depth of the candidate". (Underlining by us)
114. Schedule II of the Rules provides for the scheme of examination. As is clear from Section I of Schedule II, the competitive examination shall comprise of two stages. First, preliminary examination (for the objective type).Second, main examination (written examination and personality test). These two examinations have to be conducted in stages. There are five stages in all.
158 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
115. First Stage: All the candidates who possess the academic qualification prescribed under Rule 7 are eligible to take the preliminary examination. The preliminary examination consists of two papers of objective type (multiple choice). Each paper carries 100 questions with each question carrying 2 marks and each paper shall be a maximum of 200 marks and of duration of two hours. The description of the subject area, the number of questions and marks prescribed in Paper I and Paper II are as stipulated in Schedule II. The question paper shall be set both in Kannada and English. There is no cut off marks prescribed for pass in the preliminary examination. After the preliminary examination, all the persons who had taken the examinations are included in the list on the basis of the merit. The names of the candidates are arranged in the said list purely on the basis of merit, i.e., marks secured in the preliminary examination and not on the basis of any caste consideration. At this stage the caste of the candidate is of no relevance and the question of applying the reservation policy under Article 16 (4) of the Constitution of India would not arise.
116. For example, if 10,000 candidates take the preliminary examination, after examination a list showing their performance is prepared on the basis of merit/marks secured in the preliminary examination. In other words, the names of all the candidates who wrote the preliminary examination find a place in the list showing the marks obtained by them. The names are arranged in the order of merit. As there is no cut off or minimum marks for a pass in the examination is prescribed, the list should show the names of all the persons who took the preliminary examination showing the marks secured by them. However, the names in the list shall be arranged in the order of merit.
117. Second stage: Taking the preliminary examination is a condition precedent for being eligible to take the written examination. However, all the persons who had taken the preliminary examination are not entitled to take the written examination. Clause (C) of Section I provides that the number of candidates to be admitted to the main examination shall be 20 times the vacancies notified for recruitment. In other words, as against each vacancy 20 candidates whose name finds a place in the list of candidates who had taken the preliminary examination are admitted to the written examination. Those 20 candidates against each vacancy are selected in the order of merit on the basis of the performance in the preliminary examination. Therefore, even to take the written examination, merit is the sole criteria. However, it is subject to one condition, i.e., adequate number of candidates belonging to the categories of Scheduled Caste, Scheduled Tribe and each of the other Backward Classes and others have to be accommodated in the same ratio. In other words, here a distinction is made between candidates whose merit alone is taken 159 OA No. 170/00961/2019 & Ors/CAT/BANGALORE into consideration and candidates whose caste is taken into consideration. The number of candidates to be admitted to the main examination shall be candidates who are permitted/admitted to take the examination purely on the basis of merit and equal number of candidates belonging to the reserved categories. Therefore, necessarily two lists have to be prepared at this stage. One list showing the names of the candidates belonging to the unreserved category and another list showing equal number of candidates belonging to reserved category.
118. For example, if recruitment is conducted to fill 100 (Group A and B) posts, 20 times, the 100 would be 2000. Therefore, out of 10,000 candidates whose name finds a palce in the performance list of preliminary examination, only 2000 persons are to be admitted to the main examination. Out of the 2000 students 1000 students are to be admitted from unreserved category, 1000 candidates should belong to the reserved category. In other words, equal number of reserved category and unreserved category should take the written examination. If in the list of performance of the preliminary examination, Sl. No. 1 to 2000, if there are 1500 candidates belonging to the unreserved category and 500 candidates belong to the reserved category, only 1000 out of 1500 candidates belonging to the unreserved category in the order of merit have to be admitted. It means, 500 candidates, who are less meritorious within 2000 list will not be eligible to take two written examination. As only 500 reserved candidates are found among the first 2000 candidates, remaining 500 candidates have to be selected from the list below 2000, in the order of merit, to enable 1000 candidates belonging to Scheduled Caste, Scheduled Tribe and other Backward Classes and others to take the written examination. This is what is meant by the expression "subject to accommodating "same ratio" in adequate number of candidates belong to the categories SC, ST; each of the other backward classes and others". Therefore, the ratio of 50:50 is to be maintained at the time of writing the written examination. If on the other hand, among the first 1000 candidates out of 2000 candidates, 800 candidates belong to the unreserved category and 200 belong to the reserved category, 200 candidates belonging to the unreserved category in the order of merit from the candidates below the 2000 in the list is to be selected and 800 candidates belonging to the reserved category from the candidates below the 2000 in the list are to be selected. If the procedure now followed is applied only 800 candidates from unreserved category would be eligible and 1200 candidates from reserved category would be eligible. Thus, the ratio rule of 50:50 is breached. The resultant position would be 200 meritorious candidates from the unreserved category would be denied the opportunity to write the examination. It is contrary to express provision contained in the Rules and violates Article 14 and 16(1) of the Constitution of India. Though caste/class plays a dominant role at this stage in selecting the candidates to write the written examination, the question of 160 OA No. 170/00961/2019 & Ors/CAT/BANGALORE meritorious reserved candidate being considered in the place of a general merit candidate would not arise, at this stage. There is no migration of a meritorious reserved candidate to the unreserved category, contemplated at this stage. On the contrary, the rule specifically states the "same ratio" is to be maintained between reserved and unreserved category of candidates. Therefore, at this stage two lists are to be prepared. First list containing only 1000, unreserved category candidates and second list containing only 1000 reserved category candidates.
119. Third Stage: This is the conduct of the main examination. It shall consist of written examination and personality test. Clause (B) of Section I of Schedule II speaks about the written examination, the subjects and the marks prescribed and the number of papers each candidate has to take while writing the written examination. Note 1 makes it clear that the marks obtained in compulsory papers, i..e, in Kannada and in English shall be of qualifying nature. For qualifying in these papers, a minimum of 30% on each paper and 35% aggregate is prescribed. However, the marks obtained in these two papers shall not be considered for determining the merit for selection. Candidates who had not secured the prescribed marks in qualifying papers, namely Kannada and English, shall not be eligible for personality test and selection.
120. Illustration: If 2000 persons as aforesaid, belonging to reserved and unreserved category in the same ratio, write the examination, after such examination, a list showing the result of the main examination is to be prepared. In this list also all the 2000 persons who took the written examination name finds a place. No cut off marks or minimum marks is prescribed in the Rules for passing in the examination. However, the list not only shows the marks secured by each candidate but also should disclose the category to which the said candidate belongs. All the persons whose names find a place in the list showing the results of the main examination are not eligible to be called for the personality test. The Rules provides that the Commission shall call for a personality test, as far as may be, five times the number of candidates as there are vacancies in the services in Group 'A' and Group 'B' respectively, of Schedule I. i.e., when there are 100 vacancies to be filled up, the number of persons who should be called for the personality test is only 500. In other words, among the 2000 candidates whose names find a place in the list showing the results of the main examination, only 500 persons have to be called for the personality test. The basis for the candidates being called is again in the order of merit on the basis of the results in the main examination. The same is again subject to the condition that candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes have to be called for the personality test in the same ratio to the extent vacancies are reserved for them. Therefore, even at the time of calling the candidates for personality 161 OA No. 170/00961/2019 & Ors/CAT/BANGALORE test, the ratio has to be maintained. In other words, the number of candidates to be called for the personality test belonging to the unreserved category and the reserved category should be in the same ratio. Therefore, again two lists, one of reserved candidates and the other of un-reserved candidates in the same ratio has to be prepared. Only those candidates are to be called for the personality test.
121. For 100 posts, if 500 candidates have to be called for the interview, among the 500, 250 should be from the unreserved category and 250 from the reserved category. The basis for inviting these 250 candidates in each category is again in the order of merit. As in the list showing the results of the main examination not only the marks secured by each candidate but also the category to which they belong is clearly mentioned, 250 candidates belonging to the unreserved category in the order of merit should be called to the personality test. Similarly, 250 candidates belonging to the reserved category in the order of merit should be called for the personality test. At this stage also the question of meritorious reserved candidate being called to the personality test as a unreserved candidate would not arise. Therefore again two lists, first list showing 250 names of the unreserved category and second list showing 250 names of the reserved category to be prepared.
122. Fourth Stage: The personality test shall carry a maximum of 200 marks. The object of the personality test is to assess the personal suitability of the candidate for the service or services for which he is a candidate. The qualities to be judged at the time of personality test are mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion, leadership and intellectual depth of the candidate. After such personality test, mark is awarded to each of the candidates who appear for the personality test. As the maximum marks prescribed for personality test is 200, the examiners have to award such marks the candidate is entitled to on their observation. This is the procedure prescribed under Rule 4 of the Rules.
123. The candidates whose names find a place in the two lists prepared after the written examination in the order of merit in the ratio of 1:5 are eligible to be called for the personality test. In the personality test each candidate is awarded marks based on their performance by the examiners. Therefore, after the completion of the personality test, again two lists showing the number of marks secured by each candidate in the personality test are to be prepared, i.e, first list showing the marks secured by each candidate among the unreserved candidate and second list showing the marks secured by each candidate among the reserved candidate.
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124. Therefore, there will be two lists in each category one list showing the marks secured in the written examination and another list showing the marks secured in personality test.
125. FIFTH STAGE: Rule 11 of the Rules provides for preparation of list of candidates suitable for appointment. It provides that, subject to the provisions of sub-rule (3) of Rule 4 and Rule 8, and the number of posts advertised for each of the services in Group 'A' and Group 'B', the Commission shall prepare separate lists of names of the candidates equal to the available number of vacancies considered suitable for appointment for each of the said services in Group 'A' and Group 'B' arrange in the order of merit determined on the basis of total marks secured in the main examination comprising written examination and personality test, provided that the name of a candidate shall not be included in more than one such list. Therefore, it provides for preparation of consolidated list of names of the candidates equal to the available number of vacancies in the order of merit determined on the basis of total marks secured in the main examination comprising written examination and the personality test. In other words, the marks secured by the candidate in the written examination and the personality test is to be totaled. Thereafter, a merit list is to be prepared.
126. Rule 8 of the Rules provide that, there shall be reservation of vacancies for candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes to the extent provided for by the Government by any general or special order from time to time. The preparation of list of candidates suitable for appointment is subject to Rule 8. The Government of Karnataka by an order dated 3.5.1994 has provided how the reservation of appointments in direct recruitment to the State Civil Services under Article 16 (4) of the Constitution of India is to be made. The said Order provides for mode of selection. Para 5 of the said order prescribes that, the order of selection to be followed for the proper implementation of the reservation provided in this Order, is given in Annexure-2. This shall be followed by the Public Service Commission and all other selecting authorities. Annexure-2 to the said Government Order dealing with mode of selection reads as under : -
"GOVERNMENT ORDER NO.DPAR 2 SBC 94, BANGALORE DATED: 3RD MAY, 1994 ANNEXURE-2 MODE OF SELECTION
a) The concerned Selection Authority shall first prepare consolidated list of all eligible applicants irrespective of 163 OA No. 170/00961/2019 & Ors/CAT/BANGALORE their caste, tribe, class and arrange them in the order of merit (hereinafter called the First List).
b) The Selecting Authority shall then prepare from out of the First List a second list (hereinafter called the Second List) containing the names of applicants equal to the number of posts to be filled up on the basis of general merit (i.e., the number of posts other than those reserved in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes) arranging them in the order of merit commencing with the first name in the First List.
c) The Selecting Authority will then prepare from out of the First List, excluding the portion forming the Second List, a Third List (herein after called the Third List) containing the names of applicants belonging to the Scheduled Castes, Scheduled Tribes and other groups of Backward Classes equal to the number of vacancies reserved for each reserved category in the order of merit determined in the First List.
d) The Selecting Authority will then prepare a final list (which may called the Main List) of selected candidates for appointment to the category of posts for which selection is made, by arranging the names of candidates included in the Second List and the Third List in the order of merit.
e) Where the 'Additional List' has to be prepared in accordance with rules of recruitment, the Selecting Authority shall prepare the additional list by adopting the method mentioned at (a) (b) (c) & (d) above, from among the names excluding the names which are included in the Main List, from the first list."
127. Therefore, it is clear that, first a consolidated list of eligible applicants irrespective of their caste, tribe, class, is to be prepared and arranged in the order of merit which is called the first list.
128. The word used is, "consolidated list". Till such stage is reached, necessarily, there should be more than one list. One list of meritorious unreserved candidates and one list of meritorious reserved candidates. It is to maintain the ratio of 50:50 stipulated under the Rules, at the time of admitting the students to take the written examination and calling for Personality Test, two separate merit lists are to be maintained. It is at the stage of preparation of the list of candidates suitable for appointment, the Rule 11 provides for reservation of vacancies. At that stage, the Government Order mandates that the Selection Authority shall first prepare consolidated 164 OA No. 170/00961/2019 & Ors/CAT/BANGALORE list of all eligible applicants irrespective of caste, tribe, class and arrange them in the order of merit. Till such time in the preparation of list, caste, tribe, class, plays a dominant role, in order to give equal opportunity to all of them. At the time of appointment, merit is the criteria. This consolidated list is called the First list. In other words, the first list contains the names of all the persons who are called for personality test and the marks secured by them both in the written examination and the personality test. Their names are arranged in the order of merit. From out of this list a second list containing the names of the candidates equal to the number of posts to be filled up on the basis of general merit, i.e., the number of posts other than those reservation in favour of Scheduled Caste, Scheduled Tribes and Other Backward Classes arranging them in the order of merit commencing with the first name in the first list. It is here for the first time the word "GENERAL MERIT" is used and explained. General merit means the number of posts other than those reserved in favour of Scheduled Caste, Scheduled Tribe and other Backward Classes. According to the Government order dated 31.01.1995 and 20.06.1995 the number of post reserved for Scheduled caste, Scheduled tribe and other Backward Classes is 50%. The remaining 50% posts are to be filled up by the General Merit category. This reservation is in consonance with the law laid down by the Apex Court in Indira Sawhney's case. The relevant portion of the Government Order dated 20.06.1995 reads as under:
" ದ ಂಕ 31-1-
1995ಸ ಆ ಶದ ಂ ದವಗ ದವರ ೕಸ ಪ
ಣವ ಕ "50 " ಗ ಪ ದ ನ ಯ ಜ
ಗಳ, ಸ ರದ ಅ ೕನದ ಬ ವ ಗಳ ಅಥ
ಗಳ ಮ ಯ ರತ ನದ 16 (4)
ಅ ೕದದ ಪ ರ ಅಳವ ಸ ದ ೕಸ ಬ
ಪ ೕ ಸ ."
129. After the preparation of the second list then excluding the portion forming the second list, a third list has to be prepared from out of the first list containing the names of candidates belonging to the Scheduled Caste, Scheduled Tribe and Other Groups of Backward Classes equal to the number of vacancies reserved for each reserved category in the order of merit determined in the first list. After this exercise, then a final list which is called the main list of selected candidates for appointment to the category of posts for which the selection is made by arranging the names of candidates included in the second list and the third list in the order of merit. While preparing this list, the reservation policy of the State under Article 16(4) of the Constitution is to be given effect to. It is at this stage, a meritorious unreserved category could be considered as a General Merit category because of his merit.
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130. This is the procedure contemplated by the Rules for holding of competitive examinations, conduct of competitive examinations and the manner in which adequate number of candidates belonging to the categories of Scheduled Castes/Scheduled Tribes, each of the Other Backward Classes and Others is to be accommodated in the same ratio as that of candidates belonging to the unreserved category. Now, the question is whether KPSC has followed this procedure in conducting these examinations and in preparing the list of suitable candidates.
PROCEDURE FOLLOWED BY THE K.P.S.C.
131. The petitioners contend there is violation of ratio rule 1:20 for main examination and 1:5 for personality test resulting in serious discrimination to the candidates. The petitioners have provided data in Table A12, B2 and C4 at pages 31, 64 and 90 of the Report of the committee constituted by the High Court. The respondents do not dispute the figures mentioned in the Table. But, they contend the conclusion of the Petitioner Members is incorrect and there is no variation of ratio policy of either 1:20 in calling for main examination or 1:5 in calling for personality test.
132. The KPSC meeting the case of the petitioners has filed the counter affidavit in respect of the conclusions contained in the report dated 31.01.2014 of the Fact Finding Committee filed on 31.1.2014. The said affidavit was filed on 19.2.2014. The relevant portion reads as under : -
j) In re: Point No.10: It is alleged by the Petitioner Members in Point No.10 that there is a violation of ratio rule of 1:20 for main examination (for short 'Mains') and 1:5 for personality test (for short 'PT') resulting in serious discrimination to candidates. In support of the said conclusion, the Petitioner Members have provided data in Table A12, Table B2 and Table C4 at Pages 31, 64 and 90 of the report respectively. The conclusion of the Petitioner Members is incorrect and there is no violation of ratio policy of either 1:20 in calling for mains or 1:5 in calling for PT.
Consequently there is no discrimination to candidates as concluded by the Petitioner Members. The Karnataka Recruitment of Gazetted Probationers (Appointed by competitive examinations) Rules, 1997 (for short 'GP Rules of 1997') provides that the candidates to be called for the mains shall be in the ratio of 1:20 to the number of posts notified and the candidates to be called for PT shall be in the ratio of 1:5 to the number of posts notified (presently amended to 1:3). The said rules do not provide as to the manner in which the said calculation of 1:20 and 1:5 has to be carried out vis-à-vis the different categories to which reservation is provided. The 166 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Commission in determining the candidates eligible in the 1:20 or 1:5 ratio, follows the procedure prescribed in Annexure-2 to the Government Order dated 03-05-1994 and Annexure-2 of the Government Order dated 20- 06-1995. As per the said Government Orders, the selecting authority is to first prepare consolidated list of all the eligible applicants irrespective of their caste, tribe, class and arrange them in the order of merit, which list is referred to as the first list. Thereafter, the selecting authority is to prepare the second list from out of the first list containing the names of the applicants equal to the number of posts to be filled up on the basis of General Merit arranging them in the order of merit commencing with the first name in the first list. Thereafter selecting authority has to prepare from out of the first list, excluding portion forming the second list, a third list containing the names of the applicants belonging to the Schedule Castes, Schedule Tribes and other backward classes equal to the number of vacancies reserved for each category in the order of merit determined in the first list. The said procedure is followed in finalizing the 1:20 and 1:5 lists. However, in the second list containing the candidates considered as General Merit there could be reserved category candidates, which number of reserved category candidates is also computed by the Petitioner Members in Table A12, Table B2 and Table C4 as against the respective Category, thereby arriving at the distorted figures in order to highlight so called category violation. On facts, in respect of the three selections in question, there is no category violation as concluded by the Petitioner Members and the said conclusion is factually incorrect in the light of the explanation above.
k) In re: Point No.11: The Petitioner Members have concluded that the categories of candidates have been arbitrarily changed and in support thereof have been furnished data in Table A18 and Table C10. it is submitted that the said assertion and conclusion of the Petitioner Members is factually incorrect. The list of candidates to be called for PT in the ratio of 1:5 is prepared in the manner as stated in Point No.10 above, which is as per the Government Orders dated 03-05-1994 and 20- 061995. in the said process it is only logical and permissible that candidates who have applied under a particular category are selected or called for PT under General Merit (for short 'GM'). There is no manipulation and the Petitioner Members have used the words 'category purposefully manipulated' and there is no material in support of the said conclusion apart from indicating that the said candidates in Table A18 and C20 had claimed a specific reservation in both their prelims and mains but were eligible for PT on the basis of their merit under General Merit. In the light of the explanation furnished in 167 OA No. 170/00961/2019 & Ors/CAT/BANGALORE respect of Point No.10, the said conclusion of the Petitioner Members is factually incorrect.
133. From the said averments in the affidavit it is clear that, according to the KPSC, the Rules of 1997 do not provide as to the manner in which the ratio of 1:20 and 1:5 has to be carried out vis-à-vis the different categories to which reservation is provided. The Commission is determining the candidates eligible in 1:20 or 1:5 ratio following the procedure prescribed in Annexure-2 to the Government Order dated 3.5.1994 and Annexure-2 of the Government Order dated 20.6.1995 referred to supra. According to them, as per the said Government Orders, the selecting authority has to first prepare a consolidated list of all the eligible applicants irrespective of their caste, tribe, class and arrange them in the order of merit, which list is referred to as the first list. Thereafter, the selecting authority has to prepare the second list from out of the first list containing the names of the applicants equal to the number of posts to be filled up on the basis of General Merit arranging them in the order of merit commencing with the first name in the first list. Thereafter, the selecting authority has to prepare from out of the first list, excluding portion forming the second list, a third list containing the names of the applicants belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes equal to the number of vacancies reserved for each category in the order of merit determined in the first list. The said procedure is followed in finalizing the 1:20 and 1:5 lists. According to them, in the second list containing the candidates considered as General Merit, there could be reserved category candidates, which number of reserved category candidates was also computed by the Petitioner Members in Table A12, B2 and C4 as against the respective Category, thereby arriving at the distorted figures in order to highlight so called category violation. Therefore, they contend the conclusion of the Petitioner Members is factually incorrect.
134. From the aforesaid affidavit it is clear that the KPSC has followed the procedure prescribed in the Government Order dated 3.5.1994 and 20.6.1995 in preparing the eligibility list of candidates who are eligible to take the written examination. Similarly, by applying the Government Order they have also prepared a list of candidates who are eligible to take the personality test and they have also followed the said Government Order at the time of preparing the list of suitable candidates for appointment. Is this procedure consistent with the Rules and the Government Orders?
135. As could be seen from the scheme of examination as provided in clause (A), the number of candidates to be admitted to the main examination shall be 20 times the vacancies notified for recruitment in the order of merit, on the basis of the performance in the preliminary examination subject to accommodating the same ratio in adequate number of candidates belonging to the categories of Scheduled 168 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Castes, Scheduled Tribes, each of the Other Backward Classes and Others. The word used is "same ratio". i.e., the number of candidates to be admitted to the main examination should be in the same ratio means the number of candidates belonging to Scheduled Castes, Scheduled Tribes and each of the Backward Classes and Others should be equal to that of the candidates who do not belong to the said category. The word used is 'adequate number of candidates'. In other words, the number of candidates belonging to the unreserved category who are admitted to the written examination and number of candidates belonging to the reserved category who should be admitted to the reservation, should be the sames. Therefore, two lists have to be prepared, one is the list showing candidates belonging to the unreserved category and the second list showing the reserved category. While preparing these two lists there is no inter se merit to be taken note of. These lists are list of candidates eligible to take the written examination and not list of candidates suitable for employment in the order of merit, which is called the First List in the Government Order dated 03.05.1994. Similarly, after the written examination also while calling the said successful candidates to the personality test, the same procedure is to be followed. i.e., prepare 2 lists, one list of unreserved candidates and one list of reserved candidates in order of merit. These two lists are list of candidates eligible to be called for personality test. It is not a list of candidates suitable for employment. It is only after completion of the personality test, the marks secured by each candidate in the written examination and personality test is totaled and a consolidated list of eligible candidates irrespective of their caste, tribe, class is arranged. The said Government Order is to be followed only at the stage of preparation of list of candidates suitable for appointment under Rule 11 as is clear from the wordings of Rule 11. At the time of admitting candidates for written examination and at the time of calling the candidates for personality test, the number of candidates to be admitted to the written examination and called for personality test should be in the same ratio of persons belonging to reserved category and unreserved category. Clauses (A) and (C) specifically refers to the word 'same ratio'. Therefore, at that stage the question of any meritorious unreserved category candidate being called either for written examination or for the personality test as an unreserved category would not arise. By wrongly applying these Government Orders at this two stages, substantial number of unreserved candidates who are meritorious are denied the opportunity to take the written examination as well as the personality test. The understanding of KPSC that Rules of 1997 do not provide as to the manner in which the ratio of 1:20 and 1:5 has to be carried out is erroneous, in the light of the express provision setting out how the list of candidates to be admitted to the written examination and list of candidates to be called for the personality test. Therefore, the error is apparent.
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136. The number of candidates who are affected and denied opportunity to take the personality test are set out as here under :-
TABLE - A12 - 1998 Sl. Category Number Number Number Difference Ratio No. of Posts to be actually in the Difference allotted actually called number to each called category
1. GM 187 935 521 GM -414 BC 1:2.78 &GM/XMP
2. SC 64 320 393 +73 1:6.14
3. ST 19 95 114 +19 1:6
4. C-1 22 110 142 +32 1:6.45
5. 2A 52 260 354 +94 1:6.80
6. 2B 17 85 114 +29 1:6.70
7. 3A 11 55 169 +114 1:15.36
8. 3B 11 55 116 +61 1:10.51 TOTAL 383 1915 1923 TABLE - B2 - 1999 Sl. Category Number Number Number Difference Ratio No of Posts to be actually in the difference allotted called in called for number to each 1:5 Personality category Ratio Test
1. GM & 96 480 275 -205 1:2.86 GM/XMP
2. SC & SC 32 160 201 +41 1:8.56
- XMP
3. ST 09 45 54 +09 1:6
4. C-1 07 35 57 +22 1:8.14
5. 2A & 2A 28 140 182 +42 1:6.50
- XMP
6. 2B 08 40 51 +11 1:6.38
7. 3A 05 25 53 +28 1:10.60
8. 3B 06 30 68 +38 1:11.33 TOTAL 191 955 941 -14 TABLE - C4 - 2004 170 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Sl. Category Number Number Number Difference Ratio No. of Posts to be actually in the difference allotted called in called number to each 1:5 category Ratio
1. GM & 75 375 93 -282 1:1.24 GM/XMP
2. SC 25 125 168 +43 1:6.72
3. ST 07 35 45 +10 1:6.43
4. C-1 08 40 55 +15 1:6.88
5. 2A 21 105 177 +72 1:8.42
6. 2B 05 25 36 +11 1:7.20
7. 3A 06 30 106 +76 1:17.66
8. 3B 06 30 79 +49 1:13.16 TOTAL 153 765 759 -6
137. The KPSC has placed on record the Reserved Category candidates selected under the General Merit in 1998, 1999 and 2004 Gazetted Probationers Examination.
"Reserved Category candidates selected under General Merit in 1998, 1999 and 2004 Gazetted Probationers Examinations 1998 Gazetted Probationers Examinations Sl. Category No. of Candidates No. 1. SC 1
2. ST Nil
3. Cat-1 Nil 4. 2A 3 5. 2B 1 6. 3A 28 7. 3B 2 Total 35/187 1999 Gazetted Probationers Examinations Sl. Category No. of Candidates No.
1. SC Nil
2. ST Nil 3. Cat-1 2
4. 2A Nil 5. 2B 2 6. 3A 4 171 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 7. 3B 3 Total 11/96 2004 Gazetted Probationers Examinations Sl. Category No. of Candidates No.
1. SC Nil
2. ST Nil
3. Cat-1 Nil 4. 2A 2 5. 2B 2 6. 3A 14 7. 3B 8 Total 26/74
138. Table A12 discloses the number of persons who are called to the personality test in the 1998 batch. The total number of posts for which recruitment took place was 383 posts. 50% of which is 187. Therefore 187 posts have to be filled up by general merit candidates and the remaining 50% of the posts have to be filled up from reserved category candidates. The ratio in which the candidates who have passed the written examination is to be called for the personal interview is 1:5. Therefore, as against the post of 187 ear marked for general merit category, 935 candidates belonging to general merit category who had taken the written examination had to be called for the personality test in the order of merit. The Table discloses that only 521 candidates belonging to the General Merit category were called for the interview. 414 candidates belonging to unreserved category were denied the opportunity to participate in the personality test. The said Table also discloses that the various reserved category and the number of posts allotted to each such category. It also discloses the number to be actually called and number actually called. To fill up 64 posts reserved for Schedule Caste, 320 persons in the reserved category should have been called for the personality test. However, 393 candidates were called for the interview. Thus, 73 more candidates than what is prescribed under the law were called for the interview. Similarly, as against 19 posts reserved for Scheduled Tribe, 95 persons ought to have been called for the personality test. Whereas, 114 persons were called, i.e., 19 persons were in excess of the prescribed ratio. Similarly, 22 posts reserved for C-1 category, 110 should have been called for the personality test, whereas, 142 persons were called for. Thus, 32 candidates exceeded the prescribed ratio. Similarly, as per the Table, for category 2A-94 persons, category 2B-29 persons, category 3A-114 persons and category 3B-61 candidates, more than the prescribed limit were called for. Table B2 contains the particulars of the number of candidates 172 OA No. 170/00961/2019 & Ors/CAT/BANGALORE called for in the 1999 batch and Table C4 gives the number of candidates called for 2004 batch.
139. In order to demonstrate the illegality and the consequences flowing therefrom, let us take the case of candidates belonging to 3A category in all the three years, i.e., 1998, 1999 and 2004.
140. The aforesaid tables disclose that in the year 1998, as against 11 posts which were ear marked for category 3A, 55 candidates should have been called for the personality test. Whereas, three times the number of candidates are called for the personality test, i.e., 169 candidates belonging to 3A category were called for the personality test. In other words, 114 candidates belonging to the unreserved category were denied the opportunity to participate in the personality test.
141. In the 1999 batch, 5 posts were reserved for 3A category. Therefore, 25 candidates belonging to 3A category should have been called for the Personality Test. Whereas, double the number of candidates namely 53 candidates were called for the Personality Test, i.e, 28 candidates more than what is prescribed were called for the Personality Test. In other words, 28 candidates belonging to unreserved category were denied the opportunity to participate in the personality test because of this illegality.
142. Similarly, in the 2004 batch, 6 posts were ear marked for 3A category and 30 candidates should have been called for the personality test, where as, 106 candidates have been called. Thus, 76 candidates belonging to general merit has been denied the opportunity of being called for the personality test.
143. The explanation offered for this discrepancy is, by application of the Government Order even at that stage meritorious candidates belonging to the reserved category were called for the personality test. Therefore it patently violates the Rule prescribed. The injustice which is done because of this wrong procedure is apparent. If we look into the Table furnished by the KPSC giving the particulars of the reserved category candidates selected under the General Merit in 1998, 1999 and 2004 Gazetted Probationers Examinations, in 1998 batch, 28 persons belonging to 3A category find a place in the general merit category in 1998 Batch, whereas, 14 persons find a place in the general merit category who belong to 3A category in 2004 Batch. In fact, 35 out of 187 candidates reserved for general category has been filled up by reserved category. 11 out of 96 candidates in 1999 batch were filled up by reserved category and 26 out of 74 persons belonging to reserved category are appointed in the general merit category. Thus wrong application of the Government Order has denied equal opportunity to the meritorious candidates belonging to 173 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the unreserved category thus violating Article 14 and 16(1) of the Constitution.
144. In the 1998 selection, in all 414 candidates belonging to general merit and in the 1999 batch, 205 candidates belonging to general merit and in the year 2004, 282 candidates belonging to general merit were denied an opportunity to participate in the personality test, thus seriously affecting their fundamental right guaranteed under the Constitution under Article 14 and 16(1) as well as the right conferred on them under the Rules.
PRACTICE
145. Sri. P.S. Rajagopal, learned Senior Counsel appearing for the KPSC contended that from the year 1975 onwards, not only the KPSC but all the Governmental agencies have followed the procedure prescribed under Schedule II in terms of the Government Order dated 09.07.1975 and Annexure-2 deals with the mode of selection. Relying on the several judgments of the Apex Court, as well this Court, he submitted that the question of this Court finding fault with the said procedure which is well established would not arise at this stage. However, it is always open to the Court if it feel a reformation in the procedure followed by the KPSC is required, that could be done only for future selection by issuing appropriate direction to KPSC in this regard.
146. The learned Counsel for the petitioners Sri Vikram Phadke submitted that when the procedure followed is unconstitutional and offending Article 14 and 16(1) of the Constitution, the question of this Court declining to interfere with the said procedure on the ground that it is in force for long period would not be proper. As it is unconstitutional, it requires to be set aside.
147. In support of his contention, the learned Senior Counsel Sri. P.S. Rajagopal, appearing for KPSC, relied on the following judgments:
148. The Apex Court in the case of S.B.BHATTACHARJEE vs S.D.MAJUMDAR AND OTHERS reported in 2007 (10) SCC 513 dealing with the weight to be attached to the practice which is followed for a considerable time held as under : -
"19. The Rules indisputably envisage that a person having an overall grading of 'outstanding' shall alone be considered vis-a- vis who do not come within the purview of the gradation of outstanding despite the fact that in their service career they might have received overall grading of 'Very Good'.
27. It may be that in a given case, the court can with a view to give effect to the intention of the legislature, may read the 174 OA No. 170/00961/2019 & Ors/CAT/BANGALORE statute in a manner compatible therewith, and which would not be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. But, however, it is also necessary for us to bear in mind the illustration given by the executive while construing an executive direction and office memorandum by way of executive construction cannot be lost sight of. It is in that sense the doctrine of cotemporanea expositio may have to be taken recourse to in appropriate cases, although the same may not be relevant for construction of a model statute passed by a legislature.
28. In G.P. Singh's 'Principles of Statutory Interpretation, 10th Edn. at p. 319, it is stated :
"But a uniform and consistent departmental practice arising out of construction placed upon an ambiguous statute by the highest executive officers at or near the time of its enactment and continuing for a long period of time is an admissible aid to the proper construction of the statute by the Court and would not be disregarded except for cogent reasons. The controlling effect of this aid which is known as 'executive construction' would depend upon various factors such as the length of time for which it is followed, the nature of rights and property affected by it, the injustice result from its departure and the approval that it has received in judicial decisions or in legislation.
Relying upon this principle, the Supreme Court in Ajay Gandhi v. B. Singh having regard to the fact that the President of the Income Tax Appellate Tribunal had been from its inception in 1941 exercising the power of transfer of the members of the Tribunal to the places where Benches of the Tribunal were functioning, held construing Sections 251(1) and 255(5) of the Income Tax Act that the President under these provisions has the requisite power of transfer and posting of its members. The court observed : "For construction of a statute, it is trite, the actual practice may be taken into consideration."
Contemporary official statements throwing light on the construction of a statute and statutory instruments made under it have been used as contemporanea expositio to interpret not only ancient but even recent statute both in England and India."
149. The Supreme Court in the case of DR. UMA KANT Vs. DR. BHIKALAL JAIN AND OTHER reported in (1992) 1 SCC 105dealing with the procedure in vogue for considerable time has held as under: -
"9. If we examine the matter from another angle, it would be clear that according to the university such a procedure is in 175 OA No. 170/00961/2019 & Ors/CAT/BANGALORE vogue in all the universities of Rajasthan that a reserve list is used for the appointment on a vacant post caused during the validity period of the reserve list, and numerous appointments had been made in the last decade from the reserve list. The university has also submitted that if the view taken by the High Court is held to be correct, it will create chaotic situation in the university as all appointments so far made from the reserve list will become assailable. It is well settled that in matters relating to educational institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities."
150. The Apex Court in the case of N.SURESH NATHAN AND ANOTHER Vs. UNION OF INDIA AND OTHERS reported in 1992 (Supp) 584 regarding the weightage to be given to the practice followed in the department for a long time held as under : -
"4. In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents Diploma-holders that the practice followed in the Department for a long time was that in the case of Diploma-holder Junior Engineers who obtained the Degree during service, the period of three years' service in the grade for eligibility for promotion as Degreeholders commenced from the date of obtaining the Degree and the earlier period of service as Diploma-holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents Diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6,1968 extracted at pages 99-100 of the paper book in the counter affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined".
151. The word "as far as may be" found in the personality test clause
(c) in the Rules of 1997, was the subject matter of interpretation by the Karnataka Administrative Tribunal in the case of KADALI S.M. AND OTHERS Vs. KPSC, BANGALORE AND OTHERS reported in 1996 KSLJ 553. There they were interpreting the said phrase contained in Rule 9 of the 1966 Rules which is in para materia with 176 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the personality test found at clause (c) in the earlier portion. It held as under : -
"22. RE. OUESTION NOS 6 &7 :-
Rule 9 of the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1966, reads,-
"Candidate to be called for Personality Test,-- The Commission shall call for a personality test, as far as may be, ten times the number of candidates as there are vacancies in the services in the services in categories I and II respectively, of schedule I in order of merit on the basis of the results of written papers subject to making provisions for calling candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward Classes to the extent vacancies are reserved for them."
There is no dispute that the number of candidates to be called for interview, referred as 'ten' has been amended, as 'five times'.
The Applicants contend that the candidates listed for interview far exceeded five time the number of posts to be filled up.
The Service Commission explained the position, by pointing out that if only five time the number of posts are considered in abstract, it was impossible to consider the cases of candidates belonging to the reserved categories and the latter part of the above Rule required the Service Commission to consider this aspect also. The five times number on the basis of merit in the written examination did not include requisite number of those belonging to the categories of Scheduled Caste, Scheduled Tribes and other Backward Classes and that in each category the candidates to be called for interview shall have to be five times the posts to be filled up. The candidates belonging to these reserved categories are to be first considered in the General merit Category because they are entitled to compete for selection in that category also. Further, Rule 9 of the said Rules does not prescribe an inflexible, rigid principle; it is a rule of guidance.
We agree with the contention of the Service Commission. The Chart produced by the Service Commission shows that it was necessary to call a large number of candidates than five times the posts to be filled up. This part, Rule 9 of the said Rules itself indicates that it is a rule of guidance; it states,-
177 OA No. 170/00961/2019 & Ors/CAT/BANGALORE "The Commission shall call for a personality test, as far as may be, five times the number of candidates as there are vacancies......"
( Emphasis is ours.).
The phrase 'as far as may be' vests a discretion in the Service Commission to decide upon the number of candidates to be called for personality test, depending upon circumstances or the situation in a particular case.
The Supreme Court construed this phrase, found in a Rent Control Legislation in SUBRAMANIAM SHANMUGHAM v. RAJENDRAN M.L. AND OTHERS, the Court held that the phrase means, 'as the situation may be'.
Even otherwise, we fail to understand as to how the Applicants can question the number of candidates called for personality test. They cannot restrain the number of competitors. More the number, means a larger zone of consideration and there is a chance of some extra-ordinary personality stepping into the field of consideration.
The contention of the Applicants is, accordingly, rejected."
152. The Apex Court in the case of RAJENDRA SINGH AND OTHERS Vs. STATE OF U.P AND OTHERS reported in 1998 (7) SCC 654 explaining the words "as far as possible" used in Section 12A of the UP Imposition of Rent Act, 1960 held as under : -
"6. The words "as far as possible" have been used in the main Section as also in Clause (d) of the Proviso. These words are not prohibitory in nature. They rather connote a discretion vested in the Prescribed Authority who can exercise that discretion at the time of carving the surplus area from out of the total holding of a person.
7. Section 5(1) provides that a tenure-holder shall not be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him.
8. Section 9 provides that the Prescribed Authority shall, by general notice, published in the official Gazette, call upon every tenure-holder holding land in excess of the ceiling area applicable to him, to submit a statement in respect of all his holdings wherein he shall also indicate the plots which he would like to retain as part of his ceileing area. It is this choice which referred in Section 12-A and it is provided that the Prescribed Authority shall, as far as possible, accept the choice indicated by the tenure-holder as to the plots which he would like to retain 178 OA No. 170/00961/2019 & Ors/CAT/BANGALORE as part of his ceiling area. It is at this stage, that the description can be exercised by the Prescribed Authority and he may not take over those plots as part of the surplus area. It is thus "discretion", and not "compulsion", which constitutes the core of this statutory provision. It is obvious that before taking over any area as surplus area or leaving any area as ceiling area of the tenure-holder, the Prescribed Authority shall first take into consideration the choice indicated by the tenureholder and if it is not possible, to act wholly upon the choice, for which there may be variety of reasons, the Prescribed Authority will proceed in his own way to leave the area determined by him as the ceiling area with the tenure-holder and take over the other area as surplus area."
153. Reliance was placed on a Division Bench judgment of this Court in the case of N.SRIRAMAN VS. UNION OF INDIA AND OTHER, reported in 2004 (7) KANT LJ 152 where the question for consideration was, in the absence of an order of appointment of selected officers, whether the Administrative Tribunal has jurisdiction to stay the selection process. It was held as under:
"16. The process of selection is in the present case conducted at different stages and passes through the scrutiny of different constitutional authorities. Each stage dealt with by such authority may in the wider sense of the term constitute an order within the meaning of Section 19 which would suffice for purposes of invoking the jurisdiction of the Tribunal.
17. There is yet another angle from which the question can be examined. The jurisdiction of the Tribunal being wide and all embracing, the provisions of Section 19 which are meant to regulate the procedure for invoking the said jurisdiction alone prevent the exercise of the same only on account of the absence of any procedural formality or deficiency. Procedure whether the same is prescribed for trial of cases by Civil Courts or for adjudication of disputes by Tribunals is primarily aimed at facilitating an adjudication and ensuring that the same is arrived at in a manner that is fair and just so that it inspires the confidence of all concerned. It is only when the language employed in the statute in so couched as to make a particular provision, no matter procedural in nature, mandatory that the same may be treated to be so. In order that any such procedural requirement may be mandatory, the legislation ought to prescribe the consequence flowing from the failure of the requirement or the language employed should be so unmistakably clear that no other conclusion may be possible except that the provision is mandatory. The Legislature in this regard often employs use of negative words which are an indication of the provision being mandatory in nature."
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154. A reading of the aforesaid judgments demonstrates that a procedure which is in vogue for a considerable length of time should be respected. If two interpretations are possible, the Court would ordinarily be reluctant to accept that interpretation which would upset and reverse the long of course of action. Therefore, in the aforesaid judgments, they declined to interfere with the procedure which is followed for a considerable length of time.
155. In the instant case, it is not a case of a particular procedure being followed in the absence of any rule of law in that regard. The Karnataka Legislature has passed the Karnataka State Civil Services Act, 1978, (Karnataka Act No.14/1990) providing for recruitment of Gazetted Probationers in exercise of powers conferred by sub-section (1) of Section 3 read with Section 8 of the said Act, the Government of Karnataka has made the Karnataka Recruitment of Gazetted Probationers (Appointment of Competitive Examinations)Rules, 1997. The said Rules provides for holding of competitive examination, conduct of competitive examination, reservation for Scheduled Caste and Scheduled Tribe and other Backward Classes and how the list of candidates suitable for appointment should be prepared.
156. The area is fully covered by Legislation. Further the Schedule to the said Rules provides for Scheme of Examination. Thereafter the Government Order dated 03.05.1994 and 20.06.1995 provide for reservation of appointments in direct recruitment in the State Civil Services under Article 16(4) of the Constitution of India. This Government Order dated 3rd May, 1994 is to be followed while preparing the list of candidates suitable for appointment as provided under Rule 11. These Rules and Government Orders are in conformity with Article 16(4) of the Constitution of India. While giving effect to these Rules and Orders, KPSC has ignored the Constitutional goal and scheme.
157. Article 14 of the Constitution provides that State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Similarly, Article 16(1) of the Constitution of India provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16(2) provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. The procedure that is followed by the KPSC offends Article 14 as well as Article 16(1) and (2).
158. Article 13 of the Constitution declares that the clause inconsistent with or in derogation of the fundamental rights be void. Clause (a) of Sub-Article (3) of Article 13 provides that in this Article, 180 OA No. 170/00961/2019 & Ors/CAT/BANGALORE unless the contest otherwise requires, 'law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Sub-Article (1) of Article 13 declares that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far they are inconsistent with the provisions of this part shall, to the extent of such inconsistency be void. Similarly, sub-Article (2) declares that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
159. The effect of the procedure that is being followed by the KPSC in the recruitment process is, unreserved category candidates are deprived of an equal opportunity in the matter relating to employment as well as appointment to a Office in the State. This infringes their fundamental right of equality before law and equal opportunity in matters of public employment. Therefore the procedure followed by them being contrary to the Rules and the Government Orders, and as it offends Article 14 and 16(1) of the Constitution, the said procedural lapse cannot be condoned under any circumstances.
160. Therefore, the aforesaid judgments on which reliance is placed really have no application to the facts of this case as in none of those cases the long practice for a long period of time did offend any fundamental rights of the citizens of this Country much less, the fundamental right under Article 14 and 16 of the Constitution.
LEGAL POSITION:
161. Public employment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that commodity. This is reality of life. The concept of 'equality of opportunity' in public employment concerns an individual, whether that individual belongs to general category or backward class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class under Article 16 (4) has to be balanced. Backward classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of Scheduled Caste and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16(1) is individual- specific whereas reservation in Article 16(4) and Article 16(4A) is enabling. reservation under Article 16(4) is intended merely to give adequate representation to backward 181 OA No. 170/00961/2019 & Ors/CAT/BANGALORE communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of backward classes and claims of other employees as well as the requirement of efficiency of administration. Article 16(4) speaks of adequate representation, but not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant. The proportion of the population of a caste is a consideration to be taken note of in determining the percentage of representation to be given to that caste in the 50% posts reserved for SC and ST and other Backward Classes. It has no relevance in determining the percentage of representation to be given in the total posts to be filled up. It is because the Supreme Court in the case of Indira Sawhney has fixed the percentage of 50% to be filled up by reserved category. Irrespective of the population, the reservation cannot exceed 50% of the total number of posts. In this regard, it is relevant to notice the object behind Article 16(4) as explained by Dr. B.R. Ambedkar in the Constituent Assembly.
"...there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be euqlity (Sic.) of opportunity for all citizens. It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality or opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative and it ought to be operative in their judgment to its fullest extent - there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have. Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look- in' so to say into the administration. If honourable Members will bear these facts in mind - the three principles we had to reconcile, - they will see that no better formula could be produced than the one that is embodies in Sub-clause (3) of
182 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Article 10 of the Constitution. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now - for historical reasons - been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public service to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word "backward" which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly....
Somebody asked me: "What is a backward community"? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government.
The above material makes it amply clear that the objective behind Clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be made broad - based. The backward communities who were till 183 OA No. 170/00961/2019 & Ors/CAT/BANGALORE then kept out of apparatus of power, were sought to be inducted there into and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities - to give them a share in the administrative apparatus and in the governance of the community."
162. A Nine member Constitution Bench of the Apex Court on a reference to finally settle the legal position relating to reservation in the case of INDIRA SAWHNEY Vs. UNION OF INDIA reported in AIR 1993 SC 477 formulated 11 questions and have laid down the law. The said law declared by the Apex Court is binding on all Courts. The law laid down which is relevant for the purpose of this case is as under : -
(1) Reservation in public services either by legislative or executive action is neither a matter of policy nor a political issue. The higher courts in the country are constitutionally obliged to exercise the power of judicial review in every matter which is constitutional in nature or has potential of constitutional repercussions.
(2) (a) Constitutional bar under Article 16(2) against state for not discriminating on race, religion or caste is as much applicable to Article 16(4) as to Article 16(1) as they are part of the same scheme and serve same constitutional purpose of ensuring equality. Identification of backward class by caste is against the Constitution.
(b) The prohibition is not mitigated by using the word, 'only' in Article 16(2) as a cover and evolving certain socio-economic indicators and then applying it to caste as the identification then suffers from the same vice. Such identification is apt to become arbitrary as well as the indicators evolved and applied to one community may be equally applicable to other community which is excluded and the backward class of which is denied similar benefit.
(c) Social and educational backward class under Article 340 being narrower in import than backward class in Article 16(4) it has to be construed in restricted manner. And the words educationally backward in this Article cannot be disregarded while determining backwardness.
(3) Reservation under Article 16(4) being for any class of citizens and citizen having been defined in Chapter II of the Constitution includes not only Hindus but Muslims, Christians, Sikhs, Budhs, Jains etc. the principle of identification has to be 184 OA No. 170/00961/2019 & Ors/CAT/BANGALORE of universal application so as to extend to every community and not only to those who are either converts from Hinduism or some of whom to (who) carry same occupation as some of the Hindus.
(4) Reservation being extreme form of protective measure or affirmative action it should be confined to minority of seats. Even though the Constitution does not lay down any specific bar but the constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50%.
(5) Article 16(4) being part of the scheme of equality doctrine it is exhaustive of reservation, therefore, no reservation can be made under Article 16(1).
(6) .........
(7) .........
(8) Creamy layer amongst backward class of citizens must be excluded by fixation of proper income, properly (Sic.) or status criteria.
In the aforesaid judgment, the Apex Court also held as under:-
"Reservation in promotion is constitutionally impermissible as, once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it."
163. It is in this background, the Parliament brought the Constitution (Seventy-Seventh Amendment) Act, 1995; The Constitution (Eighty- First Amendment) Act, 2000; The Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001. All those amendments were challenged before the Apex Court in the case of M.NAGARAJ Vs. UNION OF INDIA reported in (2006) 8 SCC 212 where after elaborate discussions of the earlier judgments and the amendments, the Apex Court declared the law as under:-
"121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which 185 OA No. 170/00961/2019 & Ors/CAT/BANGALORE enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article
335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with in-built concept of replacement as held in R.K. Sabharwal.
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns the "extent of reservation". In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy Seventh Amendment) Act, 1995; the Constitution (Eighty First Amendment) Act, 2000; the Constitution (Eighty Second Amendment) Act, 2000 and the Constitution (Eighty Fifth Amendment) Act, 2001.
164. In the case of UNION OF INDIA Vs. RAMESH RAM AND OTHERS reported in (2010) 7 SCC 234, the Constitution Bench of the Apex Court dealing with the question of migration of meritorious reserved candidates from general merit to the reserved category held as under:
"72. We sum up our answers-:
186 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
i) MRC candidates who avail the benefit of Rule 16(2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the General Pool will be offered to General category candidates.
ii) By operation of Rule 16 (2), the reserved status of an MRC candidate is protected so that his/her better performance does not deny him of the chance to be allotted to a more preferred service.
iii) The amended Rule 16 (2) only seeks to recognize the inter se merit between two classes of candidates i.e. a) meritorious reserved category candidates b) relatively lower ranked reserved category candidates, for the purpose of allocation to the various Civil Services with due regard for the preferences indicated by them.
iv) The reserved category candidates "belonging to OBC, SC/ST categories" wso are selected on merit and placed in the list of General/Unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16 (2) is not inconsistent with Rule 16 (1) or Articles 14, 16 (4) and 335 of the Constitution."
165. Therefore the law on the point is well settled. Article 16(4) protects interests of certain sections of society. It has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of principle of equality under Article 14.
166. General category candidates are not entitled to fill the reserved posts. Reserved category candidates are entitled to compete for the general category posts. When persons belonging to reserved category get selected in open competition on the basis of their merit, they are not to be counted in the reserved category against the reserved category quota. He can be considered for appointment only against General category post and the quota of the particular reserved category cannot be reduced by treating his appointment as one made against the post earmarked for the reserved category to which he belongs. It is open to the authorities to fill the posts meant for reserved category candidates from amongst the persons in such categories after excluding those who have found their place in general merit. The fact that considerable number of members of backward class have been appointed/promoted against general seats in the 187 OA No. 170/00961/2019 & Ors/CAT/BANGALORE State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class.
167. It is now well entrenched principle of law that those members belonging to reserved category who get selected in the open competition on the basis of their own merit have right to be included in the general list/unreserved category and not to be counted against the quota reserved for Scheduled Caste. Reserved category candidate who is adjudged more meritorious than open category candidates is entitled to choose the particular service/cadre/post as per his choice/preference and he cannot be compelled to accept appointment to an inferior post leaving the more important service/cadre/post in the reserved category for less meritorious candidate of that category. On his appointment to the service/cadre/post of his choice/preference, the reserved category candidate cannot be treated as appointed against the open category post. The appointment of less meritorious candidate of the reserved category against the service/cadre/post of his choice and denial of such appointment to more meritorious candidate of that category would result in blatant violation of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.
168. The concept of reservation in Article 16 (4) is hedged by three Constitutional requirements, namely backwardness of class, inadequacy of representation in public employment of that class and over all efficiency of the administration. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 16 (4) must, therefore, strike a balance between several relevant considerations and proceed objectively. The doctrine of equality of opportunity in clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.
169. From the aforesaid discussion, it is clear that, the KPSC has followed the procedure prescribed in the Government Orders dated 3.5.1994 and 20.6.1995 in preparing the eligibility list of candidates who are admitted to the written examination and who are to be called for the personality test in 1998, 1999 and 2004 batch. It is illegal. It is contrary to the Rules. The said Government Order has to be applied after the personality test is over and at the time of preparation of list of candidates suitable for appointment under Rule 11 only. Thus, admittedly the ratio prescribed in the Rules has not been followed. The resultant position is, meritorious candidates from the unreserved category are denied the opportunity to take the written examination and also denied the opportunity for being called for the personality test. It violates Article 14 and 16(1) of the Constitution. It also violates the Rules and the Government Order referred to supra and, therefore, we have no hesitation in holding that the procedure followed by the 188 OA No. 170/00961/2019 & Ors/CAT/BANGALORE KPSC in preparing the list of candidates who are admitted to the written examination and the list of candidates who are to be called for the personality list is unconstitutional and contrary to the Rules and the Government Order referred to supra.
170. From the material on record it is clear that, none of the candidates who took part in the selection process are in any way responsible for KPSC following the aforesaid procedure. Even the candidates belonging to unreserved category did not insist on any claim by virtue of the Government Order at the stage of written examination or at the stage of personality test. It is not as if all the persons who have taken the written examination and attended the personality test are not eligible for being selected for the posts to which they are selected. It is submitted on behalf of the KPSC that, hardly a handful of candidates might have migrated from the unreserved category to the reserved category and those candidates have no role to play in this regard.
171. It is settled law that for the misdeeds of some candidates, honest and meritorious candidates should not suffer. Candidates should not be made to suffer by enmass cancellation leading to termination of their services. Every endeavour should be made to segregate the non-meritorious candidates from those who are without any stigma and had been selected because of their sheer merit and not on account of any illegality. It is only when such segregation is not possible, the Court may think of canceling the entire selection. However, those candidates whose names find a place in the list of candidates suitable for appointment, if they did not possess the requisite eligibility criteria/merit, then, the appointment of such persons have to be set aside. Therefore on the ground that the KPSC has not followed the Rules in preparing the list of candidates to be admitted to the written examination and the list of candidates who should be called for personality test, the entire selection of 1998, 1999 and 2004 batch cannot be set aside.
172. The segregation of tainted/ineligible candidates who have secured employment is possible. For example, as per Table A12, the number of posts reserved for 3A category is 11 and the number of persons who have been called for the personality test in the ratio of 1:5 is 55. Whereas, the number of persons called for the personality test is 169. If the names of 39 selected persons find a place in the list within the first 55 names, their selection stands. If among them, 28 persons had the requisite merit and they are selected against the General Merit category, they are entitled to be appointed as General Merit candidate. In addition to that, 11 posts have to be filled up from the candidates belonging to 3A category. But if the names of these 39 persons do not find a place in the first 55 names, then, such persons' appointment would be void, ab initio. The reason is, persons below Sl.No.55 in the list of 3A category candidates lack necessary merit to 189 OA No. 170/00961/2019 & Ors/CAT/BANGALORE be called for the personality test. They did not have the eligibility. Therefore, they were not within the zone of consideration. If in the personality test, by virtue of more marks given to them, if their names find place in the list of candidates selected for appointment to the post under Rule l1 of the Rules, it is obvious that it is the marks which they have secured in the personality test which has played a crucial role in their selection. In other words, a candidate who was not eligible to be called for the personality test, has secured a place in the merit list and therefore such appointment cannot be upheld. This is where the report of Mr. Hota assumes importance. When the marks secured by the candidates in the written examination are made known, in other words, they are not kept confidential, these candidates attempted to approach the members of the KPSC to secure more marks, so that they are selected for the said post. Therefore the candidates who are not eligible to be called for the personality test, if they have secured more marks in the personality test and are selected, it cannot be said that they were all innocent and their appointment is in accordance with law. Therefore, the said appointment is liable to be set aside and the merit list is to be prepared excluding such persons and if there is any short fall, give the said posts to persons whose names finds place within the prescribed limit.
173. The particulars furnished by the KPSC as aforesaid discloses that in 1998 batch more persons than the prescribed ratio are called for the personality test in respect of all the reserved categories. Consequently, in 1998 batch, the name of the 35 persons belonging to the reserved category find a place in the General Merit category. In 1999 batch, 11 persons belonging to reserved category were selected under the General Merit category and in the year 2004, 26 persons out of 74 persons belonging to reserved category were selected in the General Merit category. It is made clear that if these category of persons who are selected in the General Merit category or Revised category, if their names find a place within the permissible ratio of persons to be called for the personality test, they are to be treated as validly appointed. But if their names do not find a place in the permissible ratio, such appointments are liable to be set aside and accordingly set aside.
174. Therefore the KPSC keeping in mind the procedure laid down by us, has to prepare a list of persons belonging to each of the reserved category in 1998, 1999 and 2004 batch. In the said reserved category list, the number of persons who should be called for the personality test in the ratio of 1:5 equal to the post reserved in that category have to be prepared. Then find out from that list, whether the persons who are in the selected list both under the General Merit and Reserved category find a place. If their names are within that limit, their appointment is valid. If their names do not find a place within that list, notwithstanding the marks which they have secured in the personality 190 OA No. 170/00961/2019 & Ors/CAT/BANGALORE test, their names have to be removed from the merit list and consequently, their appointment is to be set aside.
175. This exercise shall be done by the KPSC within two months from the date of receipt of the copy of this order.
POINT NO.2 - ANNULLED MARKS
176. The learned Senior Counsel Sri. M.B. Nargund submits that the direction of this Court earlier to KPSC to redo moderation in the manner suggested by the KPSC in para (b) of its memo dated 27.03.2002 is now carried out, this substantially proves the contention of the petitioner regarding the illegality in evaluation and therefore the revised list prepared by the KPSC according to the direction of the High Court order is to be upheld and given effect to.
177. Sri S. Vijay Shankar, learned Senior Counsel appearing for some of the successful candidates assailing the revised selection list for the post of Gazetted Probationers, 1988 contended that as the KPSC has become functus officio, they had no jurisdiction to revise the final selection list as they have done now. In the affidavit filed on 19.3.2016, explaining the circumstances under which this revision of selection list was done, in para-2, they have categorically stated that when once they have sent the final list by following the required procedure, they had become functus officio, but in view of the Government direction and dictates, they were constrained to re-do the whole thing and therefore, it is clear that this revised selection list was done by the KPSC at the dictate of the Government, which had no authority to do it. On that score, the said list has to be quashed.
178. Further he contended that in the affidavit through out they have referred to moderation and scaling. However, no material is placed on record to demonstrate what is the basis for the so-called moderation and scaling. At any rate, before moderation or scaling, the successful candidates whose status have now been seriously affected were neither notified nor heard as were the requirement of law and therefore, the said list is in violation of the principles of natural justice. He also contended that scaling and moderation is a technical aspect and absolutely no material is placed on record to demonstrate what is the procedure to be followed either in moderating or in scaling.
179. Lastly he contended that because of the socalled scaling or moderation, candidates who are holding higher posts for the last 10 years are now pushed down, thus seriously affecting their civil rights. Even if the Court were to lay down the procedure to be followed by the KPSC, it has to be only prospective since more than 10 years, these persons are holding the said posts. In support of his contentions, he relied upon several judgments of the Apex Court including Sanjay Singh -vs- U.P. Public Service Commission reported 191 OA No. 170/00961/2019 & Ors/CAT/BANGALORE in (2007)3 SCC 720 and Sunil Kumar - vs- Bihar Public Service Commission reported in (2016) 2 SCC 495. He also contended that the KPSC being the Constitutional authority is vested with the power to conduct selection to these Government Officers. It is an independent body and the Government has no role to play in this selection and when such being a case, they could not have issued any direction to the KPSC and even if the directions were given, KPSC is not obliged to act in terms of the said directions and therefore, this revised selection list seen from any angle is vitiated and cannot be given effect to. He also contended that when this Court appointed the Fact Finding Committee, the successful candidates were not parties and the said Committee is constituted before they were made parties. The job assigned to the Committee was a technical job. The learned Members representing the various State Holders are made the Members of the Committees, who do no have requisite expertise to go into the question. Similarly when the said report is submitted and successful candidates have not been heard, it also violates the principles of natural justice and therefore, the said reported submitted by the Fact Finding Committee appointed by this Court, cannot be acted upon and cannot be relied upon.
180. Sri P.S. Rajagopal, learned Senior Counsel appearing for the KPSC in answer to the argument that KPSC had become functus officio and that after submitting the select list to the Government, the Government directed to them to revise the list, submits that there was no such direction from the Government. He has referred to the order sheet in the present case, where in view of the CID report it became clear that annulled marks are taken into consideration in preparing the final select list, KPSC was called upon to exclude those three persons and then they submitted they have to interview 94 persons as a consequence of such exclusion and then arrive at a select list.
181. In fact in a sealed cover they had given the data showing the consequences of such exclusion and such inclusion. Thereafter they were granted six weeks time to conduct an interview which was done and consequently they submitted to the government a list in a sealed cover. It is by virtue of the Court Order the said list was prepared. Therefore, he submits that the KPSC has not submitted any revised list to the Government as contemplated under Rule 11 of the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997, the said list is submitted as per directions issued by this Court in these proceedings.
182. As per the revised list, the consequences are, because of the exclusion of those three persons who had become ineligible to attend interview and annulment of marks, 28 persons will go out of the list and new 28 candidates will come into the list. Some of them may loose their job. If a candidate who was ineligible is appointed and subsequently when it is found that he was ineligible, no equity or law 192 OA No. 170/00961/2019 & Ors/CAT/BANGALORE would come to his rescue to continue in the said post. Law of adverse possession would not apply to service law. However, if persons who were wrongly denied the berth after considerable lapse of time also cannot be considered.
183. This Court in W.P. Nos. 12548-589/2002 and other connected matters decided on 11th October, 2002 held that the order of the Karnataka Administrative Tribunal declaring that the entire valuation of Answer Scripts is arbitrary and consequently directing fresh evaluation in terms of para 78 of the said order was set-aside. However, this Court declared that moderation/random review carried out by the Head Examiners and Chief Examiners with reference to the subjects mentioned in Clause (b) of para 38 was held to be inadequate, improper and illegal and quashed the same. Consequently, this Court directed the KPSC to redo a fresh moderation in regard to the aforesaid Eighteen optional subjects and also General Studies in the manner suggested by the KPSC in para
(b) and its memo dated 27.03.2002. Further, it directed that the entire process of moderation shall be done under supervision of the Secretary of the KPSC. Further, it was directed that after evaluation and moderation as aforesaid, KPSC shall redo the list of candidates to be called for personality test, as per the rules and then proceed with the selection as per rules. If on revaluation, such candidates are found to be qualified, they shall also be considered for selection of candidates for interview.
184. By an order dated 10.02.2003 passed on I.A. IV, this Court accepted the request of the KPSC and permitted the KPSC to carry out fresh moderation/random review in regard to four papers, i.e., in Animal Husbandary & Veterinary Science, Paper 1 & 2 and Geology Paper 1 & 2 as per the methodology mentioned in para 39(b) of the order dated 11.10.2002. It was made clear that in other respects, the order dated 11.10.2002 remained undisturbed. Subsequently, again this Court passed an order on 04.07.2003 on I.A. V and gave an illustration to clarify the manner in which their order dated 11.10.2002 is to be implemented by giving an illustration. This order of the High Court was affirmed by the Apex Court in Civil Appeal Nos.6172- 6222/2005 by its order dated 6th October, 2005 and the said order has attained finality. In the aforesaid proceedings, the successful candidates in the examinations were not made parties. Nonetheless, the said orders equally bind each and every successful party. It was a judgment rendered in rem.
185. Subsequent to the aforesaid orders, KPSC proceeded with the selection and after following the procedure, a final selection list was forwarded to the Government for appointment. In terms of the said list, successful candidates were appointed for the post in various Departments of the Government. Challenging the said final list, the candidates, whose names did not figure in the list, filed an application 193 OA No. 170/00961/2019 & Ors/CAT/BANGALORE before the Karnataka Administrative Tribunal challenging the said final selection list. The said applications are pending. As no interim order was passed in the said proceedings, the Government proceeded to issue appointment orders to 383 selected candidates. The petitioners filed W.P. No.11550/2008 seeking a writ of mandamus complaining that the Government has not taken any suitable action in terms of the report of the Three-Man Committee and K.K.Mishra's report, which clearly demonstrates as to how K.Rameshwarappa, Prof.K.Shivanna and Sri.A.K.Monnappa, Secretary of the KPSC have committed offences of Criminal conspiracy, breach of trust and manipulation of records. When the said writ petition came up for consideration, the learned Government Advocate stated that the Government will order investigation in the matter to the CID. The CID after Enquiry submitted the report. In the said report, it is categorically stated that a perusal of the records and the answer scripts show that the KPSC has taken into consideration the marks awarded by the Head/Chief Examiners at the time of scaling. Since the KPSC has taken the annulled marks awarded by the Head/Chief Examiner, it is a violation of the directions issued by the Hon'ble High Court in W.P. Nos. 12548- 589/2002. This wrong step of the KPSC has resulted in tilting of marks and ultimate results.
186. It is in this background (as is clear from the affidavit dated 19.03.2006 of Sri.Manoj Kumar Meena, the Secretary of the KPSC, filed in the Court, in compliance of the order dated 18.11.2014) it is stated that during the pendency of these writ petitions, on 02.08.2013 a meeting was called for by the Principal Secretary, Department of Personal and Administrative Reforms (for short `DPAR') in order to discuss the action required to be taken by the State Government in pursuance of the CID report, requiring the Secretary of the KPSC to participate in the said meeting.
187. Thereafter, by a communication dated 27.08.2013, the Principal Secretary, DPAR wrote to the Commission. The relevant portion of the said communication reads as under:
"In view of the above, I am directed to request you to take action/corrective action on the following points as per the orders of Hon'ble High Court of Karnataka and furnish a detailed report to Government:
To take action on the allegations/findings of the CID in respect of Gazetted Probationers Examinations of 1998, 1999 and 2004, as per the decisions in the meeting held under the Chairmanship of Chief Secretary to Government (statement enclosed).
To take action with specific reference to the most serious allegation No.3 and findings of the CID thereon with reference 194 OA No. 170/00961/2019 & Ors/CAT/BANGALORE to the 1998 Gazetted Probationers Examination and to redo the moderation and scaling in accordance with the directions given by the Hon'ble High Court in its order dated: 11-10-2002.
Redo the selection lists of 1998, 1999 and 2004, as indicated above, if necessary, particularly identifying the illegal beneficiaries who have been appointed and also identifying the fresh candidates who have to be included in their places and to send final select lists by following the required procedures.
To indicate the action taken against the officials of the KPSC, namely Sri.K.Narasimha, Sri.Gopikrishna and Sri.M.B.Banakar, who are indicted in the CID report."
188. Though at that stage, KPSC was not a party to the above writ petitions, they appeared before the Court on 26.08.2013 through its Advocates. Thereafter, they submitted the data of information required by the State Government. Since the Government by its communication dated 27.08.2013 had directed the KPSC to redo the selection list of 1998, 1999 and 2004 particularly identifying the illegal beneficiaries, who had been appointed and also identifying the fresh candidates, who have been included in their places and to send final select list by following the required procedures, the KPSC, by a communication dated 04.09.2013 pleaded their inability to redo the selection on the ground that it is not within their powers as once the final list is published and forwarded to the Government, the KPSC becomes functus officio.
189. On verification of the records by the then Secretary, it was found that the annulled Chief Examiner and Head Examiner marks had been taken into consideration for the purpose of moderation and scaling, which was contrary to the directions issued by this Court in W.P. Nos.12548-89/2002 and connected matters. By a communication dated 04.09.2013 the KPSC had written to the Government that the cross-checking exercise has been undertaken and considering enormity of the task, four weeks' time more specifically up to 30.09.2013 was required to complete the process and to provide information including the marks awarded by the Examiner, Head examiner, Chief Examiner and any other relevant information, to assist the State Government in this regard. On 05.09.2013, this Court directed the Commission to supply the additional data required by the State Government. On 17.09.2013, the Commission wrote to the Government stating that after undertaking the exercise of cross- checking in respect of the moderation and scaling of 1998 batch, it was found that a total of nine answer scripts covering different subjects were required to be subjected to third valuation. Giving the details of the said scripts, it requested two weeks' time to complete the process of third valuation and to convey the outcome. On 18.09.2013, this Court directed the KPSC to file a statement indicating 195 OA No. 170/00961/2019 & Ors/CAT/BANGALORE its stand on the findings contained in the CID report. In respect of the finding of the violation of the High Court order, on 20.09.2013, the KPSC filed its report as under:
"Stand of the Commission: This finding is correct. In pursuance of the said finding the commission is re-doing the exercise of Moderation and scaling in order to find out, if in fact there would be tilting of the total marks secured by a candidate and consequently the select list, if the marks awarded by Chief/Head Examiners were not taken into consideration during moderation and scaling. The said exercise is being undertaken as per the direction of the State Government. In doing so, it is found that a total of 9 scripts in 4 subjects are required to be subjected to Third Evaluation and hence the Commission sought time till 30.09.2013. This will be followed by the preparation of merit list and if any fresh candidate comes within the 1:5 eligibility renge (as per merit/reservation) then personality test will be arranged for the said candidates. Based on the outcome, merit list needs to be re-drawn as also the final select list. Considering the contingency and complexity further time may be required by the Commission to complete the entire exercise."
190. On 20.09.2013, this Court appointed a Fact Finding Committee. In the mean time, the KPSC completed the third valuation of the additional answer scripts required to be subjected to third valuation. On 19.02.2014 during the course of hearing the progress in the re- moderation and scaling process was enquired to by this Court. The KPSC informed the Court that a fresh eligibility list (1:20) for personality test (for short 'New PT List') having been prepared 94 candidates, who were not interviewed earlier will find a place in the said list and 94 candidates, who were interviewed earlier will not find a place in the list.
191. On 03.03.2014, a memo was filed by the KPSC giving the said particulars of 94 candidates. The memo reads as follows:
"MEMO The undersigned counsel for the 3rd Respondent Karnataka Public Service Commission (for short 'Commission') produces along with the present memo the information that this Hon'ble Court had required of the Commission during the course of hearing of the above writ petitions on 19-02-2014. the said information is furnished along with the present Memo under the following heads:
A. List of three selected candidates whose names do not figure in the new Personality Test (PT) eligibility list.
196 OA No. 170/00961/2019 & Ors/CAT/BANGALORE B. List of 94 candidates who were earlier called for PT but who do not figure in the new PT list.
C. List of 94 candidates who have to be interviewed as per the new PT list, which candidates were not interviewed earlier.
D. Names of the persons who were responsible or who carried out, the task of fresh moderation as per the order dated 10-10- 2002 passed in W.P.No.12548/2002 & connected matters.
The present Memo along with the information furnished may kindly be taken on record, in the interest of justice and equity".
192. After taking note of the same, this Court passed an order to the following effect:
"C is with regard to list of 94 persons who have to be interviewed as per the new PT list, which candidates were not interviewed earlier. Learned counsel for KPSC states that time may be granted in order to ascertain the present addresses of those candidates so as to notify them about the date of interview. Once the interviews are held, the effect of performance of those candidates on the final selection list would have to be considered and if the final selection list requires an alteration, then those persons who are presently working and would be affected would also have to be heard in the matter. Therefore, he seeks six weeks time for the said exercise."
193. In the course of these proceedings on the information furnished by the KPSC in particular, the names of the persons who are responsible or who carried out the task of fresh moderation as per the order dated 10.10.2002 passed in W.P. No.12548/2002 and connected matters, the Court by an order dated 21.03.2014 directed issue of individual notice to those persons to show-cause as to why contempt of court proceedings should not be initiated against them. Accordingly, notices were issued, all of them appeared before the Court, engaged a counsel and filed affidavits showing cause.
194. Sri.B.A.Harish Gowda, was the Secretary of the KPSC at the relevant point of time. He is the person, who took up the process of the moderation and scaling. In his affidavit, he has stated that the said process involved three stages:
(i) random selection of answer scripts and review/evaluation/moderation;
(ii) Calculation of average variation; and 197 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
(iii) Applying the average variation to the answer scripts valued by the same examiner.
195. By the time the first stage was over, the Apex Court in SLP Nos.11589-639/2003 and connected matters ordered status-quo. Therefore, he stopped the implementation of the High Court Order. By the time, the stay order was vacated upholding the order of this Court, he had been transferred and in his place, Sri.B.S.Ram Prasad had taken charge. Therefore, his contention was, the mistakes now pointed out are all at the second and third stages and therefore he is not responsible in any manner. Sri.B.S.Ram Prasad has also filed his affidavit setting out the steps that were required to be carried out by the KPSC as per the directions issued and the previous Secretary has started the process of moderation and scaling. After assuming the charge as the Secretary on 12.08.2004 as moderation was substantially completed, he continued with the said process with the assistance of the staff, who were involved in the entire process. Having regard to the time frame within which the entire process had to be completed, it was done. He absolutely had no knowledge of the error that had crept in at that stage, as such nothing can be attributed to him. In a career of 30 years as a Government servant there has been no black-mark whatsoever. The other officials also have filed their affidavits pointing out that they have no role at all in the process of moderation or they had retired or transferred. Both Sri B.A.Harish Gowda and Sri B.S.Ram Prasad have since retired from service.
196. One thing that emerges from the aforesaid facts is that the previous Secretary is trying to shift the blame on the Secretary, who took charge after his leaving the Commission. The subsequent incumbent is trying to put the blame on the previous Secretary. But from the material on record, it is clear that none of these persons had any personal interest in any of the candidates. In fact the members of the Commission had difference of opinion with Sri.Harish Gowda regarding the manner, in which this process is to be conducted. No malafides are attributed to any one of them. Now that the mistakes pointed out in the CID report have been corrected by redoing the moderation/scaling as directed by the High Court all that can be said is, if these officials were little more diligent and careful, they could have avoided these mistakes. But it cannot be said that they deliberately violated the Court order. These officials are no more in service. As such we do not find any justification to continue with the contempt proceedings and accordingly we drop the same.
197. On 26.03.2014, this Court permitted the KPSC to proceed with the processing of the aforesaid 94 candidates by arranging interviews and to complete the processing within six weeks. Accordingly, after completing the process, a fresh list was prepared and submitted to this Court in a sealed cover. This Court by an order dated 11.11.2014 198 OA No. 170/00961/2019 & Ors/CAT/BANGALORE directed web-hosting of the said list in the website of the KPSC on 12.11.2014.
198. In the affidavit filed on 19.03.2006, in para 3, the procedure followed by the KPSC in the re-moderation and scaling undertaking is set out as under:
(a) Moderation and scaling was directed to be carried out by the Hon'ble High Court of Karnataka by its order dated - passed in W.P.Nos.12548-589/2002 and connected matters only in respect of the subjects where the marks awarded by the Head Examiners (HE) and Chief Examiners (CE) were quashed.
Hence, Moderation and Scaling has been confined to the said subjects.
(b) The Moderation and Scaling carried out prior to the publication of the Final Select List dated 28-02-2006 is referred to as 'First Moderation' and the Moderation and Scaling undertaken by the Commission is referred to as 'Re- moderation.'
(c) The first step involved was crosschecking of the marks entered in the computer database paper-wise and examiner- wise in order to tabulate the original examiner marks and discard the HE/CE marks.
(d) In the process of first moderation examiner-wise and paper- wise 10% answer scripts (5% top and 5% random) were already picked out for second valuation and valued.
(e) The said second valuation marks of the 10% answer scripts picked out are compared with the original examiners marks to determine the difference between the two marks. At this stage it is pertinent to state that in the event of the HE/CE marks having been taken into consideration earlier in respect of the 10% picked-out answer scripts, there would be change in the difference of marks from the first moderation to the re- moderation as the difference in marks in the remoderation is between original examiner and the second valuation marks. However, in case of picked-out scripts, which were not corrected either by HE or CE or both, then the difference of marks would remain the same as in the case of first valuation.
(f) Thereafter, the average variation is arrived at by adding the difference in marks in respect of the 10% picked-out answer scripts divided by the number of answer scripts picked-out.
(g) If the average variation is more than (+) or (-) 20 then original examiner marks of all the scripts examiner is added or subtracted by such average variation and the final scaled marks would be after such addition or subtraction.
(h) In the event of the average variation being less (+) of (-) 20 then no addition or subtraction is necessary and the original examiner marks have been retained. However, in individual cases of picked-out answer scripts if the difference between the 199 OA No. 170/00961/2019 & Ors/CAT/BANGALORE marks awarded by the original examiner and second valuation is more than (+) or (-) such sc are subjected to third valuation and the marks awarded in the third valuation is taken as the final marks.
(i) In the first moderation after arriving at the average variation, the addition or subtraction was carried out by using HE/CE marks, where HE/CE had evaluated the scripts. However, in case of scripts evaluated only by original examiner, even in the first valuation the addition and subtraction was only from the original examiner marks.
(j) It is pertinent to state that the illustration contained in the CID report at pages 25 to 38 does not give the correct scope of correction, in as much as, the CID has pointed out the fact that at the stage of addition or subtraction of the average variation, the HE and CE marks have been used instead of original examiner marks. However, if in case in the first valuation HE and CE marks were used for calculating the average variation (in respect of Picked-out answer scripts) then in the remoderation even the average variation would undergo a change. CID did not appreciate this aspect and hence the calculations given in the CID report in pages 25 to 36 cannot be used in order to determine the correct difference of marks on re-moderation."
199. The argument of the learned Senior Counsel Sri.S.Vijayshankar proceeds on the assumption that the KPSC has no power to alter the final list once it is submitted to the Government, as it becomes functus officio. The fact set out above clearly demonstrates that it is not a suo motto revision of the select list by the KPSC. The material on record clearly demonstrates that the proceedings were initiated challenging the final list on the ground of fraud and grave illegality perpetuated at the stage of evaluation of the answer scripts and at the time of personality test. The Enquiry Report of the CID, fully supports the said view. The KPSC has admitted the finding in the CID report that the annulled marks awarded by the Head/Chief-Examiners have been taken into consideration for the purpose of moderation and scaling, which is contrary to the order dated 11.10.2002 passed in W.P. Nos. 12548-589/2002. The KPSC Member of the Fact Finding Committee has observed that to what extent the said error would tilt the marks and ultimately, the results would have to be worked out by the KPSC will be known only after redoing all the exercise of moderation and scaling by taking into consideration the marks awarded by the original examiners.
200. It is in those circumstances, on verification of the records, KPSC was convinced that the said irregularities are correct and in view of the earlier order of this Court directing re-examination and how moderation/scaling is to be done and if the KPSC had not undertaken this revision, it would have amounted to abdication of its duties and 200 OA No. 170/00961/2019 & Ors/CAT/BANGALORE also amounting to contempt of the court order. Though the candidates who took the written examination and personality test may not have any role to play in these illegalities/discrepancies, a Constitutional Authority like KPSC has to conduct itself in a fair and reasonable manner. That is how the KPSC undertook this exercise and it cannot be found fault with. This Court having monitored this case, which is the cause for revision of the selected list, cannot be silent spectator and gloss over the matter. The candidates, who had merit and who were denied an opportunity to participate in the personality test are now permitted to participate in the selection process. Persons, who did not have the requisite merit were permitted to participate in the selection process, which is illegal. Therefore the said revised list is to be upheld and given effect to. Merely because years have elapsed is not a reason for not upholding the revised list. The law of adverse possession is not attracted to service matters. The petitioners are agitating the matter in different forum. The appointments made is always subject to the result of the pending proceedings. Therefore the contention that delay and laches stares on the face and the writ petition is liable to be dismissed on that ground, lacks merit and accordingly rejected.
201. Though the successful parties were not parties to the earlier proceedings, after the preparation of the revised list and its web- hosting, all of them are added as parties and all of them are now represented and they have been heard. It is only when this Court directs the implementation of the revised list, successful candidates would be hurt. That is why they have been heard. Therefore the principles of natural justice is complied with. The KPSC in their affidavit has clearly set out the procedure that is followed in the process of moderation/scaling. It is also in accordance with the direction issued by the High Court in its order by way of illustration. The said affidavit is made available to all the respondents. No one has pointed out any error or mistake in the process.
202. Accordingly, we do not find any substance in the contention of the learned Senior Counsel. The revised selection list of the post of gazetted officers prepared, of 1998 batch is valid and consequently, it has to be given effect to.
POINT NO.3 - VALUATION OF MORE THAN 10% OF THE ANSWER SCRIPT
203. Sri Vikram Phadke, learned Counsel for the petitioners contended that in the earlier proceedings, this Court had clearly set out how moderation/scaling is to be done in respect of 18 subjects. It is in pursuance of the said direction in the said proceedings, the marks given by head examiner and chief examiner were all set aside and a direction was issued to take 5% of the top level and another 5% random of the answer scripts and not less than 10% for total answer 201 OA No. 170/00961/2019 & Ors/CAT/BANGALORE scripts for moderation. KPSC has conducted the moderation of more than 10% but they have not taken into consideration the marks secured in the said moderation of all the papers, so revalued. They have confined only to 10% which is a patent illegality and violation of the direction issued by this Court and confirmed by the Hon'ble Supreme Court. Infact, in the Supreme Court judgment, it is expressly stated that minimum is 10% and it is open for them to value more than 10% of those revalued paper and marks taken into consideration. Therefore, direction has to be issued with regard to percentage of papers above 10% which is excluded from moderation by the KPSC in preparing the list.
204. Sri P.S. Rajagopal, learned Counsel for the KPSC contended that 91 answer scripts were in excess of 10% and therefore they are not taken into consideration. Admittedly, the same was taken into consideration. The explanation offered is, this 91 answer scripts is in excess of 10% prescribed and therefore, KPSC was not bound to take the third valuation marks. In these 91 papers, for two students, none of the marks secured by them in the third valuation is given. The reason is, i.e., scaling of marks and that explanation by the KPSC appears to be correct.
205. In the order of the High Court dated 11th October, 2002 in W.P. No.12548-589/2002 at para 35, this Court observed as under;
"The large variation in the figures earlier furnished and subsequently modified, as to the answer scripts that were moderated raises a doubt about the actual number of answer scripts reviewed by Head Examiners and Chief Examiners. Be that as it may. In spite of the above, moderation was restricted only to the answer scripts which were reviewed by the Head/Chief Examiners and no effort was made to adopt the scaling technique of moderation by applying an upward or downward revision to all the answer scripts evaluated by the respective examiners. Further, in regard to most of those subjects the random preview was not done to the extent suggested in the guidelines (5% of top level answer scripts and over all random review of 10%). No minutes or record has also been maintained to show whether moderation was done by the Head Examiners/Chief Examiners in the manner required by the guidelines. They (the answer scripts in the above subjects), therefore require proper review. KPSC having realized the inadequacies/irregularities has now agreed to do the moderation by applying scaling Technique (as stated its memo dated 27.-3-2002 filed on 22-7- 2002)."
206. The said order has been confirmed by the Apex Court and the relevant observation of the Supreme Court in this regard is contained at page 39 as under:
202 OA No. 170/00961/2019 & Ors/CAT/BANGALORE "The submission that the guidelines earlier provided only for a random review to the extent of 5 to 10% which has now been increased to 20%, is based on a factually wrong assumption.
The High Court in paragraph 35 of its judgment has noticed that the random review prescribed under the guidelines was to be done in respect of 5% of top level answer scripts and 10% over all random review. Even the memo filed by the Karnataka Public Service Commission and accepted by the High Court assured that whenever random review done by the Head Examiner was less than 10% of the answer scripts evaluated by any examiner in any subject, the shortfall would be made up examiner-wise and subject-wise by random review of answer scripts to the extent of shortfall. While doing so it will be ensured that random sampling was not be less than 5% of the top level answer scripts. We have therefore, no doubt that the direction of the High Court has not deviated from the guidelines. Moreover, 5% or 10% as the case may be is the minimum required percentage of random review. It can always be more than the minimum prescribed."
207. As per the order of the High Court in W.P. Nos. 12549-589/2002, for the purpose of moderation, answer scripts had to be picked in the following manner:
(a) 10% of the answer scripts in the subjects subjected to moderation had to be picked up.
(b) After this 10%, 5% of the answer scripts were to be the top level answer scripts and the rest of the 5% is to be picked up randomly.
208. The report of the Committee constituted by the High Court discloses that in many cases, the top 5% of the answer scripts were not taken. In fact in the report, a table showing the top 5% of the answer scripts not picked up for moderation is clearly set out. Table- A4 of the report of the Fact Finding Committee sets out cases where marks of Third Valuation not taken as final marks with regard to the selected candidates mentioned therein and according to the petitioner thus selected candidates are benefited by this lapse. In Table-A5, they have set out the instances wherein although the average variation is not more than plus or minus twenty, the marks awarded by the examiner was not retained, but marks, which would benefit the candidate was considered as final marks. Therefore, it is contended that the KPSC has not complied with the order of this Court, even in this aspect of moderation, resulting in tilting of the average variation and thereby tilting of total marks which has vitiated the process.
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209. The KPSC member, though did not dispute the figures in the said tabulated statement has observed that in case of some candidates, less marks have been taken into consideration and in some cases, more marks have been taken into consideration. The difference is marginal.
210. From the aforesaid material it is clear that the order dated 11.10.2002 in W.P.No.12548-589/2002 at paragraph 35, directed for a random review to the extent of 10%, i.e., 5% top level answer scripts and over all random review of 10%. This is the minimum the KPSC was expected to do. The Apex Court while confirming this order of the High Court held that 5% or 10% as the case may be is the minimum required percentage of random review. It can always be more than the minimum prescribed.
211. Now, it is not in dispute that more than 10% prescribed answer scripts have been subjected to moderation. In all, it amounts to 91 papers. The petitioners rely on the report of the Committee formed by the High Court pointing out how the marks secured in the third valuation in respect of these 91 papers has not been given effect to. KPSC admits the said fact. Their contention is that they could not have reviewed more than 10% of the answer scripts and therefore these 91 answer scripts which is above 10% prescribed is not given effect to. Once random review is ordered for, review is conducted and there is large scale discrepancy, the KPSC was bound to comply with the directions issued by the High Court as affirmed by the Supreme Court, even in respect of these 91 papers. Their failure to do so is illegal and contrary to the directions issued by the Apex Court. They ought to have given effect to the marks secured in the third valuation and found out whether it has any bearing on the final list prepared by them.
212. Under these circumstances, we are of the view that the KPSC has not taken into consideration the marks secured in 3rd valuation in respect of these 91 answer scripts and have not given effect to the order of the High Court to the same in the preparation of the merit list. It is pertinent to point out at this stage that, the Court summoned all these 91 answer scripts. It was kept in the open Court for inspection by the learned Counsel appearing for the parties as well as parties by themselves and it is only after giving such an opportunity, when nobody pointed out any illegality or irregularity in the said valuation, we have proceeded to pass this order. Even now, if there is any irregularity or illegality in any individual case and if by giving effect to the third valuation, if their position is going to be affected, they are at liberty to approach the Karnataka Administrative Tribunal for redressal of their grievances.
213. In that view of the matter, we direct the KPSC to take into consideration the marks secured in third valuation in respect of these 204 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 91 answer scripts, give effect to the same in terms of the High Court order within two months from the date of receipt of the copy of this order.
POINT NO.4 - DESTRUCTION OF ANSWER SCRIPTS IN 1999 BATCH
214. The selection of 1999 batch was challenged firstly, on the ground that KPSC has not made known the basis for evaluation. They have not prepared any model answer scripts so that the evaluators would look into the same and bring in some uniformity in the matter of evaluation. On the contrary there is total arbitrariness in the process of evaluation. In fact, in some cases, second valuation and third valuation is done. In respect of some other papers only one valuation is done. Therefore, the same set of rules prescribed by the KPSC is not followed in evaluating these answer scripts. The system of introducing second and third valuation is arbitrary. In fact, the same also has been done on selective basis and, therefore, the entire process of valuation is without any basis, arbitrary and contrary to the process evolved by the KPSC itself. On 9.7.2005 when these selection of 1999 batch was under challenge before the Tribunal, an interim order was passed staying the selection process. However, an application was filed by the KPSC for permission to publish a provisional list which was granted on 27.9.2005. Subsequently, on 25.10.2005 KPSC was permitted to publish the list subject to the result of the application. Therefore, when the selection process was under challenge it is by virtue of the interim orders granted, provisional list and final list was published, the KPSC could not have destroyed the answer scripts. It is done with a mala fide intention. Therefore, adverse inference is to be drawn.
215. The learned counsel for the petitioner Sri Vikram Phadke relied on the following judgments in support of his contentions:
216. In the case of KRISHAN YADAV vs STATE OF HARYANA reported in (1994) 4 SCC 165, held as under:-
"It is somewhat surprising the High Court should have taken the path of least Resistance stating, in view of the destruction of records, that it was helpless. It should have helped itself. Law is not that powerless.
20. In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as "fraud unravels everything". To put it in other words, 205 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors.
21. The effect of setting aside the selection would mean the appointments held by these 96 candidates (including the respondents) will have no right to go to the office. Normally speaking, we should require them to disgorge the benefit of these illgotten gains. That means they will have to repay the entire salary and perks which they have received from the said office. But, here we show a streak of sympathy. For more than 4 years they were enjoying the benefit of "office". The proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay."
217. In the case of PRITPAL SINGH vs STATE OF HARYANA AND OTHERS reported in (1994) 5 SCC 695, the Supreme Court held as under : -
11. As aforestated, the answer papers of the written examinations were destroyed even before the results of the selection had been declared. The resolution which has been quoted above states that the Board had decided to destroy the answer papers as there was no space to keep them in the Board's office. There was a shortage of space because invitations for applications for various posts had been issued and space was badly needed for keeping the same. In reply to our query, the learned Solicitor General fairly stated that there was no such shortage of space. In any event, what is noteworthy about the resolution is its last sentence, which we have emphasised. So great was the haste to destroy the answer papers that the destruction was already complete when the resolution was passed. The shortage of space could not have been so acutely felt so suddenly and the explanation contained in the resolution does not explain or justify the tearing hurry. The explanation is, therefore, suspect.
12. The answer papers having been destroyed, it becomes impossible to ascertain what marks each candidate had secured from the examiners upon the answer papers themselves. Ordinarily, the examiners would have themselves tabulated the marks given by them against the serial numbers or names of the candidates whose answer papers they had examined. No such tabulation has been produced by the Board.
There were four written papers. The Board would, in any event, have had to tabulate the marks obtained by each candidate in each of the four papers and aggregate the same for the purposes of ascertaining which of the candidates had obtained the qualifying marks or more. No such tabulation has been 206 OA No. 170/00961/2019 & Ors/CAT/BANGALORE produced by the Board. The resolution of the Board authorising payment to the examiners shows that there were 13 of them. There were four written papers. In each subject, therefore, there were more than one examiner and the answer papers of the candidates were distributed amongst them. Ordinarily, there would be a moderation of the marks given by two or more examiners in the same subject so as to ensure that one had not been too strict and other too lenient. No papers in this behalf have been produced by the Board.
13. Much paper pertaining to the physical statistics of the candidates declared to be successful at the written examination has been preserved by the Board and produced. That it has been preserved but no other documentation is noteworthy; a candidate's height would remain ascertainable so long as he was alive.
14. From the record produced by the Board it appears that very large sheets of paper with the names of the candidates and their qualifications, etc., typed thereon were placed before the members of the Board who interviewed them. Upon these sheets of paper there are large blanks, in that no notation has been made with regard to many candidates one after the other in serial order. Such notations as there are in pencil and they do not always indicate how the candidates had fared. Along with these very large sheets of paper there is a small strip of paper relating to the only candidate who, for some reason, was interviewed on 3-9-1989. This strip of paper shows the final assessment of the candidate at the interview. There is no corresponding tabulation produced in respect of the candidates who appeared on the earlier dates of interviews. In other words, there is no tabulation of the final marks awarded to these candidates at the interview.
19. It is in the public interest that members of the police force should be selected objectively and fairly. The factors that we have enumerated above satisfy us that the selection made by the Board was not objective and fair. It is, therefore, in the public interest that the selections and the appointments made consequent thereon be quashed forthwith.
20. We appreciate that it may be that there are among those selected some who deserved selection and who will, consequently, suffer as a result of this order. There is, regrettably, considering the state of the selection records, no way in which such men can be identified. The public interest outweighs their interest. The directions that we shall now give shall enable them to compete once again with those who had 207 OA No. 170/00961/2019 & Ors/CAT/BANGALORE sought selection with little or no disadvantages a result of the years that have passed.
21. The appeals are allowed. The orders of the Division Benches under appeal and the judgment and order of the learned Single Judge dismissing the writ petitions are set aside. The writ petitions are made absolute in the following terms: The selections made by the Board of Sub- Inspectors of Police consequent upon the advertisement dated 21-1-1988, as also the appointments made by the State of Haryana pursuant thereto are quashed.
22. A fresh selection shall be made by the Board for the 98 posts of SubInspectors of Police for which the Board had at the relevant time received requisitions from the State Government. All candidates who had applied pursuant to the advertisement dated 21-1-1988, and who were found eligible shall be entitled to appear for the written examinations, the total marks whereof shall be 200. Those who are successful shall then appear for a physical test. Having regard to the fact that the candidates are now around the age of 30, the Inspector General of Police of the State of Haryana or an officer of equivalent rank shall, having regard to this age, prescribe appropriate physical requirements. Those candidates who are found to possess these physical requirements shall be called for interview, the marks whereof shall be 25. Candidates who are successful at the interview shall be required to submit to physical tests, namely, two races and two jumps, the particulars of which shall also be prescribed by the Inspector General of Police or equivalent authority having regard to the age aforesaid."
218. Again the Apex Court in the case of POONAM RANI ALIAS POONAM vs STATE OF HARYANA AND ANOTHER reported in (2012) 6 SCC 596 held as under : -
18. The affidavit filed by the Secretary of the Commission before this Court clearly shows that within few days of declaration of the result of the selection, the officers of the Commission destroyed the answer sheets of the written examination held in June, 2008. This was done in blatant violation of Resolution dated 1.10.1994, in terms of which the answer sheets could be destroyed after three months from the date of declaration of the result of the selection. The statement contained in paragraph 12 of application dated 14.3.2012 filed on behalf of the Commission is reflective of the casualness with which the officers of the Commission have treated the issue of destruction of the most important record, i.e., the answer sheets of the candidates which constituted foundation of the final selection.
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23. In the result, the appeal is allowed and the impugned judgment as also the order passed by the learned Single Judge are set aside. The Commission is directed to hold fresh written test and interview for considering the candidature of the appellant and other unsuccessful candidates after giving them due intimation about the date, time and place of the examination and interview. This exercise should be completed within a period of four months from the date of receipt/production of this order. The candidates who are selected on the basis of the exercise undertaken pursuant to this direction shall become entitled to be appointed against the vacancies which may be available on the date of finalisation of the selection. The parties are left to bear their own costs.
219. He therefore contended that this conduct of the KPSC should be sufficient to set aside the entire selection process and order for re- examination.
220. In Krishan Yadav's case, the selection was made without holding interview; they were ghost interviews; there was tampering of the final records and forgery and fabrication of documents. It was fake. It is in that context when the records were destroyed, the Apex Court held that when the entire selection is stinking, conceived in fraud and delivered in deceit, the entire selection is liable to be setaside. In Pritpal Singh's case, the answer papers of the written examinations were destroyed even before the results of the selection had been declared. In Poonam Rani's case the answer sheets of the written examination were destroyed in violation of the resolution dated 01.10.1984 in terms of which, the answer sheets could be destroyed after three months from the date of declaration of the result of the election.
221. The said decisions have no application to the facts of this case because it is not in dispute that the KPSC has destroyed the answer scripts. It was done after expiry of six months period stipulated under the Rules. In respect of matters which are pending in the Court, in terms of the Rules, those answer scripts are preserved. It is also not in dispute that number of applications are pending before the Administrative Tribunal challenging the selection of candidates in the 1999 batch. The KPSC could have preserved these answer scripts in view of the aforesaid litigation. But they have chosen to destroy the same. However, the evaluation of the answer scripts itself was not under challenge. In the absence of any material placed on record to show that this is done deliberately with a malafide intention to benefit a particular number of candidates, the case of malafides remains unsubstantiated. Therefore, in the facts of this case, we are satisfied that on that ground it would not be proper for us to set aside the entire selection of 1999 batch, as candidates who are selected are in no way 209 OA No. 170/00961/2019 & Ors/CAT/BANGALORE responsible for such destruction. Similarly, there is no substance in the contention that model answer scripts were not prepared. So also the allegation that the system of introducing second and third valuation is arbitrary. There is no material to substantiate the said contentions. Accordingly, we reject the same. Therefore, we do not find any merit in the said contention.
POINT NO.5 - PUBLIC INTEREST LITIGATION
222. Sri P.S.Rajgopal, learned Senior Counsel appearing for the KPSC contended that these writ petitions purporting to be in the nature of Public Interest Litigation are not maintainable for the following reasons:
a) It is well settled law that no Public Interest Litigation is maintainable in service matters;
b) The pleadings in the writ petitions disclose that the petitioners are trying to expose their individual grievances and not grievances of the public;
c) If the writ petition is filed in personal interest, at a later stage, it cannot be converted into a Public Interest Litigation. Personal Interest and Public Interest cannot co-exist; and lastly
d) The present writ petition is not a class action. A number of candidates who are unsuccessful in the selection process have brought this writ petition seeking for annulment of the selection.
Therefore, it is not a public interest litigation. It is purely academic in nature and the Court should not embark upon such exercises.
e) Though an order is passed for investigation, the Government accepted the same, entrusted the investigation to CIB and the Court passed an order appointing a Fact Finding Committee to look into the irregularities in selection process.
f) The petitioners' application before the Karnataka Administrative Tribunal is still pending and the questions raised in these writ petitions are also raised in the said proceedings and this Court has no jurisdiction to entertain these writ petitions when the application filed by the applicants are yet to be decided by the Tribunal and there cannot be any parallel proceedings regarding the same subject matter and the Tribunal being the Court of First Instance has ample power to decide all these questions.
223. Though KPSC was present in Court, it was not heard. Writ Petition is yet to be admitted. The limited role expected by the KPSC is to provide all records and therefore, he contends that now that the matter is being heard finally, it is open to the KPSC to point out that 210 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the very writ petition itself is not maintainable and the order passed is without hearing it, which is against the principles of natural justice and it does not bind them to any extent whatsoever and merely because it is not challenged, that would create no interest in favour of the petitioners or adversely affect the interest of the KPSC. In support of his contentions, he relied upon several judgments of the Apex Court, in particularly, judgment of the Constitution Bench of the Apex Court in the case of A.R. Antulay Vs. R.S. Nayak and Another reported in 1988(2) SCC 602.
224. The learned counsel appearing for the other respondents adopted the said submissions and contended that this writ petition is not maintainable.
225. Sri Vikram Phadke, learned counsel for the petitioner contended that a private interest litigation can be converted into a public interest litigation, if there is a necessity to enquire into the State of Affairs of the subject 'litigation' in the interest of justice. In the instant case, the petitioners have made it very clear that they are not seeking any relief to them personally, though they had initiated proceedings earlier, for such personal relief in KAT. In this writ petition, they are challenging the process of selection followed by the KPSC, which is unconstitutional. They are challenging in this writ petition the moderation and scaling done in respect of the evaluation of answer scripts, which is arbitrary and again offensive of Article 14 of the Constitution. Therefore, it is not a private interest litigation, but a public interest litigation.
226. Before we proceed to answer this question, it is necessary to know the meaning of a public interest litigation.
Definition of Public Interest Litigation:
227. Public Interest Litigation has been defined in the Black's Law Dictionary (6th Edition) as under:-
"Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government...."
228. Advanced Law Lexicon has defined `Public Interest Litigation' as under:-
"The expression `PIL' means a legal action initiated in a Court of law for the enforcement of public interest or general interest 211 OA No. 170/00961/2019 & Ors/CAT/BANGALORE in which the public or a class of the community has pecuniary interest or some interest by which their legal rights or liabilities are affected."
229. The Council for Public Interest Law set up by the Ford Foundation in USA defined "public interest litigation" in its report of Public Interest Law, USA, 1976 as follows:
"10.........Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others." (M/s Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Ors. - AIR 2008 SC 913, para 19).
230. The expression `PIL' means a legal action initiated in a Court of law for the enforcement of public interest. Public interest litigation is part of the process of participative justice. It is an interest shared by citizens generally in affairs of local, State or National Government. The probity in governance is a sine qua non for an efficient system of administration and for the development of the country and an important requirement for ensuring probity in governance is the absence of corruption. It is trite that the holders of public offices are entrusted with certain power to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. The judiciary can step in where it finds the actions on the part of the Legislature or the Executive to be illegal or unconstitutional. It is the bounden duty and obligation of the Courts to encourage genuine bonafide PIL petitions and pass directions and orders in the public interest, which are in consonance with the Constitution and the Laws. The technique of public interest litigation serves to provide an effective remedy to enforce these group-rights and interests.
231. Public interest litigation is a weapon, which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. The Court must be careful to see that a body of persons or a member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration.
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232. Again, the relief to be granted looks to the future and is, generally, corrective rather than compensatory which, sometimes, it also is. The court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organization of the proceedings, moulding of the relief and - this is important - also supervising the implementation thereof.
233. The main ground urged is that no public interest litigation is maintainable in respect of service matters. In support of that contention, reliance is placed on the judgment of the Apex Court in the case of DR. DURYODHAN SAHU AND OTHERS Vs. JITENDRA KUMAR MISHRA AND OTHERS reported in (1998) 7 SCC 273 in which, the Apex Court dealing with the question whether a Tribunal constituted under the Administrative Tribunals Act, 1985 could entertain a public interest litigation has held as under:
"18. The constitution of Administrative Tribunals was necessitated because of the large pendency of cases relating to service matters in various courts in the country. It was expected that the setting up of Administrative Tribunals to deal exclusively in service matters would go a long way in not only reducing the burden of the Courts but also provide to the persons covered by the Tribunals speedy relief in respect of their grievances. The basic idea as evident from the various provisions of the Act is that the Tribunal should quickly redress the grievances in relation to service matters. The definition of 'service matters' found in Section 3(q) shows that in relation to a person the expression means all service matters relating to the conditions of his service. The significance of the word 'his' cannot be ignored. Section 3(b) defines the word 'application' as an application made under Section 19. The latter Section refers to 'person aggrieved'. In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the word 'order' has been defined in the explanation to sub-section (1) of Section 19 so that all matters referred to in Section 3(q) as service matters could be brought before the Tribunal. If in that context, Sections 14 and 15 are read, there is no doubt that a total stranger to the service concerned cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated. 19. Our attention has been drawn to a judgment of the Orissa Administrative Tribunal in Smt. Amitarani Khuntia vs State of Orissa. The Tribunal after considering the provisions of the Act held that a private citizen or a stranger having no existing right 213 OA No. 170/00961/2019 & Ors/CAT/BANGALORE to any post and not intrinsically concerned with any service matter is not entitled to approach the Tribunal. The following passage in the judgment is relevant: :
"....A reading of the aforesaid provisions would mean that an application for redressal of grievances could be filed only by a 'person aggrieved' within the meaning of the Act.
Tribunals are constituted under Article 323-A of the Constitution of India. The above Article empowers the Parliament to enact law providing for adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government and such law shall specify the jurisdiction, powers and authority which may be exercised by each of the said Tribunals. Thus, it follows that Administrative Tribunals are constituted for adjudication or trial of the disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts. Its jurisdiction and powers have been well defined in the Act. It does not enjoy any plenary power."
We agree with the above reasoning.
21. In the result, we answer the first question in the negative and hold that the Administrative Tribunal constituted under the Act cannot entertain a public interest litigation at the instance of a total stranger.
234. The Apex Court in the case of B.SRINIVASA REDDY Vs. KARNATAKA URBAN WATER SUPPLY & DRAINAGE BOARD EMPLOYEES ASSOCIATION reported in (2006) 11 SCC 731 (I) has held as under:
51. It is settled law by a catena of decisions that Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain vs. Union of India, was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, it may be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person that is the nonappointee to assail the legality or correctness of the action and that third party has no locus standi to canvass the legality or correctness of the action.
214 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Further, it was declared that only public law declaration would only be made at the behest of public-spirited person coming before the Court as a petitioner having regard to the fact that the neither respondent Nos.1 and 2 were or could have been candidates for the post of Managing Director of the Board and the High Court could not have gone beyond the limits of Quo Warranto so very well delineated by a catena of decisions of this Court and applied the test which could not have been applied even in a certiorari proceedings brought before the Court by an aggrieved party who was a candidate for the post.
235. The Apex Court in the case of DATTARAJ NATHUJI THAWARE Vs. STATE OF MAHARASHTRA & OTHERS reported in (2005) 1 SCC 590 held as under:
16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, this Court held that in service matters PILs should not be entertained, the inflow of so called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Apart from the sinister manner, if any, of getting such copies, the real brain or force behind such cases would get exposed to find out the truth and motive behind the petition. Whenever such frivolous pleas, as noted, are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.
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236. The Apex Court in the case of HARI BANSH LAL Vs. SAHODAR PRASAD MAHTO reported in (2010) 9 SCC 655 has held as under:
11. About maintainability of the Public Interest Litigation in service matters except for a writ of quo warranto, there are series of decisions of this Court laying down the principles to be followed. It is not seriously contended that the matter in issue is not a service matter. In fact, such objection was not raised and agitated before the High Court. Even otherwise, in view of the fact that the appellant herein was initially appointed and served in the State Electricity Board as a Member in terms of Section 5(4) and from among the Members of the Board, considering the qualifications specified in subSection (4), the State Government, after getting a report from the vigilance department, appointed him as Chairman of the Board, it is impermissible to claim that the issue cannot be agitated under service jurisprudence.
15. The above principles make it clear that except for a writ of quo warranto, Public Interest Litigation is not maintainable in service matters.
237. The Apex Court in the case of ASHOK KUMAR PANDEY Vs. STATE OF WEST BENGAL reported in (2004) 3 SCC 349 has held as under:
16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr. Duryodhan Sahu v. Jitendra Kumar Mishra and Others (AIR 1999 SC 114), this Court held that in service matters PILs should not be entertained, the inflow of so called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the 216 OA No. 170/00961/2019 & Ors/CAT/BANGALORE petitioner opened it, he found copies of the official documents.
Whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.
238. In the light of the aforesaid decisions, we have to find out what is a 'service matter'.
239. The word `service matter' is defined under Section 3(q) in the Administrative Tribunals Act, 1985 as under: (q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respect -
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, revision, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;
240. The persons, who have preferred this writ petition are persons, who participated in the recruitment process and who are unsuccessful. For individual reliefs, they have approached the Karnataka Appellate Tribunal and the matter is pending. What is adjudicated in this writ petition is, the illegality committed by the KPSC in the recruitment process and violations of the orders passed by this Court in the earlier proceedings. Therefore, it cannot be said that the petitioners are total strangers to these proceedings and that writ petition is not maintainable. Similarly, as the Karnataka Administrative Tribunal has no plenary power and a public interest litigation is not maintainable before it, these interested persons rightly have approached this Court and have invoked the plenary power of this Court under Article 226 of the Constitution of India. They are not seeking any personal relief. They are not seeking any relief in respect of matters relating to the conditions of their service.
217 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
241. The subject matter of this writ petition is the procedure followed by the KPSC in preparing the list of candidates to be admitted to the written examination and the list of candidates to be called for the personality test. It is not a matter relating to the conditions of service of the petitioners. Similarly the list of successful candidates prepared by K.P.S.C. taking into consideration the annulled marks by this Court in its order and subsequent preparation of list in terms of the court order after C.I.D. Report pointed out the said mistake also cannot be construed as matter relating to the conditions of service of the petitioner. Further, the refusal on the part of the K.P.S.C. to re do the same exercise in respect of 91 answer scripts on the ground that it falls over and above the 10% mark prescribed by the Court, also do not constitute a matter relating to the conditions of service of the petitioner. A Constitutional authority like the K.P.S.C., which has been entrusted with the function of recruitment to civil services and for civil posts, acts in an unconstitutional manner in conducting the examination for such appointments, which in turn affect the public interest, it is only through a public interest litigation the unconstitutional acts could be corrected. It is not a service matter as defined under the Act. It is not a matter relating to the conditions of service of the petitioners
242. In Dr.Duryodhan Sahu's case, the question for consideration was, "whether a public interest litigation at the instance of a total stranger is maintainable before the Administrative Tribunal?". The Apex Court in the said case held that, a total stranger to the service cannot make an application before the Tribunal. Similarly, it held that the Tribunals are constituted for adjudication or trial of disputes and the complaints with respect to recruitment and conditions of service of persons appointed to Public services and posts. It does not enjoy any plenary power as enjoyed by the Constitutional Court under Article 226 or Article 32 of the Constitution. In B.Srinivasa Reddy's case what was challenged was the appointment of the post of Managing Director by the Labour Union. Therefore, it was held that they were not the candidates, who are competing for the said post and therefore, it was held that the writ petition is not maintainable. In the other cases referred to supra also, what was canvassed and what was challenged was a private interest and therefore, rightly, it was held that a public interest litigation is not maintainable. Therefore, the said judgments have no application to the facts of this case.
243. In the instant case, what is sought to be exposed is state of affairs of the K.P.S.C. a constitutional authority entrusted with the responsibility of conducting examination for appointment to the service of the State, where a systematic commission of fraud, deceit and unconstitutional procedure is followed. The orders passed by this Court earlier, which is confirmed by the Supreme Court is not given effect to. The same mistakes are committed in successive batch of selections. Therefore, the intervention of the Court has become 218 OA No. 170/00961/2019 & Ors/CAT/BANGALORE necessary, in particular, when shocking disclosures are made by the Committee and C.I.D. which was asked to enquire into the matter.
244. The Three Man Committee report discloses that, the Chief Examiner, Prof. K.S.Shivanna moderated three papers each of Sri K.Rameswarappa, Sri B.S.Nagaraj, Smt. B.S.Triveni and Smt. B.S.Hemalatha who all belong to the same family and has increased the marks enormously. As a result Sri K.Rameswarappa got the first rank, Sri.B.S.Nagaraj got the second rank, Smt. B.S.Triveni got the fourth rank and Smt. B.S.Hemalatha was selected as Tahsildar, though they had not secured marks to enable them to get selected. Sri K.Rameswarappa and Smt.B.S.Triveni were given the posting of Assistant Commissioner and Sri.B.S.Nagaraj was selected as Assistant Commissioner of Commercial Taxes. The report also discloses this was possible because of the connivance between A.K.Monnappa, the Secretary of the KPSC with the Chief Examiner. In fact, Prof. K.S.Shivanna was the Research Guide for the Ph.D programme of Sri K.Rameswarappa. Further, the report discloses that, after the examination and evaluation was over, during September 2000 these three persons undertook a joint foreign tour. The evidence discloses A.K.Monnappa has parted with the code numbers of the candidates to Prof. K.S.Shivanna and he had also taken the help of Prof.K.S.Shivanna in substitution of some of the answer scripts of these four candidates in question. Accordingly, their candidature were cancelled, they were debarred from taking the future examination and criminal proceedings also was initiated.
245. On the contrary, the Supreme Court in the following judgments has explained the role of Constitutional Courts when public interest is involved.
246. Per contra, the Apex Court in the case of SHEELA BARSE Vs. UNION OF INDIA AND OTHERS reported in AIR 1988 SC 2211 dealing with the question of the rights of those who bring the action in lieu of others in public interest has held as under:
"6. ..... The technique of public interest litigation serves to provide an effective remedy to enforce these group-rights and interests. In order that these public-causes are brought before the Courts, the procedural techniques judicially innovated specially for the public interest action recognizes the concomitant need to lower the Locus standi thresholds so as to enable publicminded citizens or social-action-groups to act as conduits between these classes of persons of inherence (Sic) and the forum for the assertion and enforcement of their rights. The dispute is not comparable to one between private parties with the result there is no recognition of the status of a Dominus-Litis for any individual or group of individuals to determine the course or destination of the proceedings, except 219 OA No. 170/00961/2019 & Ors/CAT/BANGALORE to the extent recognized and permitted by the Court. The "rights" of those who bring the action on behalf of the others must necessarily be subordinate to the "interests" of those for whose benefit the action is brought. The grievance in a public interest action, generally speaking, is about the content and conduct of governmental action in relation to the constitutional or statutory rights of segments of society and in certain circumstances the conduct of governmental policies. Necessarily, both the party structure and the matters in controversy are sprawling and amorphous, to be defined and adjusted or readjusted as the case may be, ad hoc, according as the exigencies of the emerging situations. The proceedings do not partake of pre-determined private law litigation models but are exogenously determined by variations of the theme.
Again, the relief to be granted looks to the future and is, generally, corrective rather than compensatory which, sometimes, it also is. The pattern of relief need not necessarily be derived logically from the rights asserted or found. More importantly, the court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organization of the proceedings, moulding of the relief and - this is important - also supervising the implementation thereof. The Court is entitled to, and often does seek the assistance of expert-panels, Commissioners, Advisory-committees, Amici etc. This wide range of the responsibilities necessarily implies correspondingly higher measure of control over the parties, the subject-matter and the procedure. Indeed as the relief is positive and implies affirmative action the decisions are not "one-shot"
determinations but have on-going implications. Remedy is both imposed, negotiated or quasi-negotiated Therefore, what corresponds to the stage of final disposal in an ordinary litigation is only a stage in the proceedings. There is no formal, declared termination of the proceedings. The lowering of locus standi threshold does not involve the recognition or creation of any vested rights on the part of those who initiate the proceedings analogus to Dominus Litis".
247. It is useful to refer to the passages in the case of SHIVAJIRAO NILANGEKAR PATIL Vs. DR. MAHESH MADHAV GOSAVI AND OTHERS reported in AIR 1987 SC 294:
49. .......in a matter of this nature where public interest was involved namely, state of affairs in the University of Bombay in respect of a high degree in the medicine and in which the conduct of the Chief Minister was involved, public interest demanded that the High Court should have investigated the 220 OA No. 170/00961/2019 & Ors/CAT/BANGALORE matter even though there might be some infirmities in the affidavit supporting the petition. He submitted that in this case that after the initiation of the proceeding, public interest was involved and the High Court was justified in entertaining the application.
51. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale.
It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards is an equally grave menace as the pollution of the environment. Where such situations cry out the Courts should not and cannot remain mute and dumb.
248. Further, the Apex Court in the case of INDIAN BANK'S ASSOCIATION, BOMBAY AND OTHERS Vs. DEVKALA CONSULTANCY SERVICE AND OTHERS reported in 2004 (11) SCC 1 at paragraph 34 has held as under:
"34. Furthermore, even where a writ petition has been held to be not entertainable on the ground or otherwise of lack of locus, the court in larger public interest has entertained a writ petition. In an appropriate case, where the petitioner might have moved a court in his private interest and for redressal of his personal grievance, the court in furtherance of public interest may treat it as a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus, a private interest case can also be treated as public interest case."
249. The Apex Court in the case of NIRMAL SINGH KAHLON Vs. STATE OF PUNJAB AND OTHERS reported in 2009(1) SCC 441 has held as under:
33. The High Court while entertaining the writ petition formed a prima facie opinion as regards the systematic commission of fraud. While dismissing the writ petition filed by the selected candidates, it initiated a suo motu public interest litigation. It was entitled to do so. The nature of jurisdiction exercised by the High Court, as is well known, in a private interest litigation and in a public interest litigation is different. Whereas in the latter it is inquisitorial in nature, in the former it is adversorial. In a public interest litigation, the court need not strictly follow the ordinary procedure. It may not only appoint committees but also issue directions upon the State from time to time.
36. In an ordinary case, we might have accepted the submission of Mr. Rao that the High Court should not direct Central Bureau of Investigation to investigate into a particular offence. The offence, however, is not ordinary in nature. It 221 OA No. 170/00961/2019 & Ors/CAT/BANGALORE involved investigation into the allegations of commission of fraud in a systematic manner. It had a wide ramification as a former Minister of the State is said to be involved.
250. Having regard to the aforesaid unimpeachable evidence found, the irresistible conclusion is fraud has reached its crescendo. Deeds as foul as these inconceivable much less could be perpetrated. We are reminded of the words of Shakespeare:-
"Thus much of this, will make Black, white; foul, fair; wrong, right; Base, noble; Ha, you gods! why this?"
251. It may not be too much to draw an inference that all these were motivated by extraneous considerations. Each of this would attract the penal provisions of Indian Penal Code. They have been done with impunity. It is highly regrettable that the holders of public offices both big and small have forgotten that the offices entrusted to them are sacred trusts. Such offices are meant for use and not abuse. The whole examination and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode. It shocks our conscience to come across such a systematic fraud. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as fraud unravels everything.
252. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards is an equally grave menace as the pollution of the environment. Where such situations cry out the Courts should not and cannot remain mute and dumb. In an appropriate case, where the petitioner might have moved a court in his private interest and for redressal of his personal grievance, the court in furtherance of public interest may treat it as a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus, a private interest case can also be treated as public interest case.
253. Public law declaration would be made at the behest of public spirited person coming before the Court as a petitioner. If it involves investigation into the allegations of commission of fraud in a systematic manner, which has a wide ramification in selection to the post of Gazette probationers in the State of Karnataka, this Court cannot adopt the "hands off" attitude. When the K.P.S.C. and State Government was convinced of fraud, criminal conspiracy, breach of trust and appointed three-man Commission K.K.Mishra Committee, Hota Committee and the Government ordered for C.I.D. enquiry, the dispute ceased to be a service matter, or of personal interest. It is a matter in which the public of Karnataka is virtually interested.
222 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Therefore this writ petition is maintainable as it is filed in public interest and no personal relief is sought for or granted.
254. In the light of the above discussion, it is clear that, in these proceedings we have gone into only the question of procedure followed by KPSC in preparing the list of eligible candidates to be admitted to the written examination and the list of candidates eligible to be called for personality test. In this regard no personal interest of any person is involved. The lapses pointed out is common to all the three selections of 1998, 1999 and 2004. Similarly, the other aspect which we have decided in this proceedings is that, the directions issued by the High Court in the earlier proceedings are not given effect to. In so far as taking into consideration annulled marks is concerned, KPSC has admitted the mistake and they have redone the merit list. We have also issued a direction to the KPSC to subject 91 answer scripts which are above 10%. Therefore, here also no personal interest is involved. It is also pertinent to note the orders passed in the writ petition as set out earlier, this Court virtually monitored the investigation and enquiry. It has passed orders from time to time which are complied by K.P.S.C., and the Government. Most of the material now on record is unearthed by such orders. The petitioners have no role to play in this regard. The Court is concerned about fair recruitment to the civil post in the State. A Constitutional authority entrusted with this solemn duty has failed in this regard. Therefore, in public interest, this writ petition was entertained and directions were issued from time to time. This being a Writ Petition filed in public interest, these issues which concern the public appointment to a public office are dealt with by us. Therefore, it is too late in the day for the respondents to contend that this writ petition as P.I.L., is not maintainable.
POINT NO.6 - PRIVATE INTEREST
255. All other disputes, which are raised by the petitioners and also the respondents with reference to individual candidates are concerned we decline to go into the same. The petitioners' applications before the Karnataka Administrative Tribunal is still pending. Therefore, all those disputes we are relegating to the Tribunal to be decided by the Tribunal. It is open to the petitioners either to seek appropriate amendments in the petition pending before the Tribunal and agitate their rights and seek redressal before the Karnataka Administrative Tribunal.
256. In so far as respondents who have sought to defend their individual cases are concerned, as we have not gone into those aspects and pronounced any orders and as all those matters are personal to those respondents, it is open to them to approach the Karnataka Administrative Tribunal for redressal of their grievances. If they are impleaded as parties by the petitioners, they could put forth 223 OA No. 170/00961/2019 & Ors/CAT/BANGALORE their view point in those proceedings. Therefore, we make it clear, except the issues which we have decided in these proceedings, all other disputes are relegated to the Karnataka Administrative Tribunal for adjudication and decision if a request is made by any of the parties to this proceedings. As resolution of the disputes need the report submitted by the members of the High Court Committee. High Court office is directed to keep all those reports in safe custody and transmit the same to the Karnataka Administrative Tribunal, if any order is passed to that effect. That would meet the ends of justice.
POINT NO. 7 - K.P.S.C
257. Chapter-II of Part-XIV of the Constitution of India deals with the Public Service Commissions. Article 315 of the Constitution of India deals with the establishment of Public Service Commissions for the Union as well as the States. Article 320 of the Constitution of India deals with the functions of the Public Service Commissions which reads as under:
"320. Functions of Public Service Commissions (1) It shall be the duty of the Union and the State Public Service Commission to conduct examinations for appointments to the services of the Union and the services of the State respectively (2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more State so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted-
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the 224 OA No. 170/00961/2019 & Ors/CAT/BANGALORE State; (e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advice on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor, of the State, may refer to them: Provided that the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted (4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect maybe given to the provisions of Article 335.
(5) All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid."
258. The Apex Court in the case of STATE OF U.P. - VS- RAFIQUDDIN reported in AIR 1987 SUPP. SCC 401 while dealing with the functioning of Karnataka Public Service Commission has held as under:
"30. ............The Commission is an independent expert body. It has to act in an independent manner in making the selection on the prescribed norms. It may consult the State Government and the High Court in prescribing the norms for judging the suitability of candidates if no norms are prescribed in the Rules. Once the Commission determines the norms and makes selection on the conclusion of the competitive examination and submits list of the suitable candidates to the Government it should not reopen the selection by lowering down the norms at the instance of the Government. If the practice of revising the result of competitive examination by changing norms is followed there will be confusion and the people will lose faith in the 225 OA No. 170/00961/2019 & Ors/CAT/BANGALORE institution of Public Service Commission and the authenticity of selection...... We are of opinion that the Commission should take firm stand in these matters in making the selection in accordance with the norms fixed by law or fixed by it in accordance with law uninfluenced by the directions of the State Government unsupported by the Rules.
259. Again the Apex Court in the case of INDER PARKASH GUPTA Vs.- STATE OF J & K reported in (2004)6 SCC 786 has held as under:
"The Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the Constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Article 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of short-listing, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory rules. It can not take any action which per se would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of short-listing, the Commission cannot fix any kind of cut-off marks."
260. Yet in another judgment in the case of STATE OF PUNJAB AND OTHERS Vs. MANJIT SINGH AND OTHERS reported in (2003) 11 SCC 559, the Apex Court has held as under:
"11. .........The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."
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261. Therefore, the Public Service Commission is a body created under the Constitution. While going through the selection process, the Commission, however, must scrupulously follow the statutory rules operating in the field. They must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action which per se would be violative of the statutory rules or makes the same inoperative for all intent and purport. It has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. To discharge such constitutional and statutory duty, the Chairman and members of the Commission have to be men of high integrity, caliber and qualification. The examination board also should consists of highly qualified persons who have rich experience in conducting such examination in the past or trained in this behalf with proven record of honesty and integrity. The Commission for the purpose of valuation of answer scripts is expected to appoint reputed examiners who have track record of honesty and integrity along with efficiency and expertise in the subject in which they are called upon to be the valuers. A senior person with an unblemished record should be appointed as a Head Examiner. Therefore, the method of recruitment and conduct of examination for appointments to the services should be fool proof and conducted in a professional manner, so that there is no scope for any mischief at any stages of the recruitment process.
262. This case reveals how the KPSC is functioning in Karnataka in recent years contrary to the Constitution mandate, which is evident from the following reports:-
THREE MAN COMMITTEE:
263. The manner in which the valuation of written scripts is done is exposed by the Three Man Committee which was constituted to go into the illegalities and irregularities, in the conduct of evaluation of the papers in the written examination of the 1998 batch of Gazetted Probationers.
264. During the pendency of the Writ Petition before this Court in W.P.Nos. 12548-589/2002, realising the mistakes committed, the KPSC offered to redo the moderation and circulated its proposal to all the counsel. They also held an in-house enquiry by a Three Member Sub Committee in regard to the alleged irregularities. In pursuance of the said submission on 14.3.2002 in the Special Meeting of the Commission, they took a decision to constitute the Three Man Committee consisting of Sri R. Nagaraja, Mohd. Ali Khan and Sri D.N. Munikrishna and they were requested to hold an enquiry in respect of these three candidates and also in other aspects which would come to their notice and to submit a report. It was further made clear that they are at liberty to give a report pointing out any defects in the process of 227 OA No. 170/00961/2019 & Ors/CAT/BANGALORE recruitment and to give suggestions so that there would be transparency in valuation of the answer scripts.
265. The terms of reference to the Sub-Committee was as under:-
(1) To enquire into valuation of answer scripts of the three candidates viz., Sri Rameswarappa, Sri B.S. Nagaraj and Smt. B.S. Triveni;
(2) To enquire into any other irregularities/lapses disclosed during the enquiry; and (3) To suggest measures to be taken by the Commission to eliminate the shortcomings/defects, if any, in the conduct of competitive examinations and valuation of answer scripts so as to ensure transparency and uniformity in the valuation."
266. The Committee enquired into the matter in detail and submitted a report. The relevant portion of the report reads as under : -
In respect of Sri K. Rameswarappa, Sri B.S. Nagaraj, Smt. B.S. Triveni and Smt. B.S. Hemalath, the Chief Examiner Prof. K.S. Shivanna has moderated 3 papers each of these candidates and has increased the marks enormously. All these four persons who are closely related are selected with Sri K. Rameswarappa getting first rank, Sri B.S. Nagaraj getting second rank and Smt. B.S. Triveni getting fourth rank and Smt. B.S. Hemalath getting selected as Tahsildar that is Group-B post though not securing glaringly high rank as the other three. By virtue of their high ranks secured Sri K. Rameswarappa is selected as Assistant Commissioner, Sri B.S. Triveni is also selected as Assistant Commissioner and Sri B.S. Nagaraj is selected as Assistant Commissioner of Commercial Taxes. It appears Prof. K.S. Shivanna boosted the marks and selected more than one answer script of the very same candidate in cases other than these 4+6 candidates also only with a view to find a cover for his wrong doing in respect of these four + six candidates.
The evidence collected by the Committee shows that Prof. K.S. Shivanna, the Chief Examiner, Sri K. Rameswarappa, the beneficiary of the largesse not only for himself but also for his family members and Sri A.K. Monnappa, who was the Secretary of the Commissioner and without whose connivance it would not have been possible for the Chief Examiner to know the code numbers of the candidates, joined together as a well knit team and all the three have been part of criminal conspiracy.
Evidence collected by the Committee shows that Sri K. Rameswarappa was visiting Sri A.K. Monnappa, the Secretary 228 OA No. 170/00961/2019 & Ors/CAT/BANGALORE of the Commission very frequently. The regularity of his visits were so frequent that he was not even required to send either a visiting card seeking permission to see Sri A.K.Monnappa or send a chit containing his name to the Secretary seeking the permission to see him. That apart, Prof. K.S. Shivanna was the research guide for the Ph.D programme of Sri K. Rameswarappa. After the examination and evaluation was over during September, 2000 these three persons have also undertaken a joint foreign tour. Sri. K. Rameswarappa has given Email ID of Prof. K.S. Shivanna as his E-mail address in the conference papers. The evidence collected by the Committee clearly establishes that Sri A.K.Monnappa has parted with the code numbers of the candidates to prof. K.S. Shivanna and he has also taken the help of Prof. Shivanna in substitution of some of the answer papers of these four candidates in question. The committee is of the view that the result of these four candidates requires to be annulled and appropriate action including criminal has to be initiated against the four candidates in question, Sri. A.K. Monnappa who was the then Secretary of the Commission and Prof A.K. Shivanna who was the Chief Examiner in question.
267. In the light of the above discussion, the findings of the Committee are:-
(1) The results of Sri. K. Rameswarappa, Sri B.S. Nagaraj, Smt. B.S. Triveni and Smt. B.S. Hemalatha are vitiated by malpractices and, therefore, the committee recommends that their candidature be cancelled and they be debarred form taking any future examination conducted by the Commission after issuing them notices and following the procedure prescribed under the Rules of the Commission.
(2) In case of Smt. Leela M, Sri. Ponnappa, Sri. Naveen P.C. Sri. Subhash K.G. Sri. Pratap K.R. and Sri Cauveriappa are prima-facie committee could not establish a nexus between Dr. K.S. Shivanna, Secretary Sri. A.K. Monnappa and these 6 candidates but irresistible interference leads to show that they have indulged in malpractice ( why and how Prof. Shivanna picks- up all the 4 coded answer scripts of these 6 candidates only, and awards enormous marks over and above the Examiners marks for scripts which obviously do not merit such marks). Therefore, the committee recommends that their candidature also may be cancelled after due process of enquiry.
(3) Sri. K. Rameswarappa is already a civil servant. Prof.K.S. Shivanna is working in the University of Mysore. Sri. A.K. Monnappa is an IAS Officer borne on the cadre of Karnataka 229 OA No. 170/00961/2019 & Ors/CAT/BANGALORE State. Appropriate disciplinary action and criminal action be initiated against these three persons who have committed offences of criminal conspiracy, breach of trust, manipulation of records etc. in addition to taking criminal action against the other three candidates who are beneficiaries along sri. K. Rameswarappa. Commission may take up the matter of taking appropriate disciplinary proceedings against Sri K.Rameswarappa, Prof. K.S. Shivanna, and Sri. A.K. Monnappa with the respective disciplinary authorities viz., the Government and the University of Mysore. The Commission may forthwith blacklist Prof. K.S. Shivanna and disqualify him from being associated with any examination to be conducted by the Commission in future. Such Black listing may also be circulated to UPSC, other state PSCs and all other Indian universities.
(4) The Sub-Committee is satisfied that except in the 10 cases mentioned above there is no deliberate wrong or malafide intent or injustice caused in the valuation process including the moderation done by the Head Examiners/Chief Examiners.
(5) The Sub-Committee has submitted a separate report recommending reformations to be made in the entire examination and evaluation system to make it more foolproof with visible checks and balances.
268. Therefore, the Committee held that the results of these four candidates requires to be annulled and appropriate action including criminal has to be initiated against the four candidates in question. The Committee recommended that the candidature be cancelled and they be debarred from taking any examination conducted by the Commission. They were also directed to be blacklisted and disqualified from being associated with any examination to be conducted by the Commission in future. It was also directed the said blacklisting may also be circulated to UPSC and other State Public Service Commissions and all other Indian Universities.
K.K.MISHRA REPORT:
269. After coming to know of the gravity of the illegalities in the recruitment by the KPSC, the Government of Karnataka appointed Sri. K.K.Mishra, the Additional Chief Secretary and Principal Secretary to the Government, Commerce and Industries Department, to examine the report of the Three Man Committee constituted by the KPSC and hold a fresh enquiry and submit a report. On such entrustment of enquiry, Sri K.K. Mishra, after examining the report of the said Committee of the KPSC, was of the view that examining some witnesses, who are 31 in number, again for the purpose of present enquiry would not serve any useful purpose. Further since 230 OA No. 170/00961/2019 & Ors/CAT/BANGALORE most of them are employees of the KPSC or various Colleges/Universities, he had no authority to secure their presence and examine them or record their statements. Therefore, in his view, it would suffice for the enquiry by him that if the findings of the KPSC Sub-Committee as regards the role of the officers concerned are reviewed and the evidence recorded/available against them is revalued, with a view to make recommendations to the Government for appropriate action. Thereafter, Sri K.K. Mishra took note of the recruitment process undertaken by the KPSC., the application filed by the aggrieved persons before the KAT., the orders passed by the KAT, then the orders passed by the High Court, setting aside the order passed by the KAT in part and directions issued in the said orders. Thereafter, he has reviewed the report of the Three Man Committee. He submitted a report, which is as under:
(iv) Irregularities:-
17. On the basis of allegations made before the Tribunal/High Court and the enquiry conducted by the KPSC sub-committee, following irregularities have come to light.
a. Mutual copying by four candidates, namely Shri K. Rameshwarappa and three of his close relatives by obtaining adjacent seats in the same examination room.
b. Substitution of some answer books/pages of answer books in case of these candidates.
c. Awarding of unduly high marks by First Examiner. d. Unduly high increase in marks by Head Examiner. e. Undue and abnormal increase in marks by Chief Examiner at the time of moderation in General Studies and History papers in respect of these four and some other candidates. f. Moderation by Prof. K.S. Shivanna in respect of General Studies and History Papers written in English medium, although he was an examiner for Kannada Medium only.
g. Picking out of three or four answer scripts of same candidates under random mode ratio, which shows that the secrecy of code numbers was compromised.
31. It is therefore evidence that the irregularities committed in regard to Main Examination were much larger and widespread than those identified by the sub committee which it appears is only the proverbial tip of the iceberg. Firstly, the irregularities were not confined to the moderation/review only, since the first examiners/valuators have also increased marks at least in case of two of the ten candidates debarred by the Commission. Secondly, if the moderation/review in as many as 19 subjects was improper and illegal, it is evident that the code numbers of a very large number of candidates had been leaked out. Although the ultimate responsibility for this large scale leakage 231 OA No. 170/00961/2019 & Ors/CAT/BANGALORE will have to be borne by the then Secretary, KPSC, it will be too far fetched to argue that he himself was personally interested in all these cases or that he had personally leaked out the code numbers of all such candidates. The available evidence does not absolve him, but points to serious irregularities of much higher magnitude than what has been brought out by the report of the sub committee as the three men conspiracy. A more likely theory appears to be that code numbers of the answer scripts of a large number of candidates had been leaked out to the candidates. These candidates had then individual approached the valuators/Head examiners/Chief examiners for getting their marks increased.
32. Since the number of candidates whose code numbers appear to have been leaked out is quite large, it may not be very difficult through proper interrogation of the concerned candidates to ascertain the modus operendi as also the identify of the persons who had leaked the code numbers in mass.
Conclusion
33. After careful consideration of all the material made available to me, it is evident that a large number of irregularities have been committed in the conduct of Gazetted probationers (Group A and B) Main examination 1999. The report of the subcommittee has brought out only some of these irregularities. Some others are listed in the Proceedings of the Commission dated 18.1.2003 and yet some others have been brought out by the Hon'ble High Court in its order dated 11.10.2002. The three men conspiracy theory propounded by the subcommittee does not explain all the irregularities, a number of which were brought out subsequently in the judgment of Hon'ble High Court. Available information now points to irregularities in a very large number of cases and possible involvement of a very large number of persons associated with the examination.
34. Most of the irregularities committed are very serious and are criminal in nature. The sub committee has identified offences involving 'Manipulation of records, criminal conspiracy and criminal breach of trust" and has rightly suggested initiation of criminal proceedings in respect of persons responsible. Most of these offences appear cognizable. Under Section 44 of Code of Criminal Procedure, it is the duty and responsibility of every citizen to report the commission of serious offences to nearest magistrate or police. A failure to do so is an offence under Section 202 of the Indian Penal Code. Further in this case, KPSC has undertaken to take action on subcommittee's report in its submissions to the High Court. The Commission may, therefore be advised to list the offences committed and file a 232 OA No. 170/00961/2019 & Ors/CAT/BANGALORE FIR before the Police at the earliest. KPSC may also be advised that whenever there is prima facie case as in case of Prof. K.S. Shivanna, Shri K.S. Bahat, Shri Veerabadraiah and Shri K. Vishwanath the concerned Universities may be asked to initiate simultaneous disciplinary proceedings against them. KPSC may also permanently debar them from any future work. While there is prima facie case against some like Prof. K.S. Shivanna, the role and responsibility of most others for the purpose of conducting Departmental Enquiries can be fixed only after detailed investigation, which can be conducted by professional experts.
35. Except in cases of valuators, the Head Examiners and the Chief Examiners, against whom direct evidence is available, any action to initiate disciplinary proceedings against other officers at this stage, without full investigation, may not serve much purpose, since the available evidence is sketchy and the persons really guilty may not have been identified. A comprehensive, impartial and early investigation would also help restore the faith of general public in the selection process for Government services, which has been seriously impaired by several alleged irregularities and illegalities. "It is therefore very necessary that, as regards Departmental Enquiries, the Government should refer the case to Hon'ble Lokayukta with a request to get all aspects of irregularities investigated, identify the persons responsible and suggest further necessary action.
36. Before parting with the report, it may be worthwhile to make some recommendations with regard to two matters relating to this examination. The first is regarding the process of coding of answer scripts. It appears that at the behest of Shri Harish Gowda, the present Secretary, the KPSC has become the first examination body in the country to devise a bar coding system for coding of answer scripts. The system has already been used for Excise Sub-Inspectors' examinations held in December 2002. It appears that the Bangalore University has also decided to introduce the bar coding system in their examinations to ensure strict confidentiality and prevent any external interference during the evaluation process. KPSC must ensure that the system is adopted in all their future examinations without any exception.
37. The Second recommendation relates to marks assigned for personality test and interview. For several selections, the number of marks for interview have been significantly reduced. But for gazetted probationers (Group A and Group B examination, marks for interview are still quite high being 200. In the list of successful candidates (since set aside and to be redone) out of first 100 candidates as many as 57 owe their 233 OA No. 170/00961/2019 & Ors/CAT/BANGALORE high ranks to 195 marks out of 200 secured by them in the interview. Out of first 400 candidates as many as 205 have secured 195 marks out of 200. Considering that the difference between the highest and the lowest marks awarded for the interview is 120, the interview marks have played a predominant role in the selection process. This needs to be corrected, as has been done for other selections. It is therefore recommended that the marks awarded in the interview in these examinations may be considered only for qualifying purposes (as in case of English and Kannada papers) and may not be considered for deciding the merit. Till such time as rules are mended to this effect, KPSC be advised to associate members from a panel of eminent outside experts, well versed in personality assessment, for conducting interviews, as is the practice being followed by UPSC in case of All India Services Examinations. Only one or two members from KPSC may be included in each team of interviews."
270. As could be seen from the aforesaid report, Sri.K.K.Mishra has observed that the report of the subcommittee has brought out only some of the irregularities. Some others are listed in the proceedings of the Commission dated 18.01.2003 and yet some others have been brought out by the Hon'ble High Court in its order dated 11.10.2002. The three man conspiracy theory propounded by the subcommittee does not explain all the irregularities, a number of which were brought out subsequently in the judgment of the Hon'ble High Court. Available information now points to irregularities in a very large number of cases and possible involvement of a very large number of persons associated with the examination. Most of the irregularities committed are very serious and are criminal in nature. The subcommittee had identified the offences involving "manipulation of records, criminal conspiracy and criminal breach of trust". Most of these offences appears cognizable. Under Section 44 of the Code of Criminal Procedure it is the duty and responsibility of every citizen to report the Commission of serious offence to nearest Magistrate or Police. A failure to do so is an offence under Section 202 of the Indian Penal Code. A comprehensive, impartial and an early investigation would also help restore the faith of general public in the selection process for Government Service, which has been seriously impaired by several alleged irregularities and illegalities. He has observed insofar as marks assigned for personal test is concerned, for several selections, number of marks for interview have been significantly reduced. But for gazetted probationers examination, marks for interview are sill quite high being 200. In the list of successful candidates (since set aside and to be redone), out of first 100 candidates, as many as 57 owe their high ranks to 195 marks out of 200 secured by them in the interview. Out of first 400 candidates, as many as 205 have secured 195 marks out of 200. Considering that the difference between the highest and the lowest marks awarded in the interview is 120, the interview marks have played a predominate role in the selection 234 OA No. 170/00961/2019 & Ors/CAT/BANGALORE process. This needs to be corrected as has been done for other selection.
271. After Sri. K.K.Mishra submitted his report to the Commission, a meeting was held by the Commission on 21.05.2003. The members of the Commission were of the view that the order dated 11.10.2002 passed by this Court was not followed in letter and spirit. There was lapses from the order in the following aspects:
1. Random review method as per order of the Hon'ble High Court in respect of answer script, where there is various of plus or minus marks.
2. Instead of moderated Head/Chief Examiners, joint valuation was carried on.
3. Moderation of more than 50% of the answer spirit were picked up as against 10%.
4. After moderation of the answer script, only plus mark was given to their favorite candidates.
272. Four of the members of the Commission noted that the Secretary Sri.B.A.Harish Gowda who was made incharge by the High Court to monitor this evaluation has not discharged the duty of moderation of answer script as per the orders of the High Court. While picking up of the papers, the procedure laid down by the High Court was not followed. The Secretary has not followed the orders of the High Court in all aspects. The procedure adopted by the Secretary was not in accordance with law of the letter and spirit of order of the High Court instead of clarifying the matter and ensuring that the Secretary has followed the orders of the High court in his letter and spirit and course evaluation of the view of the - members who are present in the meeting observed that then Chairman Dr.H.N.Krishan has dodged the points raised. He has given clean chit to the Secretary and he has also admitted that the actual moderation of the answer script which has not placed on it. Bare reading of the minutes of the meeting held on the said date clearly shows that the then chairman was interested party.
C.I.D. REPORT
273. As no steps were taken by the Government in pursuance to the recommendation of K.K.Misra's Committee, the KPSC continued to commit the same mistake in the successive examinations conducted for the year 1999 and 2004. The petitioners preferred W.P.No.11550/2008 for a direction to the Central Bureau of Investigation to thoroughly enquire into the whole selection process for the year 1998, 1999 and 2004 batches. When the said writ petition 235 OA No. 170/00961/2019 & Ors/CAT/BANGALORE came for consideration on 16.10.2014 before the Division Bench of this Court presided by the Hon'ble Chief Justice, learned Principal Government Advocate stated that the Government will order to investigate in the matter through the CID. In fact, in the first instance, Mr.Ajith.J.Gunjal was appointed by the Hon'ble Chief Justice to monitor the investigation. Subsequent to this, former Judge "Justice Mohammed Anwar" was appointed to monitor the investigation. After a detailed investigation, the CID submitted its report.
274. Sri.B.A.Padma Nayana, IPS, Deputy Inspector General of Police, CID was appointed as the Enquiry Officer for the years 1998-99 and 2004. After investigation, he submitted a report on 09.04.2012. It was placed on record. After referring to the facts set out above, the CIDs issued notices to all the selected candidates, the petitioners in the writ petitions and others to appear before the Investigating Officer to give their statements. Good number of witnesses turned up and gave their statements. Statements of key witnesses were also got recorded under Section 164 of Cr.P.C. through the jurisdictional Court.
275. The said report discloses that voluminous documents were seized from KPSC and other offices and were brought on PF (1-65). The houses of accused Dr. H.N.Krishna, the Chairman of the KPSC and Mrs. Asha Parveen were searched and a number of incriminating documents were seized from the residence of Dr. H.N.Krishna which included the list of candidates with their register numbers, photos, marks secured and calculation of marks noted in pencil. Apart from this, number of documents relating to movable and immovable properties were recovered from the residence of Dr.H.N.Krishna and these were handed over to Karnataka Lokayukta for taking necessary action as per the directions of the Hon'ble Monitoring Judge. Karnataka Lokayukta Police registered a case of amassment of properties disproportionate to known sources of income and investigating the same vide LAC No.56/2011.
276. During the course of investigation, accused Dr.H.N.Krishna, former Chairman of KPSC was arrested, interrogated and remanded to judicial custody who was later released on bail by the Hon'ble High Court. Accused Smt.Asha Parveen, Smt.Salma Firdose who were candidates in 1998 selection were arrested and released on bail since anticipatory bail was granted to them by the Hon'ble High Court of Karnataka. Sri.M.Banakar, Sri.Narasimha and Sri.Gopi Krishna, all employees of KPSC were also arrested and remanded to judicial custody as they were found to have conspired with Dr.H.N.Krishna in commission of offences, which are considered in charge-sheet submitted to the jurisdictional 1st ACMM Court. The Sessions Court later released these accused persons on bail.
277. A detailed investigation has disclosed that:
236 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
1. Accused Dr.H.N.Krishna is punishable for offences under Section 418, 465, 468, 471, 506 r/w 109, 120(b) IPC.
2. Accused Ms.Asha Parveen is punishable for offences under Section 465, 468, 471, 420, 120(b) IPC.
3. Accused Ms.Salma Firdose is punishable for offences under Section 465, 468, 471, 420 IPC.
4. Accused Sri.K.Narasimha is punishable for offences under Section 465, 471, 468 r/w 120(b) IPC.
5. Accused Sri.P.Gopal Krishna is punishable for offences under Section 465, 468, 471 r/w 120(b) IPC.
6. Accused Sri.M.B.Banakar is punishable for offences under Section 465, 468, 471 r/w 120(b) IPC.
278. In the said report, each of the allegations were considered separately. Some of the allegations were found to be without any basis but some allegations were found to be proved. In these writ petitions, we are only considered with those allegations, which are held to be proved. They are extracted as hereunder:
3. Allegation - Misleading the Hon'ble Court resulting in grave detriment of meritorious Candidates:
It is alleged that In a memo dated 27.03.2002 filed by the KPSC before the Hon'ble Court, that "The total number of cases where the variation is plus or minus 20 or more has been identified as 661". KPSC south the moderation of answer scripts on the basis of this submission and thereby mislead the Hon'ble High Court that this was not a very large figure and that being so it would not entail any hardship to thousand of candidates who had taken up the examination.
Findings:
The KPSC in its Memo dated 27.03.2002, before the Hon'ble High Court in Writ Petition Nos.12548-12589/2002 submits that "The total number of cases where the variation is plus or minus 20 or more has been identified as 661" but it is not clear in how many number of answer scripts the said number of variation were noticed. However, the Hon'ble High Court in their Order dated 11.10.2002 directed the KPSC to redo a fresh moderation in regard to the 18 optional thereafter in another order for two more general papers. Accordingly, KPSC carried out the moderation and scaling process. The petitioners have chosen the figure 661, which was submitted by KPSC to the Hon'ble Court in a different context.
It is also alleged by the petitioner's that as many as 404 candidates the marks were reduced to 'Zero'. This is because of the moderation and scaling of marks adopted by the KPSC 237 OA No. 170/00961/2019 & Ors/CAT/BANGALORE as per the clarificatory orders dated 04.07.2003 by the Hon'ble High Court of Karnataka on IA-V filed by the KPSC in Writ Petition Nos.12548 to 12589/2002.
Statement of Ms.Shoba Basavaraj, system Analyst was recorded in connection with moderation and scaling (Annexure-
7).
Also Sri.Harish Gowda, IAS the then Secretary, KPSC and presently working as Secretary to Government, Food and Civil Supplies and Consumer Affairs, Department gave his written statement regarding moderation, scaling and other related matters (Annexures -8). The Hon'ble High Court of Karnataka has observed "Following the directions from the Hon'ble High Court and Hon'ble Supreme Court Moderation and scaling was done by KPSC with respect to the Gazetted probationer's examination 1998.
According to Mr.Harish Gowda, IAS and former secretary in his statement states that "answer scripts of 1998 Gazetted Probationers (Group A & B) Examination were picked for the revaluation as per the order of the Hon'ble High Court had extracted the suggestion made by the KPSC in its memo dated 27.03.2002, as follows:
"On the basis of random review of answer scripts done in respect of answer scripts evaluated by each examiner average variation shall be arrived at. Wherever the average variation is less than plus or minus 20 general review of the marks awarded need not be done. However, where the average difference is plus or minus 20 or more, the marks awarded by such examiner shall be increased or decreased by that average in respect of each of the answer scripts evaluated by that examiner. In case the average variation is less than plus or minus 20, but variation in respect of individual answer scripts is plus or minus 20 or more those answer scripts would be subjected to third valuation".
The Hon'ble Court had further directed that the entire process of moderation shall be done under the supervision of the Secretary of KPSC and that it is open to him to have the moderation done at a two-tier level (that is Head Examiner and Chief Examiner) or have it done at only one level (that is chief Examiner). He shall select and prepare a fresh panel of Head and / or Chief Examiners for this purpose. We decided to have the moderation done at one level, but in a better way.
238 OA No. 170/00961/2019 & Ors/CAT/BANGALORE In order to ensure that no malpractice was committed or the weaknesses or handicaps of the examiners affected the valuation and to ensure uniformity of treatment to tall the scripts, as any increase or decrease in marks in one or two scripts by the Chief examiner would have affected the interests of the other candidates, I had got the revaluation carried out jointly by two examiners as in the case of Pre-University examination revaluation. The examiners were made to sit together, read the answers together and then discuss the merits and demerits of the answers and then jointly award the marks. This fact was placed before the Hon'ble High Court Karnataka in paragraph 8 of the application of the Commission dated 12.06.2003 (IA No.V), wherein clarification about the manner in which scaling had to be carried out had been sought. It is as follows:
"This Hon'ble Court had permitted the Secretary of the petitioner to have the moderation done at a two tier level or have it done at only one level, also allowing him to select and prepare a fresh panel of Head and / Or Chief Examiners for the purpose. The random review/moderation at two tier level was given up and the secretary has got it done at one level, but with a team of 2 lecturers/ professors expect in two subjects i.e., Geology and Criminology, wherein it was found very difficult to procure very senior examiners to evaluate the answer scripts of those two subjects, which were got evaluated by single senior professors. The method of random scaling that was proposed by the Commission as per its Memo dated 27.03.2002 was found to be unworkable, leading to great injustice having detrimental effect on candidates"
Having considered the said application, the Hon'ble High Court in its order dated 04.07.2003 clarified the manner in which the moderation had to be carried out.
Every day morning, Sri. Arunachalam, Section Officer in charge of the strong room used to bring examiner wise computer printed lists showing the secret codes and marks scored in all the answer scripts evaluated by the examiners, in the descending order. Having placed the lists before me, he used to mention the number of scripts that should be selected for the few in the middle. Consciously we used to avoid ticking any scripts in the bottom, since they belonged to "non serious"
candidates who scored very low marks. However, the answer scripts for the third valuation contemplated in the order of the Hon'ble High Court were selected on the basis of the subjects 239 OA No. 170/00961/2019 & Ors/CAT/BANGALORE wise lists furnished by the computer programmers of the commission.
I have also been asked to explain how moderation was carried out in Chemistry, Law, Philosophy, Mechanical Engineering, Management, Electrical Engineering, Hindi and Urdu subjects, in violation of the order of the Hon'ble High Court. Revaluation and moderation has not been carried out in the said 8 subjects after the Hon'ble High Court annulled the tainted moderations in the 21 subjects. I have verified this fact with the officers of the Commission. To be doubly sure, the Senior Programmer has run a query on the system to find out any moderated marks and the result is in the negative. I have now produced the print out taken on the basis of the said query. Since those subjects are untouched, the marks awarded in the original valuation and moderation remains in the computer database as they were. Perhaps, someone has given a print out showing marks of the original valuation, while making the false claim.
"No illegality or violation of the orders of the Hon'ble High Court has been committed while implementing its orders in respect of revaluation, moderation and scaling"
Also the statement of Sri.Ramprasad, IAS, Commissioner Health and Family Welfare Department was recorded who succeeded Sri. Harish Gowda states as under:
"I was working as Secretary, K.P.S.C, from 12.08.2004 to 12.01.2007. Dr.H.N.Krishna was the Chairman of the commission during my tenure."
After Government gives the approval for Recruitment of Class I and II Gazetted probationers the Recruitment process will be initiated as per the Gazetted probationers Recruitment Rules 1997 which also includes issuing of notification calling for applications. The Notification prescribes the manner of submission of the application along with the necessary enclosures. This recruitment under the rules takes place in three stages i.e., preliminary examination, main examination and personality test.
The Secretary has the overall responsibility of holding the examinations both preliminary and main as per the procedures prescribed under the rules. The aspiring candidates should full fill the eligibility criteria as regards age, qualification, reservation etc., notified as in the notification. The list of eligible candidates to write the main examinations will be prepared based on their merit in the preliminary examination and reservation in the ration of 1:20. The Secretary supervises the overall conduct of 240 OA No. 170/00961/2019 & Ors/CAT/BANGALORE main examination and also the subsequent evaluation of the answer scripts.
Based on the merit and reservation, a list of candidates eligible for personality test will be prepared in the ration of 1:5. Thereafter, the commission schedules personality test after constituting one or more committees for the purpose of conducting personality test.
The Candidates eligible and selected for personality test produce the original documents to the committee concerned for verification at the time of personality test. The personal staff of the members constituting the committee, verify the original documents and record their observations in the list as well as on the application. The committee concerned conducts the interview based on the information provided by the personal staff and also on the application of the candidate concerned. The committee after awarding the marks and making their observation on the documents produced, send the marks awarded in sealed cover to the confidential branch. Confidential branch in 'turn enters the marks in a marks sheet made available by the computer branch. Further, the confidential branch also cross verifies the mark in this manner the confidential branch submits the marks statement through the Secretary to the Chairman of the commission. After this statement is approved by the Chairman, the marks will be once again cross verified with the manuscript and then the marks statement will be published either on the same day or following day of the personality test.
As far as the other remarks of the Committee, the same will be sent tot the concerned section by the confidential branch. The concerned section will verify the observations with the original applications, are Section officer, the Asst. Secretary and the Deputy Secretary record their views on the file and through secretary the file will be submitted to the commission for final orders. The decision of the commission in this matter is final. When the file regarding the remarks of the committee is put up to me by the concerned branch in a file, the interview sheets (statement showing the particulars of candidates who are eligible for personality test) are not brought to my notice.
Specially in case of Smt. Asha Parveen.S.M. (Reg.No.113732) who was a candidate in 1998 examination was called for the Personality Test in G.M.Category on 28.12.2015 at 10-00 A.M, the remarks of the committee was put up to me in a file, but the interview sheets were not part of that file. Therefore, the remarks passed by Chairman and the members was not in my knowledge.
241 OA No. 170/00961/2019 & Ors/CAT/BANGALORE As regards candidates Sri. Hanumantha Gowda (Reg.No. 104648) who appeared for 1998 selection also the interview sheet was not made available to me. Hence, I am not in a position to clarify the selection of this candidate in general merit category.
The Notification of 1998 selection clearly stipulates that a candidate claiming reservation under any reservation except SC, ST and category -I is required to enclose an attested copy of the caste certificate issued by the Tahsildar after the notification but before the last date for submission of the application.
When I took over as Secretary, most of work in respect of revaluation for moderation and scaling was over. During my tenure the Hon'ble Supreme Court confirmed the orders of the High Court as regards moderation and scaling. It was found that in some of the subjects the revaluation was much more than the prescribed 10% mandated by the Courts. I got the revaluation in respect of a few subjects wherein the percentage was less than 10% carried out strictly as per the procedure followed previously. In order to ensure that the picking of the scores as per the court orders is transparent, the selection of the papers was done randomly using a computer programmed on the basis of the formula prescribed by the Courts. The final merit list has been prepared for the personality test". His statement is enclosed (Annexure-9).
Findings:
While selecting the scripts for valuation a list of marks in the descending order was prepared. A perusal of records and the answer scripts show that KPSC has taken in to consideration the marks awarded by the Head/Chief Examiners at the time of scaling. Since the KPSC have taken the annulled marks (awarded by Head/Chief Examiner), it is violation of the directions issued by the Hon'ble High Court in Writ Petition Nos.12548-12589/2002. This wrong step of the KPSC has resulted in titling of marks and ultimately results. It is serious violation of Hon'ble High Court Order and a serious lapse. The copy of the order passed by the Hon'ble High Court in Writ Petition Nos.12548- 12589/2002 is appended to this report as Annexure-10.
10. Allegation - Ratio Violation in calling for the Personality Test:
242 OA No. 170/00961/2019 & Ors/CAT/BANGALORE It is alleged that in the 1998 selection process, KPSC has violated the ratio in calling for the Personality Test. Though the total number of candidates to be called for the Personality Test and the number of candidates actually called for the Personality Test doesn't differ much, what is pertinent to note is that in respect of GM Category, the number called is abnormally low and in respect of 3A & 3B Categories is abnormally high, petitioner say that following table makes their point clear:
Sl Category Number of Number Number Difference Ratio No posts to be actually in the Differenc allotted to actually Called Number e each Called category 1 GM & 187 935 556 -379 1:7.96 GM/XMP 2 SC 64 320 391 +71 1:6.10 3 ST 19 95 114 +19 1:6 4 C-1 22 110 141 +31 1:6:36 5 2A 52 260 353 +93 1:6:80 6 2B 17 85 114 +29 1:6:54 7 3A 11 55 156 +101 1:14.18 8 3B 11 55 107 +52 1:9.80 TOTAL 383 1915 1932 Findings:
KPSC has provided the category wise break-up, number of posts against each category and the number of candidates called for Personality Test as follows:
Category No.of No.called for
posts PT
GM 118 591
GM-W 58 290
GM- 11 55
XMP
1 16 80
1-W 6 30
2A 35 180
2A-W 17 35
2B 12 65
2B-W 5 25
3A 9 46
3A-W 2 10
3B 9 46
3B-W 2 10
SC 44 220
243 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
SC-W 20 100
ST 17 86
ST-W 2 10
In accordance with the conditions contained in Schedule -II of the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997 the entire classification was done in accordance with Government order No. ಆ ಇ 08, ಸ ಮ 95, ಂಗ , ಂಕ 20 1995. (Annexure-13).
KPSC also clarifies that many of the candidates who had been considered for selection under GM quota, but not selected under that quota. At later stage they have been considered for the post under reserved categories. In that background the variations have appeared in the said lists. The Petitioners have not taken in to account the number of category candidates who moved in to general merit by virtue of their merits, and that is the reason they have alleged.
It is disclosed during the investigation that taking undue advantage of this provision Dr.H.N.Krishna, obtained letters from the candidates belonging to certain categories that they failed to produce the ORC and pushed them to GM to favour chosen category candidates and facilitated in their selection by manipulating the interview sheets with the help of his trustworthy staff without the knowledge of other members. This issue is considered in the charge sheet already submitted.
3. Allegation - Selection Against Notification:
It is alleged that in the 2004 selection process, there were 4 posts of District Marketing Officer. Two of which were reserved (One for Scheduled Caste and one for Category 2A). The other two were in GM (One for Female and one for Kannada Medium). The posts meant for scheduled Caste, Category 2A and GM - Female were filed by the respective candidated. However, the GMKannada medium post was filled by a 3AKannada Medium candidate (Sri. Sreenivasa Reddy, Reg.No.144700, date of birth 04.04.1971). As on 17.12.2004 i.e., the last date for submitting the application, the said candidate was 33 years 8 months old.) Findings:
Sri.Srinivasa Reddy who had claimed 3AKannada Medium category was selected against a post reserved for GM-Kannada medium category candidate. Though the said Sri.Srinivasa 244 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Reddy (Reg.No.144700) has claimed selection under 3A-
Kannada medium category, as he had scored high marks and fell within the GM Cut-off marks, he was selected under GMKannada Medium category.
The petitioners have alleged that a number of 3A category candidate (who have been given with 4% reservation) placed in the GM category on merit seems to be abnormal , when compared to the number of other reserved category candidates (who account for the rest of 46% reservation) who have been placed in GM category on merit. The number of 3A category candidates in the GM category on the basis of merit, is quite abnormal, in comparison with other reserved category candidates.
Year Total Un- 3A SC,ST,C-1,C2,
Reserved Candidates 2B,3A,3B and
posts selected in other categories
GM on selected in GM
merit on merit
1998 187 27 7
1999 96 4 7
2004 75 14 12
TOTAL 358 45 26
Findings:
No doubt that a candidate opting under caste category will be first considered under General Merit. In case candidate is not selected under the GM, he will be considered under the category in which he has applied. The perusal of the 3 lists of the candidates after the Personality test gives an impression that certain category candidates are given more weightage. Also it is observed that liberal marks are given to some candidates who had scored low marks in Written -Examination and low marks are given to the candidates who had scored high marks in the Written Examination.
4.Allegation -Tampering with Marks:
It is alleged and doubted by the petitioners that in the selection of the three patches that there was manipulation of marks of individual candidates in the Written Examination so as to favour the chosen candidates.
Findings:
The petitioners have not quoted any particular instance but the allegations are general in nature. The allegation seems to be 245 OA No. 170/00961/2019 & Ors/CAT/BANGALORE unfounded, as this is not based on any reliable facts. In facts CID has procured all the answer scripts of 1998 and 2004 examination and perused them. Answer scripts of 1999 examination are nor preserved by the Commission since they are destroyed as per the their Rules.
HOTA COMMITTEE :
279. Against the backdrop of the aforesaid Writ Petitions filed before this Court and the order of the High Court dated 23.8.2011 directing the Deputy Inspector General of Police, CID, to conduct the investigation and when the said report was submitted, and action was not taken in terms of the report, the petitioners preferred these Writ Petitions. KPSC conducted competitive examination and personality test for 2011 batch of gazetted probationers. During the process of personality test, on the basis of the representation of one Dr.Mythri H.P.S., and also through the electronic media it came to the notice of the Government that the Commission was said to have committed large scale irregularities in conducting the main examination and viva voce. Therefore, the Government again directed the CID to conduct investigation and submit its report. The report is submitted. The report establishes the allegation of manipulation and illegality alleged in the 2011 batch of selection to the Gazetted Probation Posts. The Government of Karnataka rescinded the request made to the KPSC to fill up 362 posts of Gazetted Probation Group 'A' and 'B' Officers.
Thus, the persons who are selected in the said batch were not appointed. They preferred applications challenging the said order of the Government in application No.6268- 6395/2014 and connected matters. In the said proceedings, Y.S.Dalawai, Under Secretary (Services-VII), Department of Personnel and Administrative Reforms, Vidhana Soudha filed an affidavit on 29.04.2016 stating that on 25.06.2013, an FIR was registered in Crime No.28 of 2013 in Vidhana Soudha Police Station for the offences punishable under Section 7 of Prevention of Corruption Act, 1988 and under Sections 34, 120B, 418, 420 and 465 of IPC against (a) Sri.Gonal Bhimappa, Chairman, KPSC; (b) Sri.Arunachalam, Asst. Secretary, KPSC; (c) Sri.Sundar, Secretary, KPSC; (d) Dr.Mangala Sridhar, Member, KPSC and four other officials, after a Preliminary Investigation Report was submitted to the Government and seeking sanction under the provisions of the Prevention of Corruption Act, 1988. It is submitted that the matter is reserved for judgment. As these large scale irregularities in conducting the examination and personality test has unabated, probably being convinced with the procedure followed in terms of the Rules being inadequate, to prevent such mischief, the Government by order dated 26.7.2013 decided to constitute a committee under the Chairmanship of the retired Chairman of the Union Public Service Commission, including the Additional Chief Secretary to Government as Member to collect some good practices from Union Public Service Commission and other State Public Service Commissions and to 246 OA No. 170/00961/2019 & Ors/CAT/BANGALORE make recommendations, as early as possible, to conduct free and fair selection while making recruitment to the posts in the State Civil Services. Sri P.C.Hota, IAS (Retd.) Chairman (Retd.), UPSC, was appointed as the Chairman of the said committee. The said committee took note of the writ proceedings pending before this Court, particularly irregularity conducted in the personality test for direct recruitment of gazetted probationers in different generalistic services of Group 'A' and Group 'B'. It had interaction with all the stake holders. After taking note of the recommendations of the Lee Commission (1924), the Constitutional provisions, the procedure followed by the UPSC, the provisions of the Government of India Act, 1935, it submitted its report which is popularly known as the 'Hota Committee' report.
280. Dealing with the question of appointment of a Chairman and members of the KPSC is concerned, it observed that the Constitution does not lay down any qualification for appointment of a Member or a Chairman of either the UPSC or a State Public Service Commission. It is, however, presumed that because of their functions, they should be men of eminence in their respective academic/professional fields and should have unimpeachable record for fair play and impartiality on matters in the public domain. Therefore, both the President of India and Governors of States have to exercise utmost care in appointing to the Public Service Commissions men of outstanding caliber and competence. They referred to the observations of the Supreme Court in Ajay Hasia vs Khalid Mujib [AIR 1981 SC 487] where the Apex Court held that Members and Chairman of Public Service Commissions have to be men of high integrity, caliber and qualification. Therefore, the process of selection and appointment of persons as Members and Chairman of KPSC is of utmost importance. It was observed, at present there is no standardized arrangement to recommend names of suitable persons to the Governor of the State for appointment of Chairman and Members of the KPSC. As the high constitutional office of Chairman and Members deserve to be filled up by persons with track record of integrity, fairness and intellectual competence, the Committee recommended that a broad-based Search Committee be constituted by the Government of Karnataka with the incumbent Chief Secretary as the Member - Convenor. A former Chief Secretary to Government/a former Secretary to the Government of India and a retired or incumbent Director of the Indian Institute of Management, Bangalore and retired or incumbent Director of the Indian Institute of Science, Bangalore and a Vice-Chancellor of a Central University may be other Member of the Search Committee. The broad-based Search Committee will scrutinize the bio-data and hold "personal talk", if required, to short-list two candidates for one vacancy of a Member of the KPSC. The Chief Minister of the State of Karnataka may like to nominate one out of the panel of two names suggested by the Search Committee for appointment as a Member by Governor of the State of Karnataka. Invariably, the senior-most 247 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Member may be appointed as the Chairman of the KPSC unless the seniormost Member is considered unsuitable for such appointment by the Government. The Search Committee may finalize the list of two names to be sent to the Chief Minister at least two months in advance of the likely date of occurrence of the vacancy of a Member/Chairman KPSC so that the appointment is announced well in advance.
281. The material on record discloses that the persons who are behind grave irregularity and fraud are none other than the Chairman of the KPSC and the Secretary of the KPSC and the officials of KPSC. The members of the Commission have stated that they have acted at the behest of the Chairman of the KPSC either in giving more marks to the candidates, giving marks to the persons who did not attend the interview, reducing marks of other candidates. It only shows the caliber and the standard of persons who are appointed as the members of the Committee.
282. The CID report discloses that voluminous documents were seized from the house of Dr.H.N.Krishna, the Chairman of the KPSC. Apart from this, number of documents related to movable and immovable properties were recorded from the residence of Dr.H.N.Krishna and these were handed to the Karnataka Lokayukta for taking necessary action as per the directions of the Hon'ble monitoring Judge. Karnataka Lokayukta Police have registered a case of amassment of properties disproportionate to known sources of income and investigated the same vide LAC No.56/2011. Dr.H.N.Krishna was arrested, interrogated and remanded to judicial custody. In fact, Smt.Asha Parveen, Smt.Salma Firdose who were candidates in 1998 selection were arrested and released on bail since anticipatory bail was granted to them by the High Court of Karnataka. Sri.M.B.Banakar, Sri.Narasimha and Sri.Gopi Krishna, all employees of KPSC were also arrested and remanded to judicial custody as they were found to have conspired with Dr.H.N.Krishna in commission of offences.
283. The detailed investigation discloses that, Dr.H.N.Krishnhas committed offences punishable under Sections 418, 465, 468, 471, 506 read with 109, 120 (b) of IPC. Mrs.Asha Parveen, Salma Firdose, K.Narasimha, Gopi Krishna and M.B.Banakar were accused of having committed offences under Sections 465, 468, 471, 420, 120 (b) of IPC. Against the Secretary Sri Monnappa also charge sheet was filed accusing him of committing offences under Sections 120 (b), 109, 166, 409, 418, 420 of IPC and the case is pending. In respect of 2011 selection, Y.S.Dalawai, Under Secretary (Services-VII), Department of Personnel and Administrative Reforms, Vidhana Soudha filed an affidavit on 29.04.2016 stating that on 25.06.2013, an FIR was registered in Crime No.28 of 2013 in Vidhana Soudha Police Station for the offences punishable under Section 7 of Prevention of Corruption Act, 1988 and under Sections 34, 120B, 418, 420 and 465 248 OA No. 170/00961/2019 & Ors/CAT/BANGALORE of IPC against (a) Sri.Gonal Bhimappa, Chairman, KPSC; (b) Sri.Arunachalam, Asst. Secretary, KPSC; (c) Sri.Sundar, Secretary, KPSC; (d) Dr.Mangala Sridhar, Member, KPSC and four other officials. After a Preliminary Investigation Report is submitted to the Government, seeking sanction under the provisions of the Prevention of Corruption Act, 1988. In fact, the Governor of Karnataka subsequently passed an order of suspension of a member of the KPSC on similar grounds. Challenging the said order of suspension, Writ Petition is filed which came to be dismissed. Writ Appeal is filed before this Court and is pending. Subsequently, the Government of Karnataka recommended the name of another person for the post of Chairman of KPSC. The Governor of Karnataka sought for clarifications and being satisfied that the said person is not suitable for the said post declined to appoint him. The Government of Karnataka is not yet able to appoint the Chairman to the KPSC. In fact, the Governor also did not appoint all the persons recommended by the Government as members of the Commission as there was serious allegations against some of them. This sorry state of affairs in the most progressive State of Karnataka is on account of extraneous considerations, taking precedence over persons with track record of integrity, fairness, caliber and intellectual competence. In fact, the blame for such sorry state of affairs has to squarely fall not on the persons appointed but on the appointing authority. If the rulers of the day do not keep public interest, purity of administration, welfare of the people, in particular the downtrodden and back ward classes and prefer to appoint persons who are not suitable for the job on extraneous considerations, we cannot expect any better things to happen. The facts set out in this judgment, the facts revealed in the Three Man Committee constituted by the KPSC, report given by K.K.Mishra, CID report and also the report of the committee constituted by the High Court in these proceedings clearly point out that all is not well in the functioning of the KPSC. The Chairmen's, the Secretaries, Members of the Commission and the officials are facing criminal prosecution. In fact such persons are appointed. Public interest is severelly affected. When persons with honesty and integrity are not appointed to such Constitutional posts, to expect any fair, just, reasonable selection from those persons is impossible.
284. In this background it is relevant to recall the words of two eminent personalities who had an active role in framing the Indian Constitution. Dr.Rajendra Prasad, Chairman of the Constituent Assembly of India, at its concluding session cautioned:
Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend on the men who administer it. It is trite saying that a country can have only the government it deserves.... After all, a Constitution, like a machine, is a lifeless thing.... If the people who are elected are capable and men of 249 OA No. 170/00961/2019 & Ors/CAT/BANGALORE character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country... India needs today nothing more than a set of honest men who will have the interest of the country before them.
285. Dr.B.R.Ambedkar, the Chairman of the drafting Committee of the Constitution, stated in the Constituent Assembly at its meeting on 25th November 1949 as under:
"However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be good lot. The working of the Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of the State such as the legislature, the executive and the judiciary. The factors on which the working of these organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?'"
286. The Constitution of India provides for establishment of Public Service Commission for recruitment for civil posts It provides for appointment of Chairman and Members of the Constitution. They are all Constitutional functionaries. The civil services of the country depends upon the type of persons who are appointed to the said post. The administration in the country is dependent on who administer it. If capable and men of character and integrity are appointed to the civil posts, then the constitutional goal is achieved and everyone would have a fair and equal opportunity to participate in the administration. If the persons who are so appointed lack this basic qualities and by manipulation, fraud, deceit and connivance with the officials get into these posts, one can imagine what would be the state of affairs of the administration. Therefore mere giving constitutional status to the Public Service Commission would not serve the purpose.
287. Therefore, the State Government, if they are really interested in public welfare, interest in the development of Karnataka, in having a good bureaucracy which will be sensitive to the common man, down trodden, they should appoint persons with track record of integrity, fairness and intellectual competence as suggested by the Hota Committee in its report at paragraphs 65 and 66. The procedure and the qualification prescribed by the Hota Committee report is reasonable, deserves to be implemented in letter and spirit. The material on record also discloses that, they have pointed out the cause for such mischief. The candidates with high scores in the written examination attempted to approach the members of the KPSC 250 OA No. 170/00961/2019 & Ors/CAT/BANGALORE to give him high marks in the interview test so that he is sure to be selected for appointment to the prestigious services including the Karnataka Administrative Service. They have observed that it is because of the notification of 26.9.1978. It is heartening to note that recommendation is already implemented. Then in paragraphs 47, 50, 51, 53, 56, 58, how the personality test is to be conducted, how the committee is to be constituted, who should be the members of the committee, for what duration interview is to be conducted in respect of each candidate, so that the mischief which is exposed in these proceedings is prevented. Therefore, we are of the view that the Government shall give immediate attention to the said recommendations, if necessary amend the Rules to that effect and issue a notification so that the past mistakes are not repeated and no meritorious students because of the game plan by the members of the Commission are denied the benefit of appointment in the Karnataka Administrative Service. Therefore, till the Government frames proper Rules for implementation of the recommendation of this report, as is clear from the record, these mistakes are repeated every year, to put an end to them forthwith, we direct the Government to follow the following recommendations of the Hota Committee as contained in its report, in all future selection positively without giving room for any further attacks against the selection process by the aggrieved person by approaching this Court.
IMPORTANT RECOMMENDATIONS OF HOTA COMMITTEE (46) The Committee received evidence that such a stipulation in the 1973 Rules is a vulnerable pressure point in a Merit-based selection process as the successful candidates know in advance of the Interview Test their total marks in the Main Written Examination. Such a Procedure may tempt a candidate with high scores in the Written Examination to make attempts to approach Members of the KPSC to give him high marks in the Interview Test so that he is sure to be selected for appointment to prestigious services including the Karnataka Administrative Service.
(47) The Committee would like to go on record that such a practice is not prevalent in any State Public Service Commission. In the UPSC, not only the marks in the Main Written Examination are confidential till the final Merit List for the Civil Service Examination is notified but even Chairman and Members of the UPSC are not told about the written scores of candidates even when they interview the candidates by presiding over Personality Test Boards.
(50) The Committee recommends that each Interview Board would be presided over by the Chairman or by a Senior Member of the KPSC and must have four Advisers-preferably drawn from outside the State of Karnataka. These Advisers would be from among the retired Members of the All India Services, retired Members of the Central 251 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Services Group A. These Advisers should have retired at least in the Higher Administrative Grade (i.e. equivalent to the grade of Principal Secretary to Government of Karnataka or of equivalent rank for the Gazetted Probationers' Interview and secretary to Government of Karnataka or equivalent rank for other posts). The four Advisers - a majority of them preferably from outside the State of Karnataka - may have a few reputed academic administrators as retired ViceChancellors of Central Universities; retired Professors of Indian Institutes of Technology, retired Professors of Indian Institutes of Management, retired Professors of Indian Institute of Public Administration, New Delhi, retired Professors of the National Academy of Administration, Mussoorie or other retired Professors in Training Institutes of Government of India located in different parts of the Country. Some of the outside experts invited to assist an Interview Board as Advisers may know the Kannada language for proper assessment of candidates who appear in Interview in the Kannada medium. If required, the Adviser from the state of Karnataka can translate question and answers from Kannada to English and vice versa for benefit of Advisers in the Interview Boards, who do not know the Kannada language.
(51) The Interview Boards will assess personal qualities of candidates and their suitability for the Civil Service in terms of leadership qualities, balance of judgment, variety and depth of interest, capacity to work in a team and persuasive skills and capacity for logical thinking.
(53) To eliminate as far as possible subjectivity in assessment of candidates, the KPSC may circulate a note among Chairman and Advisers of the Interview Boards that on the basis of performance in the Interview Test, candidates may be categorized as Outstanding (70 percent and above); Very Good (60 to 70 percent); Good (50 to 60 percent); Average (40 to 50 percent) and Poor (less than 40 percent).
(54) After a candidate, who has been interviewed by the Interview Board, leaves the venue of the Interview, the Chairman of the Interview Board may ask each of the four Advisers regarding opinion about the grading of the candidate in terms of his performance in the Interview. The Advisers will discuss the proposed score of the candidate in the Interview Test with the Chairman of the Board. Marks to a candidate in the Interview Test will be awarded as per the following formula: Chairman of the Board and the four Advisers will separately allot marks out of the maximum total marks in the Interview Test to the candidate. The average score of the candidate in the Interview Test would be arrived at by dividing the total marks scored by the candidate (addition of marks on a sheet of paper recorded by each of the Members in the Board). Thereafter, the percentage deviation (of the maximum) from the calculated average of each individual Member would be tabulated. The marks allotted to a 252 OA No. 170/00961/2019 & Ors/CAT/BANGALORE candidate by two of the five Members of the Interview Board which show highest deviation from the average score, would not be taken into account in computing the final score of a candidate in the Interview Test. The marks given by the three remaining Members of the Interview Board would be taken into account to calculate the average score of the candidate. This average score would be the official score of a candidate in the Interview Test. A Note on the modalities of assessment to be followed by an Interview Board regarding score of a candidate in the Interview Test is annexed. (Annexure - Three).
(56) On the day, the Interview Test will commence in the premises of the KPSC, the Chairman KPSC may call for a meeting of all Advisers and Members who are to preside over the Interview Boards. The Chairman of the KPSC may explain the attributes to be looked for in a candidate in the Interview Test by reference to the Prospectus issued along with the Notification of the Examination. In order to enable the Interview Boards to assess the personal qualities of candidate required for the Civil Service, the Chairman will request the Advisers and Members of the KPSC not to ask knowledge- based questions as knowledge of the candidate has been already tested in a Pen-and- Paper test in the Main Written Examination. Broadly speaking, questions to a candidate will be of general nature to assess his various personal attributes and leadership qualities. In the first few minutes of the interview of candidate, the Chairman of the Interview Board may like to ask a few pleasant and familiar questions to put the candidate at ease so that he overcomes his nervousness. Each candidate may be interviewed ideally for a duration of 25 to 30 minutes and instead of calling 25 candidates per day for the Interview Test as at present, only nine candidates need be called per day- five in the forenoon and four in the afternoon. Every week the Presiding Members and Advisers of the Interview Board may be changed by the Chairman KPSC and once a new set of Advisers and Members come for the Interview Board the same briefing would be given to them as was given by the Chairman to Members and Advisers in the previous week.
(58) The KPSC also selects specialists to fill up technical and scientific posts under the Government of Karnataka. It would be expedient if for filling these posts, there are Interview Boards constituted by the KPSC, where experts in the relevant technical and scientific disciplines are drawn from outside the state.
(65) The last-but not the least important issue-is the process of selection and appointment of persons as Members and chairman of the KPSC. At present, there is no standardized arrangement to recommend names of suitable persons to the Governor of the State for appointment of Chairman and Members of the KPSC. As the high constitutional office of Chairman and Members deserve 253 OA No. 170/00961/2019 & Ors/CAT/BANGALORE to be filled up by persons with track record of integrity, fairness and intellectual competence, the Committee recommends that a broad - based Search Committee be constituted by the Government of Karnataka with the incumbent Chief Secretary as the Member - Convenor. A former Chief Secretary to Government/a former Secretary to the Government of India and a retired or incumbent Director of the Indian Institute of Management, Bangalore and retired or incumbent Director of the Indian Institute of Science, Bangalore and a Vice-Chancellor of a Central University may be other Member of the Search Committee. The broad - based Search Committee will scrutinize the bio-data and hold "personal talk", if required, to short-list two candidates for one vacancy of a Member of the KPSC. The Chief Minister of the State of Karnataka may like to nominate one out of the panel of two names suggested by the Search Committee for appointment as a Member by Governor of the State of Karnataka. Invariably, the senior-most Member may be appointed as the Chairman of the KPSC unless the senior-most Member is considered unsuitable for such appointment by the Government.
(66) The Search Committee may finalize the list of two names to be sent to the Chief Minister at least two months in advance of the likely date of occurrence of the vacancy of a Member/Chairman KPSC so that the appointment is announced well in advance.
288. It is pertinent to point out that Hota Committee is constituted by the Government because the mistakes committed in 1998, 1999, 2004 selections were repeated in 2011. It only shows the State Government was unable to plug the mischief, probably because they did not have the requisite expertise. Now that an expert body is constituted, who have given their report after consulting all the stake holders, the Government should accept the recommendation and implement the same. Therefore, without any delay the Rules have to be amended comprehensively giving effect to all the recommendation. Piecemeal amendment to rules as is done now would not serve the purpose. The mischief may reoccur in the future selection. Therefore, we hope in order to have good governance in the State, the Government would act promptly and see that, in future, selections are done in accordance with the goal set by the Constitution of India.
289. In the light of the aforesaid discussion on all points which arose for consideration in this Public Interest Litigation, We make the following:
ORDER (1) The procedure followed by the KPSC in preparing the list of candidates who are admitted to the written examination and the 254 OA No. 170/00961/2019 & Ors/CAT/BANGALORE list of candidates who are called for the personality test in 1998, 1999 and 2004 for the post of Gazetted Probationers (Group A and B Posts) is unconstitutional, contrary to the Rules and the Government Orders.
However, on that ground, the entire selection of 1998, 1999 and 2004 batch selection cannot be set aside.
Segregation of tainted/ineligible candidates is possible. The KPSC shall undertake the following exercise to segregate the ineligible candidates:
(a) The KPSC shall prepare a separate list of candidates belonging to the reserved category, who took the written examination, showing the marks secured in the written examination in the order of merit.
(b) From out of the names in the said list prepared, prepare a list of candidates eligible to be called for the personality test in the ratio of 1:5, i.e., five times the number of candidates as there are vacancies reserved for each of the category out of reserved posts belonging to Scheduled Caste, Scheduled Tribes and other backward classes.
(c) If the names of the selected candidates belonging to the reserved category finds a place in this list, whether as General Merit candidates or Reserved candidates, then their appointment is valid and it shall not be disturbed.
(d) If the names of the selected candidates do not find a place in this list, then their appointment is void and the same is hereby set aside.
(e) The KPSC shall undertake this exercise within two months from the date of receipt of the copy of this order and forward the same to the Government for passing appropriate orders.
(2) The revised list prepared by the KPSC in terms of the order dated 11th October 2002 in W.P.No. 12548-589/2002 which is affirmed by the Apex Court in Civil Appeal No.6172- 6222/2005 vide Order dated 6th October, 2005, which was submitted to the Court by the KPSC in a sealed cover, which was web-hosted by virtue of the order dated 11.11.2014 of this Court, is upheld. The KPSC and the State Government shall give effect to the said list.
(3) The KPSC shall take into consideration the 91 answer scripts which forms part of excess of 10% of the revalued paper and give effect to the order of the High Court dated 11th October 2002 in 255 OA No. 170/00961/2019 & Ors/CAT/BANGALORE W.P.No. 12548-589/2002 and the order of the Apex Court in Civil Appeal No.6172-6222/2005 vide Order dated 6th October, 2005.
(4) The selection of candidates for the post of 1999 Gazetted Probationers (Group A and B posts) is not liable to be set aside on the ground of destruction of answer scripts.
(5) In respect of the matters which are adjudicated and decided in this writ petition, this Public Interest Litigation is maintainable.
(6) All other issues/disputes which are personal in character are relegated to be decided by the Karnataka Administrative Tribunal, where the applications of the petitioners are pending consideration. It is open to the petitioners to amend the said application to include those issues which are not decided in this Public Interest Litigation. Similarly, it is open to the respondents to agitate their rights/put forth their defence in the pending proceedings before the Karnataka Administrative Tribunal, if they are made parties. Otherwise, they can also initiate independent proceedings for protecting their rights or agitate their rights.
(7) The KPSC and the State Government shall take steps to frame Rules or amend the existing Rules giving effect to the recommendations of Hota Committee, at the earliest. Till such Rules are framed or amended, the KPSC and the State Government shall follow the recommendations of the Hota Committee as set out in paragraphs 46, 47, 50, 51, 53, 54, 56, 58, 65 and 66 of the report, which are clearly set out in paragraph 287 of this Judgment.
(8) The High Court Registry is directed to keep the reports submitted by the members of the High Court Committee constituted by this Court in this proceedings, in safe custody. If and when any request is made from the Karnataka Administrative Tribunal to transmit the said records, the same shall be sent to the Karnataka Administrative Tribunal."
50. The applicant exposes a grievance that the webhost list in pursuance of the direction of the Hon'ble Court dated 11.11.2014 was made final and had taken away the liberty of judicial review which a Government servant could have otherwise got. But then in direction No.6, it is stipulated that all other disputes which are personal in character are relegated to be decided by KAT. But they would say 256 OA No. 170/00961/2019 & Ors/CAT/BANGALORE that as candidates who would be like the applicant, no right of judicial review is given meaning thereby that the methodology of interpretation of direction No.6 has now to be undertaken.
51. The applicant files SLP No 28245 of 2016 and the Hon'ble Apex Court upheld the right of the applicant to be promoted to the Indian Administrative Service subject to result of further adjudication. The applicant submits that this fact clinch the issue of maintainability as by that time the applicant was in the zone of consideration for being promoted to the Indian Administrative Service and Hon'ble Supreme Court had taken due regard to this and held that the right of the applicant for further promotion depends on further adjudication, but still allows the promotion would take place.
52. Following this, on 23.02.2018, the order of the Hon'ble Supreme Court was implemented by the State Government by promoting the applicant to the Indian Administrative Service. But during these interregnum, there had been a state of other litigations also which indicates the jurisdiction of the Central Administrative Tribunal (CAT).
Several among the applicants have filed matters before the CAT for clearing obstructions in their way to be promoted into the Indian Administrative Service and this, in turn, was challenged in the Hon'ble High Court of Karnataka. There was several other sets of persons and in none of these proceedings neither any of the applicants or 257 OA No. 170/00961/2019 & Ors/CAT/BANGALORE respondents or adjudicating authorities have taken a view that the jurisdiction of the CAT in deciding the case of such persons who are aspirants to Indian Administrative Service are to be excluded. But this ground of the applicant we will examine in little more detail at a later stage. But on 22.08.2019, the 3rd respondent KPSC while seeking to implement the direction No. 3 with regard to 91 answer scripts and claimed to have implemented the same has issued revised gazette notification altogether altering earlier gazette notification directing the reversion of the applicant to the post of Assistant Commissioner of Commercial Taxes. This the applicant alleges is a result of the act of the 3rd respondent KPSC seeking to implement the illustration and not re-evaluation of complete answer scripts.
53. The applicant alleges that during the course of litigation, the KPSC had filed a memo to the Hon'ble High Court with regard to a new select list suo motu and on 11.11.2014, the Hon'ble High Court directed webhosting of redrawn list of 94 candidates and on 12.11.1014, the KPSC webhosted a revised final list as per order of the Hon'ble High Court on 11.11.2014. But this was stayed by the Hon'ble Supreme Court on 21.11.2014. But then, on hearing on merit Hon'ble Supreme Court directed that the petitioners therein will have to file objections before the Hon'ble High Court and disposed of the Special Leave Petition. They would say that on 7.4.2016, the applicant had filed additional statement of objections raising an issue of 258 OA No. 170/00961/2019 & Ors/CAT/BANGALORE maintainability, limitation, bona fides of the Writ Petitioners, jurisdiction and other points on merits. Few of the respondents filed objections on the fact finding Committee report also. But vide order dated 21.06.2016, the Hon'ble High Court held:
(1) The procedure followed by the KPSC in preparing the list of candidates who are admitted to the written examination and list of candidates who are called for personality test in 1998, 1999 and 2004 for the post of Gazetted Probationers (Group A and B Posts) is unconstitutional, contrary to the Rules and the Government Orders.
The Hon'ble High Court went on to hold that however, on that ground , the entire selection of 1998, 1999 and 2004 batch selection cannot be set aside.
54. The applicants now lament that this has breached the principle of universalities in assessing the competitive merit as a pick and choose policy was adopted by the KPSC which somehow favoured by the Hon'ble High Court and they would say that this has created vitiating atmosphere . We will explain this issue a little later. They would say that the Hon'ble High Court issued the following directions :
(a) The KPSC shall prepare a separate list of candidates belonging to the reserved category, who took the written examination, showing the marks secured in the written examination in the order of merit.
(b) From out of the names in he said list prepared, prepare a list of candidates eligible to be called for the personality test in the ratio of 1:5, i.e. five times of the number of candidates as there are vacancies reserved for each of the category out of reserved posts belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes.
259 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
(c) If the names of the selected candidates belonging to the reserved category find a place in this list, whether as General Merit candidates or Reserved candidates, then their appointment is valid and it shall not be disturbed.
(d) If the names of the selected candidates do not find a place in this list, then their appointment is void and the same is hereby set aside.
(e) The KPSC shall undertake this exercise within two months from the date of receipt of the copy of this order and forward the same to the Government for passing appropriate orders.
55. Then the Hon'ble High Court went on to say that all other issues/disputes which are personal in character are relegated to be decided by the KAT, where the applications of the petitioners are pending consideration. It is open to the petitioners to amend the said applications to include those issues which are not decided in this Public Interest Litigation. Similarly, it is open to the respondents to agitate their rights/put forth their defence in the pending proceedings before the KAT, if they are made parties. Otherwise, they can also initiate independent proceedings for protecting their rights or agitate their rights.
56. The applicant would say that in the interregnum, some other events happened which had an affect on the career progression of the applicant. In terms of profess outstanding merit the applicant was put in the zone of consideration for appointment to the cadre of Indian Administrative Service and thereafter were promoted as an IAS officer. They would say that not only their presence in the IAS, but even their progression into the Indian Administrative Service is to be 260 OA No. 170/00961/2019 & Ors/CAT/BANGALORE decided by the CAT. They would say at that point at which this judgement of the Hon'ble High Court was pronounced, the applicants were in the ambit of KAT They would say that both the CAT and the KAT was formed by the same statute, but the distinction was made between the employees belonging to the State Government and the employees of the Union Government. But it is also stipulated that the employees would progress into the union list would also approach the CAT. But in all other aspects, both these Tribunals exercise the same jurisdiction and work in the same modality prescribed under law and is governed by the same statute.
57. The applicant submits that here no role to play in the selection conducted by the KPSC as there was no allegation of any malpractice has been made against them. Hon'ble High Court also had not found any misdeed in connection with it. He would thus say that his case is covered by the judgement of Hon'ble Apex Court, even if it is to be assumed that the KPSC has committed a mistake in appointing him following the directions given by the Hon'ble Apex Court earlier and as stated earlier. He relies on the judgement in the case of Dr. M. Mudhol v. S.D Halegkar reported in (1993) 3 SCC 591, from which we quote:
"6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years 261 OA No. 170/00961/2019 & Ors/CAT/BANGALORE now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, inspite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequities to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same.
7. Whatever may be the reasons which were responsible for the non- discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the Court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the Court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ.
8. However, we must make it clear that in the present case the 2nd respondent, Director of Education had committed a clear error of law in approving the academic qualifications of the 1st respondent when he was not so qualified. As pointed out above, the interpretation placed by him and the other respondents on the requisite educational qualifications was not correct and the appointments made on the basis of such misinterpretation are liable to be quashed as being illegal. Let this be noted for future guidance."
58. He would say that even if there is any mistake on the part of the KPSC and he claims that there may not be any mistake on the part of the KPSC in passing of an order in 2006 as it was a result of a detailed order issued by the Hon'ble High Court of Karnataka which was later upheld by Hon'ble Supreme Court in the Civil Appeal, the 262 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Review Petition and the Curative Petition. After 4 consecutive legal examinations it cannot be said that all these authorities have committed a mistake and, therefore, the KPSC when they undertook the subsequent exercise must be said to have committed a grave error particularly when the Hon'ble High Court had not entered any finding as to any culpability on the part of the applicant. By finding general mistake in the methodology adopted by the selective authority and without any specific input as to the complicity of the concerned person in it, he cannot be put to prejudice, submits the applicant.
59. But he continued to say that even if it is to be assumed that there is an error on the part of the KPSC, the Hon'ble Supreme Court in the above case clearly indicated that since no juncture can be attributed to him he cannot be put to prejudice. The applicant relies on the Apex Court judgement in Rajesh Kumar v.
State of Bihar reported in (2013) 4 SCC 690 which we quote :-
"21. There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter-se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re- evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re- evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list."
263 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
60. Therefore, since no malpractice is attributed to the applicant he would say that he is unable to understand how he can be prejudiced.
He says that if the methodology adopted by the KPSC is at fault, the best thing that could have been done is to change the process and not to kill an innocent individual.
61. The applicant also relies on a case of Vikas Pratap Singh v.
State of Chattisgarhreported in (2013) 14 SCC 494, which we quote :
" 26. In Buddhi Nath Chaudhary and Ors. v. Akhil Kumar and Ors., (2001) 2 SCR 18, even though the appointments were held to be improper, this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained experience and observed:
"We have extended equitable considerations to such selected candidates who have worked on the posts for a long period."
(See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar and Ors., (1993) II LLJ 1159 SC and Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors., (2009) 1 SCC 768)
27. Admittedly, in the instant case the error committed by the respondent-Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service.
28. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent- State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous 264 OA No. 170/00961/2019 & Ors/CAT/BANGALORE evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list.
29. Accordingly, we direct the respondent-State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.
30. We clarify that their appointment shall for all intents and purpose be fresh appointment which would not entitle the appellants to any back wages, seniority or any other benefit based on their earlier appointment."
62. The applicant alleges and contends that the report of the fact finding Committee was only by way of an illustration as they expressed their inability to look through the thousands of answer scripts and based on illustrative procedures no action can be takenagainst anyone and particularly because no juncture is made against any of them of having committed any mis-events.
63. The impleading respondents would say that he was previously working as Joint Controller of State Accounts and awaiting for a posting as Assistant Commissioner. He says that he and others with him were required to be selected as Gazetted Probationers Group-A Junior scale. He says that KPSC and Government of Karnataka were responsible for the said predicament. He further says that the selection was done by the KPSC in pursuance of the notifications issued in 1999 and 2000 were subject matter of series of litigation.
Apparently the aggrieved persons filed applications exposing 265 OA No. 170/00961/2019 & Ors/CAT/BANGALORE illegalities committed by the KPSC and the orders issued by the KAT came to be modified by the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court had upheld an earlier order of Hon'ble Karnataka High Court. Thereafter, Public Interest Litigation was filed in Hon'ble High Court of Karnataka in Writ Petition No. 27674/2012 which came to be disposed of by an order dated 21.6.2016. The impleaded respondents would say that several illegalities were committed by the KPSC. He would say that in SLP (Civil) No. 29245/2016, by an order dated 27.11.2017, the Hon'ble Apex Court observed that any promotions/appointments made shall be subject to the outcome of the SLP. He would say that one among the impleading respondents herein had filed O.A. No. 87/2017. But when I.A was filed before the Hon'ble Apex Court , the OA was withdrawn with liberty to agitate the issue. He would also say that the Contempt Petition filed by Srinivas and Others in C.C.C No.1660 of 2018 were pending before the Hon'ble High Court. He would also say that some other Contempt Petitions were also said to be filed by some other persons also. They would say that the notification of promotion issued to the applicants and others need to be withdrawn by the Government of Karnataka under Rule 8(1) of the 1954 Rules read with Regulation 9(1) of Regulations 1955. He would say that he has produced a list of persons who have filed OAs before CAT., which we quote :
266 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
Sl.No. O.A. No. Name of the applicant
1 170/437/2019 H. Basavarajendra
2 170/438/2019 Shivanand Kapashi
3 170/439/2019 Kavitha S. Mannikeri
4 170/440/2019 H.N. Gopal Krishna
5 170/441/2019 C.V. Vrushabendramurthy
7 170/448/2019 Karee Gowda
8 170/449/2019 P. Vasanth Kumar
8 170/961/2019 N.Shivashankara
9. 170/962/2019 Meena Nagaraj
10 170/963/2019 R.S. Peddappaiah
11. 170/964/2019 Akram Pasha
64. He says that having regard to certain orders passed by the
Hon'ble High Court, the above OAs are not maintainable. He produces Annexure R-1 order in CCC No. 90/2019 which we quote.
"BVNJ & HTNPJ: C.C.C. No. 90/2019
16.04.2019 C/w.CCC Nos. 1660/2018
& 1758-1761/2018, 673-
676/2019, 677/2019, 697/
2019 & 755/2019 AND
688/2019
ORDER
Learned Advocate General for the State has submitted a counter-affidavit on behalf of accused Nos. 1 and 2. Counter- affidavit has been filed by Sri Anjum Parwez, Principal Secretary to Government, Department of Personnel and Administrative Reforms, Vidhana Soudha, Bengaluru. The said counter-affidavit contains three Annexures. Annexure R1 comprises of the list of 115 officers whose department (service) has been changed as per the web-hosted list (revised list) as per the marks obtained in the examination. Annexure R2 consists of the interim orders dated 15.04.2019 passed by the Central Administrative Tribunal. Annexure R3 is the Model Code of Conduct issued by the office of the Chief Electoral officer, Bengaluru.
267 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Learned Advocate General submits that pursuant to the directions issued by this Court, direction No.2 has been given effect to. Out of 140 officers, 25 officers have been transferred from Group A to Group A posts in different departments; 17 persons have been shifted from Group A posts to Group B posts; 17 persons have been shifted from Group B posts to Group A posts and 81 persons have been transferred from Group B posts to Group B posts in different departments. List is prepared only in respect of 115 officers out of 140 officers as certain other officers did not join service or they left the service or are since deceased, as the case may be. He emphasizes that list of 115 officers is prepared as per the directions issued by this Court.
Learned Advocate General has also brought to our notice the fact that five officers at Sl.Nos. 47, 56, 57, 58, 59 and 62 have approached the Central Administrative Tribunal (CAT) which has issued interim stay of Annexure-A5 produced by them before the Tribunal. Annexure A5 is the Gazette Notification dated 25.01.2019 published by the Karnataka Public Service Commission.
Learned Advocate General has further brought to our notice that in view of the ensuing Lok-sabha elections in the State, 46 persons are on election duty and it is possible that there are other officers who are also on election duty in various districts and that having regard to the fact that they are posted on election duty, presently it may not be possible for them to be shifted out of their post. It is also stated at the Bar that voting in the State would end on 23.04.2019.
The counter-affidavit filed by the Principal Secretary to Government, Department of Personnel and Administrative Reforms, Bengaluru is taken on record along with the Annexures.
Learned Senior Counsel appearing for some of the complainants submits that the complainants also endorse the fact that some of the officers may be on election duty. However, they would verify the list and revert to this Court.
It is also brought to our notice that those officers who have approached the Central Administrative Tribunal have done so contrary to the directions issued by this Court as well as by the 268 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Honble Supreme Court as the Honble Supreme Court had categorically stated that any promotion or appointment made would be subject to the Special Leave Petitions filed by them and the Special Leave Petitions filed by them have been dismissed. It is contended that despite the dismissal of the SLPs they have approached the Central Administrative Tribunal which has passed the interim orders and action may be initiated against them.
By way of response, learned Advocate General submits that having regard to the orders passed by this Court and the Honble Supreme Court, their names have been included in the list of 115 officers which is at Annexure R1.
As far as the officers at Sl.Nos. 47, 56, 57, 58, 59 and 62 are concerned, since the State has included their names in terms of the orders passed by this Court, as well as having regard to the dismissal of their SLPs. by the Honble Supreme Court, the inclusion of their names in Annexure R1 list is also taken on record inspite of the interim order of CAT and the same must be given effect to.
We, however, wonder, as to how these officers could have approached the Central Administrative Tribunal when the matters are pending compliance in these proceedings and they were also parties in the earlier proceedings as well as their SLPs. have been dismissed by the Honble Supreme Court. Prima facie, we are of the view that their applications before CAT are not maintainable. As far as any further action to be taken as against them is concerned, it is reserved for the time being and shall be initiated at an appropriate time, if the need so arises. They shall be bound by the list prepared by the accused as per Anmnexure- R1 and as per the postings given to them.
ORDER IN CCC No.677/2019Learned counsel for the complainant submits that the complaint was selected as Assistant Chief Auditor and after serving for one year, resigned from the said post. Even then, the contempt petition has been filed.
269 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Prima facie, when he is no longer in the service of the State, question that arises is as to how the contempt petition itself is maintainable.
Learned Advocate General responds by submitting that contempt petition is not maintainable and ought to be dismissed.
In order to pass orders in this case, list on 25.04.2019.
ORDER IN CCC No.668/2019Learned High Court Government Pleader submits that he has instructions to appear for accused Nos. 2 and 3. Sri Reuben Jacob, learned counsel for Karnataka Public Service Commission submits that he has instructions to appear for accused No.1.
Office to show their names as the counsel for the respective parties.
Office to list this matter along with CCC Nos. 380-381/2019 and 742/2019 & 770-773/2019.
Since learned Senior Counsel appearing for some of the complainants seeks a short accommodation to verify the list and revert, since, by then, the poll in the State would have concluded, list on 25.04.2019.
BVNJ & HTNPJ: C.C.C. No. 90/2019
24.04.2019 C/w.CCC Nos. 1660/2018
& 1758-1761/2018, 673-
676/2019, 697/2019, &
755/2019, 668/2019, 380
381/2019 AND 742/2019
ORDER
ORDER IN CCC No.90/2019
On the last date of hearing, learned Advocate General had filed counter-affidavit of the Principal Secretary, Department of Personnel and Administrative Reforms, Bengaluru, enclosing a list comprising of names of 115 officers (Annexure-R1). In response, learned Senior Counsel appearing for some of the 270 OA No. 170/00961/2019 & Ors/CAT/BANGALORE complainants sought time to verify the same and make submissions.
Today, learned Senior Counsel for some of the complainants submits that they have verified the list and that the list would have to be given effect to. In other words, the process of posting of those officers must be taken to its logical conclusion.
On perusal of the list, we note that the officers have been allotted specific departments based on their merit, in the web- hosted list. It is also to be noted, as emphasized by learned Advocate General, that some of the officers are on election duty.
In the circumstances, accused No.2 to web-host Annexure R1 (revised list) on their official website on or before 4.5.2019. On such web-hosting of the list, the postings to the said officers shall also be given in their respective places having regard to the allotment made to the various departments. In case postings are not given, the officers named in the said list could approach the concerned Departments. It is unnecessary to observe that once the officers at Annexure R1 approach the respective departments, postings shall be given to them and they shall join their respective departments in accordance with joining rules.
As far as those officers who are not on election duty, they could approach the respective department heads to which they have been allotted and seek postings and join duty as per rules. As far as the officers who are on election duty they shall take charge of their respective posts immediately after 23.05.2019 as, till then, the election process is on. We have also borne in mind the fact that many of such officers may be on election duty. In the meanwhile, if postings are not given to them, they could contact their respective departments to which they may have been transferred.
It is needless to observe that the aforesaid directions are being issued for complete implementation of Annexure-R1 prepared by the accused and while doing so we are also mindful of the fact that the aforesaid directions are being issued in these proceedings as further steps are yet to be taken pursuant to submission of Annexure-R1 - List.
ORDER ON I.A.No.2/2019 IN CCC No.90/2019 271 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Smt.Khazi Nafeesa has filed an application seeking impleadment as a party - respondent in this petition (CCC No.90/2019). In this petition, she has appeared in person and she submits that she was respondent in the Public Interest Litigation and that she seeks impleadment as a respondent in this proceeding. She has also stated that she had filed the writ petition before this Court (W.P.No.13296/2019), which was disposed off on 05.04.2019, granting liberty to her to approach the Karnataka State Administrative Tribunal. She also states, she has also filed an application before the Tribunal on 11.04.2019 and the same is pending consideration. She submits that her presence in this mater is necessary and therefore she may be impleaded as a respondent.
Having heard the impleading applicant, at the outset, it is observed that this proceeding is a Contempt of Court Proceeding filed by certain complainants seeking implementation of the directions issued by a Division Bench of this Court on 21.06.2016, which have been confirmed by the Honble Supreme Court in the Special Leave Petitions, which have been ultimately dismissed. The scope and ambit of these proceedings is only for the implementation of the directions issued by a Coordinate Bench of this Court, which have been sustained by the Honble Supreme Court. The respondent in these proceedings are the accused who have been arrayed as such on account of the non- implementation of the directions of this Court. The impleading applicant is not an accused and she is in fact a party (respondent in the Public Interest Litigation). She cannot seek impleadment in these proceedings so as to ventilate her grievances.
Hence, her application (I.A.No.2/2019) is dismissed.
ORDER IN CCC Nos.380-381/2019 Sri Reuben Jacob, appearing for accused No.2 submits that direction No.1 has been complied with and that the compliance report shall be filed by the next date of hearing.
Submission is placed on record.
ORDER IN CCC No.668/2019We have heard learned counsel for the complainant and learned counsel for accused No.1 and learned High Court 272 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Government Pleader for accused Nos. 2 and 3. This contempt petition pertains to direction No.3.
Sri Reuben Jacob submitted certain pros and cons in the implementation of direction No.3. However, we do not find any concrete steps having been taken to implement the said direction.
In the circumstances, accused No.1 to implement the said direction and report by the next date of hearing. List along with CCC No.885/2019 on 10.06.2019."
65. He would say that in the Contempt Petitions, Hon'ble High Court expressed a view that the OAs filed before the Tribunal are not maintainable.
66. But then, he admits that since the original complainant was not eligible to file Contempt Application, this Contempt Application may not have been maintainable. He produces a table in which the impleaded respondents names were accommodated, which we quote:
Sl. Name of the Their position/ List List dated No. Candidate cadre, Sl.No. dated 22.8.2019 and Page No. Jan., in the list dated 2019 28.2.2006 1 Ramappa Hatti AC SAD-44 AC-20 AC-20 2 Veerabhadra ACCT-01 AC-06 AC-06 Hanchinal
3. Yashmin Begum ACCT-08 ACCT- AC-11 Wallikar 09 4 Susheelamma N AC SAD-30 AC-18 AC-18 5 Praveen Tahashikldar AC-14 AC-14 Bagewadi 6 Seema Naik B ACCT-23 ACCT- AC-19 23 7 H.R. Shivakumar ACCT-3 AC-3 AC-3 8 B.V. Roopashree AC SAD-11 AC SAD AC-8 273 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 9 Manjunatha AC SAD-9 AC-13 AC-13 Swamy G.N He would say that all the applicants have been allotted some other cadres and they will now cease to be the Assistant Commissioners from the date of their initial appointment itself. He would say that therefore, they are challenging the benefit wrongly granted to the applicants and earlier position would have been taken into account.
67. Therefore, we have asked the learned counsel as to whether they are preferring any individual infraction against any of the applicant. He graciously admits that there had no allegation of individual infraction or evidence of allegation by any of the applicant.
But he would say that the methodology adopted by the KPSC was responsible for the predicament and he would say that in paragraph 3 of their reply itself they have stated that it was KPSC who is responsible for all these issues. But the KPSC maintained that from 1975 onwards to 2005, they were following the very same procedure and no complaint was raised on all these years. So suddenly what had happened to raise this issue?
68. The applicant files rejoinder and points out that even in the second re-evaluation and third re-evaluation also serious mistakes were committed by the KPSC and many of the applicants have been given different level of marks including more marks in second re-
274 OA No. 170/00961/2019 & Ors/CAT/BANGALORE evaluation. They wonder then if they secured more marks in second re-evaluation how can they be reverted? These facts are not disputed by any of the respondents including the impleading respondents. They would only say that a mistake has been done by the KPSC and even the impleading respondents would say that the respondents have no case that there are any individual misfeasance by any of the applicants.
69. Therefore, can anyone of them be penalized for no fault of theirs? If at all there is no fault, KPSC sternly maintain that they were just following the rules and the pattern of UPSC.
70. We, therefore, asked the KPSC to explain this anomaly as some of these applicants were held to have secured more marks on re-
evaluation , yet they were reverted. Other than the stock reply that they have actually filed an explanation of the matters in the Hon'ble High Court in the 2nd instance explaining that they filed a memo by way of an illustration only, but somehow the Hon'ble High Court was not taken note of it that this was meant only for illustration, passed subsequent orders. But now on the compulsion in the contempt proceedings, they have to implement the illustration process, which is meant only for illustration but nothing else. They would say that they 275 OA No. 170/00961/2019 & Ors/CAT/BANGALORE have completed the exercise of moderation and scaling and announced the final selection list in April, 2006. But again some unsuccessful candidates filed a petition in Writ Petition No. 27674/2012 before the Hon'ble Court by making allegations against 382 candidates. They say that this order was passed by the Hon'ble High Court. "The revised list prepared by the KPSC in terms of the order dated 11th October, 2002 in WP No. 12548-5898/2002 which is affirmed by the Apex Court in Civil Appeal No. 6172-6222/2005 vide order dated 6th October, 2005, which was submitted to the Court by the KPSC in a sealed cover, which was webhosted by virtue of the order dated 11.11.2014 of this Court, is upheld. The KPSC and the State Government shall give effect to the said list." The KPSC would thus say that a similar mistake might have occurred here since they have actually filed a reply with an affidavit of the then Secretary, Shri Harish. But somehow it was not taken into consideration and order dated 11.11.2014 was issued. They would say that they have acted only as per the directions issued by the Hon'ble High Court of Karnataka in WP No. 27674/2012 and accordingly webhosted the revised list as per the interim order dated 11.11.2014 and the same was given effect to as per the order of the Hon'ble High Court dated 21.06.2016 vide notification dated 25.01.2019. They would say that there may be difficulty in quashing the Notification No. PSC/E(1)377/18-19 dated 18-19 dated 22.08.2019, as this notification 276 OA No. 170/00961/2019 & Ors/CAT/BANGALORE was issued by the respondent in compliance of the third direction passed by the Division Bench of Hon'ble High Court of Karnataka in WP No. 27674/2012 dated 21.06.2016.
71. Regarding the difference in marks attributed in several candidates, the KPSC would submit that they have no further matters to present before the Court as relating to the methodology adopted by it. They have in fact filed an explanatory affidavit before the Hon'ble Court after the illustrative memo was filed by them. But the illustrative memo was mistaken as a reflection of real life situation.
72. The respondents 5 to 12 have filed one more reply as they would say that they have suffered by the action of the KPSC and the Government and the applicant was the beneficiary of the arbitrariness exercised by the KPSC They would say that Shri Veerabhadra Hanchinal who is the one among the above respondents was awarded low marks in the interview and he got only 70 marks despite he being ranked No.2 in the written test. They would also say that the communal reservation and the methodology of reservation adopted by the KPSC was incorrect. They say that several candidates took preliminary examination by claiming different categories to which they belong. The KPSC was required to prepare a list on the basis of the reservations claimed by them and also having regard to the marks scored by the said candidates. As per the ratio prescribed under the 277 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Rules to respective categories they were required to be allowed to write the main examination. Thereafter, in the respective categories as claimed by them, they were required to be allowed to face the personality test. This procedure has been violated and the Hon'ble High Court has come down heavily on the KPSC. Directions have been issued as could be seen from Annexure A-1, and direction Nos.
2 and 3 are required to be complied with. They could not explain the apparent conflict in separating direction No. 2 and 3.
73. The impleading respondents would strenuously contend that certain irregularities were committed by the KPSC and it resulted in some of the candidates making a report to the Government which led to the issue. There was an investigation by the corps of detectives but they submit that the corps of detectives did not do their work and did not find anything wrong against 382 candidates. They say that a fact finding Committee was also constituted and because of voluminous nature of issues they could only examine some matters at random even though their advocates were also in it. On the basis of the random examination only some views were made clear by the fact finding Committee. Even though the Hon'ble High Court treated the lists as tentative but issued a direction to the government and KPSC to comply with the same as could be seen from the order quoted above.
They would say that when the SLP was dismissed and all the benefits which was derived earlier should have been noted as having been 278 OA No. 170/00961/2019 & Ors/CAT/BANGALORE washed away. They admitted that they have filed OA No. 87/2017 in relation to this matter in the CAT as it appears to them at that point of time that the applicants were eligible for promotion to Indian Administrative Service.
They have withdrawn it with liberty as the matters were being heard by the Hon'ble Supreme Court at that point of time also in relation to the similar matters. They would say that clearly the involvement of the Karnataka Government is suspicious as the notification dated 27.10.2010 was issued within a short span of four days. They would say that over all these years the complicity of the Karnataka Government and the KPSC is apparent and clear. They would not explain whether there was any complicity from 1975 to 1997.
74. They would say that the OA is not maintainable even in facts or in law. The orders impugned in the said OAs are select lists prepared dated 25.01.2019 and 22.08.2019 and therefore, the remedy against the said select list lies before the KAT. Therefore, we posed a question whether the applicants are eligible to apply to the KAT. The respondents would say that on the interpretation of the Hon'ble High Court order it can be said that the applicant can also file a case before KAT but the law as it stands now stipulates that since now they are IAS 279 OA No. 170/00961/2019 & Ors/CAT/BANGALORE officers even now they can only approach the CAT. On being a question posed to the learned counsel for the impleading respondents that as to why they have filed the OA No. 87/2017, they would only say that in any case it has been withdrawn with liberty to file it again as similar matters were being taken up in the Hon'ble Apex Court.
75. The impleading respondents would say that despite individual discrepancies have been pointed out and even it is manifestly so since the Hon'ble High Court of Karnataka had adopted and approved the lists given by the KPSC and webhosted. They have actually given an explanationary illustration. Later on, the impleading respondents would say that since the order of the Hon'ble High Court has been upheld by the Hon'ble Supreme Court the said order cannot be set at naught. On being a question posed to the learned counsel for the applicant as to lack of harmony between the first and second orders which virtually nullifies the first order, pointed out that first order has been upheld by the Hon'ble Supreme Court in the Special Appeal and then by dismissal of the Review Application and by dismissal of Curative Petition have concretized it. When we sought to know how the Government could have taken before the Hon'ble High Court once again in the PIL a matter which had already attained finality, the impleading respondents' answer was that they have acted in pursuance of the order of the Hon'ble High Court and they are in no 280 OA No. 170/00961/2019 & Ors/CAT/BANGALORE way required to answer such question. But the fact remains that this conflict remains unsettled.
76. They would further say that what has been done by the KPSC is a matter of record. They would say that when a plea raised by the applicant and his companions were rejected, it was not open to them to approach the Tribunal to reopen the issue. Learned counsel for the applicant posed a question to Shri Narayan Bhat that whether the reopening of an issue in a PIL as against the order passed by the Hon'ble Supreme Court in compliance of the first order of the Hon'ble High Court of Karnataka is correct and whether it can be reopened again? The reply of Shri Narayan Bhat was that he is not bound to answer to such question. They would say that in paragraph 20 of the reply they have stated that it is not open to the CAT to adjudicate on the same except as provided in the order produced at Annexure-A1. The learned counsel for the applicant points out that the order at that point of time pertains to the officers of the Karnataka Administrative Service and when factual circumstances changed and as at present they were Indian Administrative Service officers they can only go to the CAT and not other Tribunals. To this also, no answer could be obtained but they would say that plea of the applicant is barred by res judicata and concurrence of the Government is not required as the SLP was dismissed. Thereupon learned counsel for the applicant 281 OA No. 170/00961/2019 & Ors/CAT/BANGALORE again posed a question as there was no individual infraction available against the applicant as re-evaluations was found to be done incorrectly, as admitted by the KPSC even now, the reply of the respondents is that despite any such things happening, the direction No. 6 must be excluded from the consideration since a general principle, as available, has already been declared by the Hon'ble High Court in the PIL. In the interim order dated 11.11.2014 when infraction has been pointed out, that these are, notwithstanding the direction contained in the directions as they cannot question the adjudicatory process of the Hon'ble High Court even if factually it is to be found otherwise. But then, it is submitted that in that case it can only be treated as a preliminary decree, which cannot be executed.
77. The impleading respondents would say by referring to Annexure-R4 that there seems to be a great disparity between the marks awarded to different persons in the written examination and the interview. They would say that Shri H. Basavarajendra, a general merit candidate, scored 1002 marks in the written examination and in interview he got 145 marks totalling 1147 marks while in comparison, Shri Ramappa Hatti, another general merit candidate, scored 807 marks in the written examination and in interview he has secured 130 marks thus totalling 937 marks.
Therefore, we posed a question to the respondents as to how he 282 OA No. 170/00961/2019 & Ors/CAT/BANGALORE will harmonize the marks obtained. Shri H. Basavarajendra is now to be reverted after having obtained 1147 marks and Shri Ramappa Hatti to be elevated after having obtained 937 marks especially when it is a result of the revised list issued on 22.08.2019 by the KPSC, no answer could be secured on this question. It is pointed out in Annexure-R4 produced by the impleading respondents that Shri Shivanand Kapashi, 3B Category, secured 884 in the written examination and 150 marks in interview totalling 1034 marks. Smt Kavitha S. Mannikeri, 2A Category, secured 890 marks in the written examination and 130 marks in interview thus totalling 1020 marks whereas Shri Veerabhadra Hanchinal, a general merit candidate, scored 1105 marks in the written examination and 70 marks in the interview thus totalling 1175 marks. Shri H. N. Gopalkrishna secured 958 marks in the written examination and 155 marks in the interview thus totalling 1113 marks whereas Smt Yasmin Begum Walikar, another general merit candidate, has secured 1013 marks in the written examination and 120 marks in the interview totalling 1133 marks and is now being posted as Assistant Commissioner Group A whereas Shri Gopalkrishna was now shown as Group B category officer. In relation to Shri Akram Pasha and two other candidates, we have already seen that the marks shown is 283 OA No. 170/00961/2019 & Ors/CAT/BANGALORE incorrect. None of the respondents made an effort to answer to this question.
78. The applicant would submit that the matter is covered by the judgment of the Hon'ble Supreme Court in Rajiv Kumar and Another Vs. Hemaraj Singh Chauhan And Others reported in (2010) 4 SCC
554. We quote the relevant paragraphs at 8, 10 and 11.
8. However, while answering the objection on their locus standi, the appellants referred to the decision of the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and others - (1997) 3 SCC 261 and in particular to paragraph 99, page 311 at placitum f & g of the report and contended that in view of the law declared in Chandra Kumar (supra), they can come before the High Court and raise their grievances against the judgment of C.A.T. as their interests have been affected by that judgment even though they were not parties to the proceedings in which the said judgment was rendered.
10. The Constitution Bench in Chandra Kumar (supra) held that the power of the High Court under Articles 226 and 227 of the Constitution and of this Court under Article 32 of the Constitution is a part of the basic structure of our Constitution (See paragraphs 78 & 79, pages 301 and 302 of the report). The Constitution Bench also held that various Tribunals created under Articles 323-A and 323-B of the Constitution, will function as Court of first instance and are subject to the power of judicial review of the High Court under Articles 226 and 227 of the Constitution. The Constitution Bench also held that these Tribunals are empowered even to deal with constitutional questions and can also examine the vires of statutory legislation, except the vires of the legislation which creates the particular Tribunal.
11. In paragraph 93, at page 309 of the report, the Constitution Bench specifically held:
"...We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted...." (emphasis added) 284 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
79. They would say that the matter is also covered by the judgment of Hon'ble Supreme Court in Prithawi Nath Ram Vs. State of Jharkhand and Others reported in (2004) 7 SCC 261, we quote the relevant paragraphs Nos. 5, 8 and 9:
"5. While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been assailed and to take the view different than what was taken in the earlier decision. A similar view was taken in K.G. Derasari and Anr. V. Union of India and Ors. (2001 (10) SCC 496). The Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the concerned party to approach the higher Court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher Court. The Court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the Court passing the judgment or order. Though strong reliance was placed by learned counsel for the State of Bihar on a three-Judge Bench decision in Niaz Mohammad and Ors.v. State of Haryana and Ors. (1994 (6) SCC 352), we find that the same has no application to the facts of the present case. In that case the question arose about the impossibility to obey the order. If that was the stand of the State, the least it could have done was to assail correctness of the judgment before the higher Court. State took diametrically opposite stands before this Court. One was that there was no specific direction to do anything in particular and, second was what was required to be done has been done. If what was to be done has been done, it cannot certainly be said that there was impossibility to carry out the orders. In any event, the High Court has not recorded a finding that the direction given earlier was impossible to be carried out or that the direction given has been complied with.
285 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
8. If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside and the matter is remitted for fresh consideration. It shall deal with the application in its proper perspective in accordance with law afresh. We make it clear that we have not expressed any opinion regarding acceptability or otherwise of the application for initiation of contempt proceedings.
9. In a given case, even if ultimately the interim order is vacated or relief in the main proceeding is not granted to a party, the other side cannot take that as a ground for dis- obedience of any interim order passed by the Court."
80. They would also rely on the judgment of the Hon'ble Supreme Court in Union of India Vs. Subedar Devassy P.V, reported in (2006) 1 SCC 613, the relevant paragraphs 2 and 6 are quoted below:
"2. While dealing with an application for contempt, the court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a court to examine the correctness of the earlier decision whicgh had not been assailed and to take a view different from what was taken in the earlier decision. A similar view was taken in K.G. Derasari v. Union of India, [2001] 10 SCC
496. The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of 286 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher court. The court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Though strong reliance was placed by learned counsel for the appellants on a three-Judge Bench decision in Niaz Mohd.v. State of Haryana, [1994] 6 SCC 332 we find that the same has no application to the facts of the present case. In that case the question arose about the impossibility to obey the order. If that was the stand of the appellants, the least it could have done was to assail correctness of the judgment before the higher court.
6. If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible."
81. They would, by referring the judgment of the Hon'ble Supreme Court in the case of Khoday Distilleries Ltd. Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal, reported in (2019) 4 SCC 376, submit that the dismissal of the SLP without granting leave does 287 OA No. 170/00961/2019 & Ors/CAT/BANGALORE not amount to merger or affirmation of the order of the Hon'ble Division Bench of the High Court.
EXAMINATION OF THE APPLICATIONS
82. The fact that is mentioned above will have a relevance in OA No. 964/2019 also. In this case, a peculiar thing had also occurred. At the time the applicant was selected as Assistant Commissioner, his marks was indicated to be 1170. But on re-evaluation, his marks went upto 1180. But when the impugned notification came, his mark was shown as 1121. From where this anomaly had happened, the KPSC could not explain other than saying that "all this was done on the compulsion of content process". He would say that the methodology adopted with regard to moderation and scaling down which is completely erroneous as the system unknown to law. In fact, the KPSC itself had filed a memo indicating that they have earlier given a memo which is illustrative in character and not demonstrate any new method. But unfortunately the Hon'ble High Court assumed that this was a new methodology adopted by the KPSC and on prompting of the petitioners herein allowed it. The applicant would say that this unheard of methodology of scaling down moderation and taking of 10% at random had vitiated the universality concept to be indued in any competitive process. He would lament that the irrespective litigation practice adopted by the KPSC has led to this sorry situation.
288 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Without any material on their hand, respondents have approached the KAT which has passed an order earlier indicating that if at all that there is a lacunae, it can only be resolved by universal re-evaluation, but the random selection methodology will defeat the concept of competition.
He would say that he cannot be reverted without concurrence of the Union Government as he has no lien in the State list of officers as in the case of other officers are. He submits that it is very curious that even when he had obtained more marks on re-evaluation, the KPSC has reverted him allegedly on pressure.
83. In paragraph 267 of the second instance judgment it is stipulated that following the findings of the Committee in the case of Smt. Leela M, Sri. Ponnappa, Sri. Naveen P.C. Sri. Subhash K.G. Sri. Pratap K.R. and Sri Cauveriappa, prima-facie the committee could not establish a nexus between Dr. K.S. Shivanna, Secretary Sri. A.K. Monnappa and these 6 candidates but irresistible interference leads to show that they have indulged in malpractice (why and how Prof. Shivanna picks up all the 4 coded answer scripts of these 6 candidates only, and awards enormous marks over and above the Examiners marks for scripts which obviously do not merit such marks). Therefore, the committee recommends that their candidature also may be cancelled after due process of enquiry.
289 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Nothing is known about any enquiry made against them. Quite obviously, the Fact Finding Committee or any authority has not given any of these persons any opportunity of being heard before coming to any such finding.
84. In paragraph 269 stipulating on Shri K.K. Mishra's report it is said that he had come to a conclusion that it can only be this: infractions can only be the tip of the iceberg and in (31) it is said that it is in evidence that the irregularities committed in regard to Main Examination were much larger and widespread than those identified by the sub committee which it appears is only the proverbial tip of the iceberg.
85. The learned counsel for the applicant submits that these are only surmises made by Shri K.K. Mishra and which has no factual basis at all. They would say that, to understand the situation, the climate of terror following the jailing of the Chairman of the KPSC, Dr. Krishna, Secretary Shri A.K. Monappa and criminal cases launched against several others were to be considered. They would say that the situation was such that any examiner or any other person connected with such evaluation will only give 5 marks to a candidate who is normally and legitimately eligible for 290 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 10 marks as everyone was scared as to what is going to happen next in the four years from 2012-2016 they would say that no equitable opportunity was given to anybody to cite their cases or to even to know what is the infraction which is alleged against them.
86. They would point out that since the KPSC now says that they were following the pattern of the UPSC and the same process was followed from 1975 to at least 2005 why only 3 years
- 1998, 1999 and 2004 - were selected out of all these years to say that there is infraction in the procedure because, if there is infraction in the procedures, they would say that all the selection from 1975 to 2005 should be cancelled.
87. Relating to the allegation that ratio violation was present in calling for the Personality Test, they would say that the issue arose as a wrong interpretation was made on the reservation of persons who belonged to oppressed categories but were meritorious enough to secure more marks and became equivalently considered with General Merit candidates. These people were singled out and again relegated back to the backward caste communities and therefore raised an allegation 291 OA No. 170/00961/2019 & Ors/CAT/BANGALORE that more number of backward community people were called for Personality Test than their numbers in the 1:5 ratio called for. They would say that it is not the correct procedure as the Hon'ble Apex Court in more than a hundred cases had ruled that any reserved category candidate who secures more marks and became eligible to compete in the General Merit list will be considered as a General Merit candidate only. He need not go back to his reserved community status. But a needless confusion was made by the KPSC and the petitioners in that case by computing it wrongly and, in the presence of confusion thus generated, it was made apparent that more number of people violating the ratio was called.
They would say that in effect it was not so.
88. Regarding the fourth allegation that there may be tampering with marks it is stated"it is alleged and doubted by the petitioners that in the selection of the three batches that there was manipulation of marks of individual candidates in the Written Examination so as to favour the chosen candidates." The applicants submitthat this is an absolutely vague assertion and even not an assertion but just a 292 OA No. 170/00961/2019 & Ors/CAT/BANGALORE doubt raised by the then petitioners. No allegation can said to be in existence unless it is specific and focused. By raising a mere doubt, it cannot even become an allegation.
89. The learned counsel for the applicants would say that the submissions made in the Hota Commission Report which were not germane to 1998 selection and only concerned with 2011 and 2013 selection is now stated as a ground to assail their selection.
Apparently the Hon'ble Court had issued the following orders:
(a) The KPSC shall prepare a separate list of candidates belonging to the reserved category, who took the written examination, showing the marks secured in the written examination in the order of merit.
(b) From out of the names in the said list prepared, prepare a list of candidates eligible to be called for the personality test in the ratio of 1:5, i.e., five times the number of candidates as there are vacancies reserved for each of the category out of reserved posts belonging to Scheduled Caste, Scheduled Tribes and other backward classes.
(c) If the names of the selected candidates belonging to the reserved category finds a place in this list, whether as General Merit candidates or Reserved candidates, then their appointment is valid and it shall not be disturbed.
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(d) If the names of the selected candidates do not find a place in this list, then their appointment is void and the same is hereby set aside.
(e) The KPSC shall undertake this exercise within two months from the date of receipt of the copy of this order and forward the same to the Government for passing appropriate orders.
90. The learned counsel for the applicant raises an objection that instead of the 91 answer scripts which in sub clause (3) the Hon'ble High Court had directed to be re evaluated in excess of 10%, the KPSC should not have taken 119 candidates or 119 answer scripts, as the case may be. The KPSC would submit that that is the way in which they have understood the Court's orders.
91. Thereafter the Court passes an order in Clause (6) that "All other issues/disputes which are personal in character are relegated to be decided by the Karnataka Administrative Tribunal, where the applications of the petitioners are pending consideration. It is open to the petitioners to amend the said application to include those issues which are not decided in this Public Interest Litigation. Similarly, it is open to the respondents to agitate their rights/put forth their defence in the pending proceedings before the Karnataka Administrative Tribunal, if they are made parties.
294 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Otherwise, they can also initiate independent proceedings for protecting their rights or agitate their rights."
92. Following this the learned counsel submits that whatever be the outcome as understood by the KPSC when a right had been reserved for individual grievances to be settled and since it is stipulated that they being the respondents they can initiate independent proceedings for protecting their rights or agitate their rights they would say that at least at that point of time a right would have accrued to them to approach the Hon'ble High Court once again on the issue of maintainability of the PIL also as the Hon'ble Apex Court have clearly held that PIL in service litigation is not maintainable. They refer to the judgment of the Hon'ble Apex Court inGirjesh Shrivastava and Others Vs. State of Madhya Pradesh and Others reported in(2010) 10 SCC 707, which we quote:
"(BEFORE G.S. SINGHVI AND A.K. GANGULY, JJ) Girjesh Shrivastava and Others ...Appellants
- Versus -
State of M.P. and Others ...Respondents
CIVIL APPEAL NO.9227 OF 2010
JUDGMENT
A.K.GANGULY, J.
1. Leave is granted in all these Special Leave Petitions
2. These appeals arise from the decision delivered on 06.08.2004 by the High Court of Madhya Pradesh in Review Petitions 1071/2003, 1074/2003, and decision of the High Court of Madhya Pradesh in WP(C) 63/2002 and WP (C) 1529/2001 dated 03.11.2003. The Review Petitions were filed by those 295 OA No. 170/00961/2019 & Ors/CAT/BANGALORE teachers who, though not impleaded in the writ petitions, were affected by High Court's decision dated 3.11.2003.
3. The appellants are a group of Grade II and III school teachers working in Panchayat Schools as Samvida Shala Shikshak (contractual teachers). They had been appointed under the provisions of the Madhya Pradesh Panchayat Contractual Teachers (Conditions of Appointment and Service) Rules, 2001 (hereinafter "2001 Rules"). These selection rules which had come into force on 11.07.2001 were made in exercise of the powers conferred under sub-section (1) of Section 95 read with sub- section (2) of Section 70 of the Madhya Pradesh Panchayati Raj Avam Gram Swaraj Adhiniyam 1993 (Act 1 of 1994).
4. Pursuant to the provisions of the said rules, an advertisement was issued by the Zila Panchayat Office, District Bhind, to initiate selection process for the appointments. All the appellants had applied and were selected and consequently appointed as Samvida Shala Shikshak.
5. These appointments however were challenged in two Public Interest Litigations being WP(C) 1529/2001 and WP(C) 63/2002, inter alia, on the ground that in contravention of the 2001 Rules, no proper advertisement for reservation for ex-servicemen had been made. It was further challenged as being held in contravention of para 5(viii) of the order passed by the State Government vide memo dated 11.7.2001, as members of the selection committee had their near relatives appear as candidates for selection. While WP (C) 1529/2001 challenged the appointments made by Janpad Panchayat Mehagaon, WP (C) 63/2002 challenged the appointments made by Janpad Panchayat Raun. Both the panchayats are within the district of Bhind, Madhya Pradesh.
6. Rule 5 (4) (b) of 2001 Rules provides:
"For each category of the vacant posts, the reservation shall be
-
(i) xxx (ii) xxx (iii) 10% for ex-army personnel;
(iv) Reservationshallalso beprovided to any other category which is notified by the Government from time to time.
7. Para 5 (viii) of the memo dated 11.07.2001 provides:
296 OA No. 170/00961/2019 & Ors/CAT/BANGALORE (5) Some provisions of the Contractual Teachers (Appointment and Service Conditions) Rules 2001 are to be specifically kept in mind, which are as follows:
(viii) Prior to the constitution of the interview board it will be ensured that the son/daughter or real relatives of the Members of the Board are not participating in the interview. It will be appropriate that an undertaking may be taken from the Members in this behalf."
8. Before the High Court the petitions were heard mainly on the points mentioned above.With respect to WP No. 1529/2001 the High Court allowed the writ petition and ordered the cancellation of appointments, inter alia, on the grounds that appointments were illegal as members of the selection committee allowed their near relatives to appear in the selection process. It stated that on the basis of an inquiry conducted by the District Collector, show- cause notices were issued to three members of the selection committee asking them as to why did their relatives appeared as candidates in the selection.
9. The High Court further held that in contravention of Rule 5 (4)
(b) which mandated 10 per cent reservation for ex- servicemen, no proper advertisement had been made so as to invite applications from ex-servicemen. The High Court noted that the Respondent-State of Madhya Pradesh had accepted this mistake on its part. On the question as to whether those who had already been appointed and were being affected by the said order of quashing the appointments, were to be impleaded or not, the Court held that in an earlier order dated 07.11.2001, it had stated that the issuance of the appointment letters in the concerned matter was subject to the outcome in the writ petition. Therefore the question of impleadment of those who were appointed did not arise anew.
10. However, in WP (C) No. 63/2002, even though the High Court allowed the petition in view of contravention of provision for 10 per cent reservation, it held in the writ petition, near relatives of the members of the selection committee did not appear for selection. Hence, as against the decision in WP (C) 1529/2001, the Court in WP (c) 63/2002 did not strike down the selection on the basis of the presence of near relatives. Instead it invalidated the selection only for being in violation of Rule 5 (4) (b) which mandated a reservation of 10 per cent for ex-servicemen.
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11. Aggrieved by the decision of the High Court some of the successful candidates, who are appellants herein, and were not impleaded in either of the two writ petitions, filed Review Petitions No. 1071/2003, 1074/2003 and 1117/2003 before the High Court. They pleaded that the selection process was quashed in WP 1529/2001 and WP 63/2002, to their great prejudice without impleading them to the proceedings. They further argued whether the alleged improper recruitment of a handful of candidates had flawed the entire selection is a matter to be considered by the High Court. They also argued that in a service matter where express remedy is available, a Public Interest Litigation is not maintainable.
12. The High Court in its order dated 06.08.2004 dismissed all the review petitions. While upholding the impugned orders it said that having regard to the grave irregularity in the selection process, the quashing of the entire selection process was just and proper.
13. In these appeals it is contended that WP(C) 1529/2001 and WP (C) 63/2002 cannot be called Public Interest petitions as there was an element of Personal Interest involved. This is clear from the fact that these PILs had been filed with respect to only two janpads, whereas the advertisement inviting applications for selection, and the consequent selection process had been made in six janpads. Also, the challenge to the advertisement was made as late as three months after the date of its issuance.
14. However, the main argument by the appellants against entertaining WP (C) 1520/2001 and WP (C) 63/2002 is on the ground that a PIL in a service matter is not maintainable. This Court is of the opinion that there is considerable merit in that contention.It is common ground that dispute in this case is over selection and appointment which is a service matter.
15. In Dr.DuryodhanSahu and others vs. Jitendra Kumar Mishra and others(1998) 7 SCC 273, a three judge Bench of this Court held a PIL is not maintainable in service matters. This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and 227. This Court held "18....if public interest litigations at the instance of strangers are allowed to be entertained by the (Administrative) Tribunal, the very object of speedy disposal of service matters would get 298 OA No. 170/00961/2019 & Ors/CAT/BANGALORE defeated" (para 18). Same reasoning applies here as a Public Interest Litigation has been filed when the entire dispute relates to selection and appointment.
16. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and others, reported in (2006) 11 SCC 731 (II), this Court held that in service matters only the non-appointees can assail the legality of the appointment procedure (See para 61, page 755 of the report).
17. This view was very strongly expressed by this Court in DattarajNathujiThaware v. State of Maharashtra and others, reported in (2005) 1 SCC 590, by pointing out that despite the decision in DuryodhanSahu (supra), PILs in service matters `continue unabated'. This Court opined that High Courts should `throw out' such petitions in view of the decision in DuryodhanSahu (supra) (Para 16, page 596).
18. Same principles have been reiterated in Ashok Kumar Pandey v. State of W.B., reported in (2004) 3 SCC 349, at page 358 (Para 16).
19. In a recent decision of this Court delivered on 30.8.2010, in Hari Bansh Lal v. Sahodar Prasad Mahto and others, (MANU/SC/9654/2010), it has been held that except in a case for a writ of `Quo Warranto', PIL in a service matter is not maintainable (See paras 6 and 7).
20. The next point urged by the appellants, that they had never been impleaded in the two petitions, even as orders passed by the High Court had a direct effect on their livelihood, also goes to the root of the matter as it violates the principle of audi alteram partem.
21. This Court in Prabodh Verma and others vs. State of Uttar Pradesh and others,[(1984) 4 SCC 251 at p. 273] held, "A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents...".
22. Similarly this Court in Ramarao and others vs. All India Backward Class Bank Employees Welfare Association and others,[(2004) 2 SCC 76, at page 86] said, "...An order issued against a person without impleading him as a party and thus, without giving an opportunity of hearing must 299 OA No. 170/00961/2019 & Ors/CAT/BANGALORE be held to be bad in law. The appellants herein, keeping in view the fact that by reason of the impugned direction, the orders of promotion effected in their favour had been directed to be withdrawn, indisputably were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon."
23. Also in B. Ramanjini and others v. State of Andhra Pradesh and others, [(2002) 5 SCC 533 at pages 542-543, paragraph 19] where selection of certain teachers was challenged without impleading them, this Court held, "Selection process had commenced long back as early as in 1998 and it had been completed. The persons selected were appointed pursuant to the selections made and had been performing their duties. However, the selected candidates had not been impleaded as parties to the proceedings either in their individual capacity or in any representative capacity. In that view of the matter, the High Court ought not to have examined any of the questions raised before it in the proceedings initiated before it. The writ petitions filed by the respondents concerned ought to have been dismissed which are more or less in the nature of a public interest litigation."
24. The High Court while dismissing the review petitions stated that in view of the grave irregularity of allowing near relations to appear in the selection process, the entire selection had been rightly set aside. This finding is a rather sweeping one as factually it appears that in W.P. (C) No.63/2002 none of the members of the selection committee allowed their near relatives to appear as candidates. It is, therefore, important to note that the selection process had been struck down on the ground of presence of near relatives in WP (C) No.1529/2001 alone and not in WP (C) No.63/2002.
25. Furthermore even in WP (C) No.1529/2001 an order dated 10/12/2001 (i.e. prior to the dismissal of the review petition) was made by the District Collector after conducting an inquiry that out of the three alleged cases of relatives of the selectors being selected, two were not `relatives' as defined under Section 40 of the Madhya Pradesh Panchayati Raj Act, 1993. One Jai Pal Singh who was found to be a `relative' of Layak Singh Gurjar, a member of the District Panchayat, within the meaning of Section 40 of the Act was interviewed, but was never selected. This has been certified by the Chief Executive Officer of the District Panchayat.
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26. From these facts it can be concluded that the alleged participation of near relatives in the selection process was not such a factor as to vitiate the entire selection process. Even if there were some illegal beneficiaries from the selection process, they should have been weeded out instead of striking down the entire selection process.
27. In Charanjit Singh and others vs. Harinder Sharma and others [(2002) 9 SCC 732] a similar situation had arisen. In that case, while not approving the interference of the High Court in the selection process, this Court held that merely because some of the candidates in the selection process happened to be relatives of the members of the selection committee, it did not mean that all the candidates were relatives of the members of the selection committee and had been illegally selected. It was also held that since the petition was not made by any of the candidates who had appeared in the selection process and was instead filed as a Public Interest Litigation, it was improper for the High Court to interfere in the matter.
28. On a more detailed analysis of this issue, in Union of India and others v. Rajesh P. U., Puthuvalnikathu and another, [(2003) 7 SCC 285 at p. 290, paragraph 6], this Court held that "In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or other of irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or other reasons. Applying an unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go bye to contextual considerations throwing to winds the principle of proportionality in going farther than what was strictly and reasonably required to meet the situation. In short, the Competent Authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the 301 OA No. 170/00961/2019 & Ors/CAT/BANGALORE nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational".
29. Coming to the issue of selection and appointment of ex- servicemen as a reserved category, from what has been placed before us, we understand that while in Mehagaon 5 ex- servicemen had been appointed out of a total of 9 applicants, in Raun none had been so appointed. As stated above, if at all there was an issue with respect to the reservation policy of the ex-servicemen it ought to have been brought up as a service dispute and not in a PIL. The High Court, with due respect, should have displayed a little more restraint and balance before quashing a selection process in which the persons selected had already put in 3 years of service.
30. Furthermore it should be noted that para 10 of the application form for the candidates stated that if the applicant person was either a handicap or an ex-serviceman then he was required to mention so in the application form and that a certificate to the same effect from a competent authority should be enclosed. As noted earlier in WP (C) No.1529/2001 as many as 9 ex- servicemen had applied, out of which 5 had been selected and appointed in the reserved category. The rest 4 were not selected in the selection process. Therefore, it would be incorrect to say that the advertisement was so made so as to prevent ex- servicemen from applying.
31. More importantly, in deciding these issues, the High Court should have been mindful of the fact that an order for cancellation of appointment would render most of the appellants unemployed. Most of them were earlier teaching in Non-formal education centers, from where they had resigned to apply in response to the advertisement. They had left their previous employment in view of the fact that for their three year long teaching experiences, the interview process in the present selection was awarding them grace marks of 25 per cent. It had also given them a relaxation of 8 years with respect to their age. Now, if they lose their jobs as a result of High Court's order, they would be effectively unemployed as they cannot even revert to their earlier jobs in the Non-formal education centers, which have been abolished since then. This would severely affect the economic security of many families. Most of them are between the age group of 35-45 years, and the prospects for them of finding another job are rather dim. Some of them were in fact awaiting their salary rise at the time of quashing of their appointment by the High Court.
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32. With utmost respect to the High Court, we are constrained to observe that equities were not properly balanced in the exercise of discretion by the High Court.For the reasons aforesaid, the appeals are allowed. The impugned judgments of the High Court are quashed. The selection proceedings are upheld.
33. Parties are left to bear their own costs."
93. In paragraphs 15 to 19 and 27, the Hon'ble Apex Court following the decision of 1) DuryodhanSahu Vs. Jitendra Kumar Mishra reported (1998) 7 SCC 273, 2) B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Association reported in (2006) 11 SCC 731, 3) DattarajNathujiThaware Vs. State of Maharashtrareported in (2005) 1 SCC 590, 4) Ashok Kumar Pandey Vs. State of West Bengal reported in (2004) 3 SCC 349, 5) HariBansh Lal Vs. Sahodar Prasad Mahto reported in (2010) 9 SCC 655, 6) Charanjit Singh Vs. Harinder Sharma reported in (2002) 9 SCC 732have held that in service matters PILs are not maintainable.
94. They would also rely on the judgment of the Hon'ble Apex Court in M.V. Thimmaiah and others Vs. Union Public Service Commissionreported in (2008) 2 SCC 119, which we quote:
"PETITIONER:
M.V.Thimmaiah&Ors RESPONDENT:
Union Public Service Commission &Ors.
Bench: A.K.Mathur, MarkandeyKatju Civil Appeal Nos. 5883-5891 of 2007 303 OA No. 170/00961/2019 & Ors/CAT/BANGALORE decided on 13 December, 2007 JUDGMENT A.K.MATHUR,J.
1. Leave granted in all the Special Leave Petitions.
2. All these appeals arise against the common order dated 6.10.2005 passed by the Division Bench of the High Court of Karnataka while disposing of a bunch of petitions arising out of the common order dated 4.10.2004 passed by the Central Administrative Tribunal, Bangalore Bench (hereinafter to be referred to as the Tribunal).
3. The Tribunal by the aforesaid order set aside the recommendations of the Selection Committee to fill up 8 vacancies belonging to the non-State Civil Service Officers of Government of Karnataka to the Indian Administrative Service (IAS) of Karnataka cadre on the ground of mala fides, arbitrariness and also on the ground that the Selection Committee without application of mind had awarded marks to the selected candidates in a discriminatory manner. It was also held by the Tribunal that the Selection Committee was not properly constituted as per the provisions of Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter to be referred to as the Regulations of 1955).
4. Out of the bunch of petitions which were filed before the Karnataka High Court, two petitions were filed by the Union Public Service Commission ( hereinafter to be referred to as the Commission), first is that the Chairman of the Selection Committee, Shri Subir Dutta, Member, U.P.S.C. against whom the allegation of mala fide was leveled and it was upheld by the Tribunal, second one challenging the finding of the Tribunal that the Selection Committee was not properly constituted and the Selection Committee acted arbitrarily and in a discriminatory manner and awarded marks to the selected candidates. Another batch of petitions (seven in number) was filed by the selected candidates whose names were recommended for appointment to the I.A.S. and two writ petitions were filed by the persons who were not short-listed by the Screening Committee. Hence, all these petitions were clubbed together and were disposed of by the common order as aforesaid.
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5. Learned Division Bench of the Karnataka High Court after hearing all the parties found that the allegation of mala fide leveled against Shri Subir Dutta, Member of the Commission was not well founded, that the Selection Committee was properly constituted and the Committee did not act in arbitrary or discriminatory manner while awarding the marks to the selected candidates. Hence the order of the Tribunal was set aside. Aggrieved against this order passed by the Division Bench of the Karnataka High Court dated 6.10.2005, the present appeals were filed by the aggrieved persons. Hence, the appeals have now finally come up before us for disposal.
6. The appointment to the I.A.S. from the State cadre can be made other than the State Civil Service in case an incumbent is having outstanding merit and ability and holds a gazetted post in a substantive capacity and has completed not less than eight years of service in the State Government on the first day of January of the year in which his case is being considered in any post which has been declared equivalent to the post of Deputy Collector in the State Civil Service. The candidates shall not exceed five times the posts proposed to be filled up during the year. An incumbent should not have attained the age of 54 years, as per the Regulations of 1997. Regulation 5 says that a list shall be prepared of the suitable candidates by the Committee after scrutiny of service records and personal interview. The Committee has been defined in Regulation 2(i)(a) which means a Committee as constituted under Regulation 3 of Regulations, 1955.
7. As per the Regulations, the Committee shall be headed by the Chairman of the Commission or if the Chairman fails to attend, by any other Member of the Commission. The Chairman or the Member of the Commission shall preside over the meetings. Regulation 3(3) further says that the absence of a member, other than the Chairman or Member of the Commission, shall not invalidate the proceedings of the Committee if more than half the members of the Committee had attended the meeting. Regulation 3(3) which will have relevant bearing reads as under:
"3(3) The absence of a member, other than the Chairman or Member of the Commission, shall not invalidate the proceedings of the Committee if more than half the members of the Committee had attended the meetings."
8. Apart from the Member of the Commission, as per the schedule referred to for the State, the following members shall 305 OA No. 170/00961/2019 & Ors/CAT/BANGALORE also be the members of the Committee which includes the Chief Secretary to the Government; Additional Chief Secretary to the Government; Principal Secretary to Government, Revenue Department; Senior most Divisional Commissioner and two nominees of the Central Government. This Selection Committee after scrutiny of the records and calling for personal interview will prepare a list and recommend the names of the suitable candidates to the State Government concerned, which shall forward to the Commission for its approval along with the records of all members of the State Civil Service included in the list; the records of all members of the State Civil Service who are proposed to be superseded by the recommendations made in the list and the observations, if any, of the State Government on the recommendations of the Committee to the Central Government and the Central Government shall also forward their observations, if any, on the recommendations of the Committee to the Commission. Thereafter, the Commission as per Regulation 7 of 1997 shall consider the list prepared by the Committee; observations, if any, of the Central Government or the State Government concerned, on the recommendations of the Committee and approve the list subject to the provisions of Regulation 7(2) of the Regulations, 1997.
As per Regulation 7(2); if the Commission considers it necessary to make any changes in the list received from the State Government, the Commission shall inform the State Government and the Central Government of the changes proposed and after taking into account these comments, if any, of the State Government and the Central Government, may approve the list finally with such modification, as may in its opinion be just and proper.
That list shall be forwarded to the Central Government and the Central Government shall make appointment on the basis of the list but if the Central Government is of the opinion that it is necessary or expedient so to do in the public interest may not appoint any person and it is within the domain of the Central Government and it need not record its reasons or communicate the same to the Commission. In this scheme of the Rules, the factual controversy shall be examined.
9. In the present case eight vacancies were advertised and the process of recruitment to these vacancies was undertaken. The State Government constituted a Screening Committee for short- listing of the Officers not belonging to the State Civil Service. The Committee was headed by Shri B.S.Patil, Chief Secretary to the 306 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Government and four other Members who were the Secretaries to the Government of Karnataka.
10. As per Circular dated 30.3.2002 the Government had directed various Heads of the Department to send a list eligible suitable officers who fulfil the aforesaid eligibility criteria. In pursuance of this circular 79 names were received from different Departments and their cases were scrutinized by the Screening Committee with reference to their records for short-listing the names which could be sent to the Commission for selection to the I.A.S. cadre. Since the number of persons to be considered shall not exceed five times the vacancies proposed to be filled up in that year, therefore, as against eight vacancies 40 candidates were to be short-listed. The Screening Committee short-listed 40 candidates on the basis of the service records out of the 79 candidates whose names were received from different Departments. Besides, the name of one more person was sent to the Selection Committee for selection because of the order passed by the Tribunal. Thus, in total names of 41 persons were sent for consideration against eight vacancies.
11. The Selection Committee after scrutinizing the cases and after interviewing 39 candidates selected eight candidates and two candidates remained absent. Though a petition was filed before the Tribunal by one person who was not selected and stay order was obtained that was challenged before the High Court and the High Court allowed the writ petition and vacated the interim order passed by the Tribunal staying the selection and permitted the selection to be taken to its logical conclusion subject to the condition that the order passed by the Tribunal shall be subject to challenge before this Court.
12. Then one Special Leave Petition was filed before this Court against the order passed by the Division Bench vacating the stay order passed by the Tribunal that Special Leave Petition was dismissed on 23.7.2004. Thereafter, the matter was finally heard by the Tribunal and the Tribunal set aside the selection of eight selected candidates of the Karnataka cadre to the I.A.S. The Tribunal was of the view that the Selection Committee was not properly constituted as per the provisions of Regulation 3 of the Regulations, 1955 and the Tribunal further took the view that the selection of eight candidates stood vitiated as a result of mala fide on the part of Shri B.S.Patil, Chief Secretary and Shri Subir Dutta, Member of the Commission who was the Chairman of the Selection Committee.
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13. It was further observed by the Tribunal that the selection was not fair and selection was being made in an arbitrary manner. However, the name of two persons who were not short-listed was rejected by the Tribunal on the ground that there was no arbitrariness for their non-inclusion. That order was challenged by them before the High Court by filing writ petition. The Division Bench of the High Court after examining the matter found that all the grounds raised by the writ petitioners were not sustainable.
14. The controversy involving the selection could be divided into two parts; (i) mala fide and (ii) the constitution of the Selection Committee and the selection of the candidates. So far as the first argument with regard to mala fide is concerned, Shri Subir Dutta was not impleaded as a party, but subsequently, he was impleaded as a party respondent. The first ground which was alleged is that the select list is not only arbitrary but also a product of favouritism shown to the selected candidates notwithstanding the fact that the appellants had outstanding records but their names were not included solely for the reason that the Selection Committee was headed by Shri Subir Dutta, Member of the Commission and Shri B.S.Patil, the Chief Secretary to the Government being one of the constituents of the Committee being interested in the candidature of Respondents 5 to 12 before the Tribunal and as a result of such selection, their candidatures have not been considered in a proper and objective manner and they did not receive a fair treatment from the Selection Committee.
15. It is alleged that the selection was vitiated on the ground that Shri Subir Dutta, who was the Chairman of the Selection Committee was appeased with the piece of land in the city of Bangalore i.e. he was allotted a site in Bangalore irrespective of the fact that whether he was eligible or not. It was submitted that during the process of selection and on the basis of interview, a site has been bartered away in favour of Shri Subir Dutta and in that the former Chief Secretary to the Government, Shri B.S.Patil has shown a great interest. Therefore, on account of this favouritism was shown to respondents 5 to 12 before the Tribunal, the applicants before the Tribunal have been denied their legitimate selection and therefore, in sum total, the allegation of mala fide against Shri Subir Dutta is that a site was allotted to him to appease him and secure favourable selection in respect of Respondents 5 to 12.
16. The High Court in order to verify the element of truth sent for the original file relating to the allotment of residential site to Shri 308 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Subir Dutta from Bangalore Development Authority wherein it is noted that on 11.4.2003 a note was placed by Shri B.S.Patil, the Chief Secretary, to the Chief Minister making a request that a site be allotted to Shri Subir Dutta as he has attachment to the State of Karnataka and he has been helpful both for selecting Bangalore for bi- annual Air Shows and for grant of defence land for the purpose of road network in Bangalore. For that on 17.4.2003 the Chief Minister approved the proposal of the Chief Secretary for allotment of a residential site to Shri Subir Dutta who was at that time the Defence Secretary. After that necessary formalities for allotment was undertaken. On 17.4.2003 when a site was allotted to Shri Subir Dutta, he was the Defence Secretary to Government of India and he was not a Member of the Commission and he became a Member of the Commission only on 1.7.2003 and assumed charge on 4.7.2003 as Member of the Commission. The selection took place in November, 2003. Therefore, the Division Bench of the High Court rejected the allegation of mala fide to be far-fetched.
17. We gave our thoughtful consideration to this allegation. There is no correlation with this selection. It is too far fetched to connect with this case that Shri Subir Dutta who was given the residential site in lieu of his service rendered to the State of Karnataka, would necessarily favour the candicates. The short-listing was done by the Screening Committee headed by the Chief Secretary along with four Secretaries of the State and there was no mala fide intention in short-listing of these persons, now to think that just because Shri Dutta was allotted some land so that necessarily he would favour these selected candidates only is nothing but figment of imagination of the appellants. To connect the selection with the previous allotment of land to Shri Subir Dutta has hardly any connection between the two.
18. In the selection process Shri Subir Dutta was one of the Members along with others. All the Officers who were to be selected belonged to Karnataka State and it is not specific that any of the selected candidates has in any manner actively associated with the allotment of land to Shri Subir Dutta. It is too remote to connect the selection of these candidates with the allotment of the site to Shri Subir Dutta. We do not find any connection that any of the selected candidates has in any manner directly or indirectly associated himself in the allotment of the site in favour of Shri Subir Dutta. As it appears from the file which was summoned by the High Court that the proposal was mooted out by the Chief Secretary and it was approved by the Chief Minister. Therefore, there appears no direct or indirect 309 OA No. 170/00961/2019 & Ors/CAT/BANGALORE connection with the selection of candidates and allotment of residential site in favour of Shri Subir Dutta. As such, the allegations are too far-fetched to render the entire selection invalid on the ground of so called mala fide. This is purely flight of imagination and we strongly reject the allegation of mala fide against Shri Subir Dutta, the Chairman of the Selection Committee.
19. So far as the allegation of mala fide against Shri B.S.Patil is concerned, he was not impleaded as a party. Therefore, the allegation of mala fide could not be entertained by the Tribunal. As such, the allegation of mala fide against Shri B.S.Patil could not be taken into consideration and rightly so, by the High Court as well as by the Tribunal. The allegation of mala fide is very easy to be levelled and it is very difficult to substantiate it, specially in the matter of selection or whoever is involved in the decision making process. People are prone to make such allegation but the Courts owe a duty to scrutinize the allegation meticulously because the person who is making the allegation of animous sometimes bona fidely or sometimes mala fidely due to his non-selection. He has a vested interest. Therefore, unless the allegations are substantiated beyond doubt, till that time the Court cannot draw its conclusion. Therefore, we reject the allegation of mala fide.
20. Now, coming to the constitution of the Selection Committee and the selection undertaken by the Committee, so far as the constitution of the Selection Committee is concerned, one of the submissions was that the Divisional Commissioner who was supposed to be the Member of the Selection Committee was not there. Therefore, the whole selection stood vitiated. So far as this argument is concerned, suffice it to say that the post of Divisional Commissioner was abolished by the State Government with effect from 1.4.2003 and the said fact was informed to the Commission about the abolition of the post and it was requested to suitably amend the schedule as per Regulation 3 of the Regulations of 1955. Since the post of Divisional Commissioner was not in existence and the same having been abolished there was no question of including the Divisional Commissioner as a Member of Selection Committee specially when the Government of Karnataka has already informed the Commission to amend the schedule. When the post of Divisional Commissioner was not there that would not render the selection or would not make the Selection Committee non-functional as out of the seven Members six Members participated in the Selection Committee and Regulation 3 clearly says that absence of a Member, other than 310 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the Chairman or Member of the Commission, shall not invalidate the proceedings of the Committee if more than half the Members of the Committee had attended its meetings. Therefore, this contingency has already been taken care by Regulation 3(3) that in case any Member is unable to participate in the selection process except the Member of the Commission and more than half of the members have attended the meeting, then the proceedings of the Committee shall not vitiate in the absence of such Member. As such the Selection Committee in the absence of Divisional Commissioner cannot be said to be not properly constituted. More so there is no prejudice caused to the appellants as out of the seven Members, six Members of the Selection Committee were there which is more than 50%. As such, nothing turns on this. We hold that the Selection Committee was properly constituted.
21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Committee only and Courts rarely sit in court of appeal to examine the selection of the candidates nor is the business of the Court to examine each candidate and record its opinion. In this connection, learned senior counsel for the appellants has taken us through various following decisions of this Court.
(i) AIR 2003 SC 3044 Surya Dev Rai v. Ram Chander Rai &Ors.
(ii) (1993) 3 SCC 319 P.M.Bayas V. Union of India &Ors.
(iii) (1985) 4 SCC 417 Ashok Kumar Yadav &Ors. V. State of Haryana &Ors. Etc.
(iv) (1981) 1 SCC 722 Ajay Hasia&Ors. V. Khalid Mujib Sehravardi&Ors.
(v) 2007 (3) SCALE 219 Union Public Service Commission v.
S.Thiagarajan&Ors.
Mr.P.P.Rao, learned senior counsel appearing for the private respondents invited our attention to the following decisions of this Court.
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(i) (1976) 3 SCC 583 Dr.G.Sarana V. University of Lucknow &Ors.
(ii) (1980) @ SCC 355 Mrs. KundaS.Kadam v.
Dr.K.K.Soman&Ors.
(iii) (2002) 1 SCC 749 Ashok Nagar Welfare Association &Anr. V R.K.Sharma&Ors.
Learned Senior Counsel for the Commission invited our attention to the following decisions of this Court.
(i) (1973) 2 SCC 836 Union of India v. Mohan Lal Capoor&Ors.
(ii) (1981) 4 SCC 159 Lila Dhar V. State of Rajasthan &Ors.
(iii) (1985) 4 SCC 417 Ashok Kumar Yadav &Ors. V. State of Haryana &Ors. Etc.
(iv) 1986 (Supp) SCC 617 R.S.Dass V. Union of India &Ors.etc.
(v) 1987 (Supp) SCC 401 State of U.P. V. Rafiquddin&Ors. Etc.
(vi) (1988) 2 SCC 242 Union Public Service Commission V. Hiranyalal Dev &Ors. Etc.
(vii) (1983) 3 SCC 241 Mehmood Alam Tariq &Ors. V. State of Rajasthan &Ors.
(viii) (1990) 1 SCC 305 DalpatAbasahebSolunke&Ors. V. Dr.B.S.Mahajan&Ors.
(ix) 1992 Supp. (2) SCC 481 National Institute of Mental Health And Neuro Sciences v. Dr.K.Kalyana Raman &Ors.
(x) (1993) 1 SCC 17 Indian Airlines Corporation v.
Capt. K.C.Shukla&Ors.
(xi) 1993) 3 SCC 319 P.M.Bayas v. Union of India &Ors. Etc.
(xii) 1994 Supp. (1) SCC 454 C.P.Kalra v. Air India through its Managing Director, Bombay &Ors.
(xiii) (1997) 1 SCC 280 Anil Katiyar (Mrs.) v. Union of India &Ors.
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(xiv) (1997) 9 SCC 151 All India State Bank OfficersFederation &Ors. V. Union of India &Ors. Etc.
(xv) (1998) 3 SCC 694 Union of India &Anr. V. N.Chandrasekharan&Ors.
(xvi) (2004) 6 SCC 786 Inder Parkash Gupta v.
State of J & K &Ors.
(xvii) (2006) 6 SCC 395 K.H.Siraj v, High Court of Kerala &Ors.
22. Keeping in view the ratio laid down by this Court in several decisions, now we shall examine the argument of learned senior counsel for the appellants which had been addressed. But we may at the very out set observe that the Court while considering the proceedings of the Selection Committee does not sit in a court of appeal. Courts have limited scope to interfere, either selection is actuated with mala fide or statutory provisions have not been followed. In the present case, 39 candidates were examined by the Selection Committee for being recommended for appointment to the I.A,S. The selection process took place between 24.11.2003 and 28.11.2003 whereby the Selection Committee scrutinized the service records of the individual candidates and interviewed them and the Selection Committee selected those candidates who were found to be having outstanding merit and ability.
23. The Commission has fixed 50 marks for scrutiny of the service records and 50 marks were allotted for interview. It was also decided by the Commission that the candidates would be eligible for selection only if they secure 50% marks in each of the two components i.e. 25 marks in the scrutiny of the service records and 25 marks in the interview. The Commission has further laid down the norms for awarding marks for the scrutiny of service records. 10 marks are awarded to a candidate if on an assessment of service record he was found to be outstanding, 8 marks if the service record was found to be very good and 5 marks if it was good. Candidates who have failed to secure 25 marks in the interview were not held to be qualified. Similarly, the candidates who failed to secure 25 marks on the basis of the service records were also not held to be eligible. However, on facts no person was rejected on the ground that he failed to secure 25 marks either on the basis of the service records or on the basis of interview.
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24. The Tribunal while scrutinizing the records sent by the Selection Committee set aside the selection of eight candidates namely Sarvashri Anwar Pasha and K.Ramanna Naik, who according to the Tribunal were wrongly selected. The block period is five years for which the confidential records of the candidates were scrutinized by the Selection Committee i.e. from 1997-98 to 2001-02. It is alleged that the confidential report of Shri Anwar Pasa for the year 1998-99 was written on 14.6.2002 and for the year 1999-2000 was written on 15.6.2002. It is further alleged that these confidential reports were written beyond the time limit prescribed by Rule 8 of the Karnataka Civil Services (Performance Reports) Rules, 1994 (hereinafter to be referred to as the Rules of 1994) and the same could not have been looked into by the Selection Committee. Therefore, the selection of Shri Anwar Pasha was invalid.
25. It was found by the Selection Committee that the Annual Confidential Reports of this Officer for these two years were not written within the time limit prescribed as required under Rule 8 of the Rules of 1994. But it was pointed out that Rule 8 of the Rules of 1994 was amended in 1999 and the time limit prescribed was done away with retrospective effect. It was provided as per clause (b) of Rule 5 of the amending Rules of 1999 that the reports written or reviewed or accepted in accordance with the 1994 Rules as amended in the year 1999 shall be deemed to be valid for the purpose of that rule. But in view of the retrospective amendment of the Rules of 1999, the time limit having been done away with the reports could have been taken into consideration but it was further pointed out that the Rules of 1994 were repealed in 2000 and the provisions of Karnataka Civil Services (Performance Reports) Rules, 2000 (hereinafter to be referred to as the Rules of 2000) came into force.
26. Rule 13 of the Rules of 2000 provided that the repeal shall not affect the previous operation of the 1994 Rules or anything duly done or suffered there under or affect any right, liability or obligation acquired, accrued or incurred under those Rules. Therefore, so far as the annual confidential reports in respect of Shri Anwar Pasa which were written after the period of two years should not have been taken into consideration by the Selection Committee, does not survive because the Rules of 2000 repealed the Rules of 1994 and consequential amendment of Rules of 1999 was done away with. Therefore, the reports for the years 1998-99 and 1999-2000 cannot be taken away and these two ACRs cannot be ignored and it has been rightly not ignored 314 OA No. 170/00961/2019 & Ors/CAT/BANGALORE by the Selection Committee. More so, if the ACRS are not written or reviewed, then the incumbent is not responsible for it and why should he suffer on account of that. The authority who is under obligation to complete the formalities having failed to do so till the lapse of time why the incumbent should be punished. We fail to appreciate the submissions of the parties before the Tribunal and the view taken by the Tribunal also.
27. It was also pointed that the operation of the Rules of 1999 was stayed by the Tribunal, that may be so. But even thereafter also when the Rules of 2000 have repealed the Rules of 1994, then what turns on the stay order granted by the Tribunal and we cannot hold the incumbent responsible for it and deprive him the due consideration if there is failure on the part of the officers to discharge their duties in writing the ACRs, the incumbent should not be allowed to suffer. Therefore, we are of opinion that it is not a case in which there was any statutory breach of Rules committed by the Selection Committee in taking into consideration the ACRs of Shri Anwar Pasha.
28. In the case of another candidate i.e. Shri K.Ramanna Naik, his confidential reports for the years 2000-2001 and 2002-2002 were not written in time in terms of Rule 8 of the Rules of 1994. Therefore, special reports were obtained, that too is also covered by the Karnataka Civil Services (Performance Reports) (Amendment) Rules, 1996. Rule 11-A says that when performance reports in respect of officers are not available for one or more years, the appointing authority, for the reasons to be recorded in writing, may direct the concerned reporting officer or the reviewing authority to prepare and submit the report within a specified time for the entire period or for each year for which the report was not written. There again the question is failure on the part of the reporting officer or the reviewing authority not writing the report of the officer for which the officer cannot be made to suffer. Therefore, in this background, provisions have been made for special reports and in the administrative jurisprudence special reports can be sought for in respect of any officer whenever his case comes for consideration and if the Selection Committee wants to have the up to date report of that incumbent. It is the established practice to call for such kind of special reports. The idea is that for not reporting the annual confidential reports of the incumbent, why the incumbent should be made to suffer. Therefore, the Selection Committee or the concerned authority can always ask for the annual confidential reports which were not written for a particular year by the reporting authority or by the reviewing authority or in some cases it can also seek a special 315 OA No. 170/00961/2019 & Ors/CAT/BANGALORE report. Such practice cannot be said to be unusual practice in administrative jurisprudence. In the present case, it appears that a special report in respect of Sh. K. Ramanna Naik was obtained and that was considered by the Selection Committee. Therefore, this procedure adopted by the Selection Committee cannot be found to be arbitrary or in any way discriminatory. Consideration of both these Officers cannot be faulted on that ground.
29. It is also contended that the marking given by the Selection Committee was arbitrary. The grievance was that confidential report of Shri S.Daya Shankar for the year 2000-2001 was not available and in case of Sri R. Pramapriya, the confidential report for the year 1997-98 was not available. Yet the reports of Shri S.Daya Shankar was assessed to be outstanding and Shri R.Ramapriya was assessed to be very good without there being any basis for it. This was found by the Tribunal to be patently arbitrary. It is the selection process and what prevailed with the Committee after review of the annual confidential reports of all these officers cannot be dilated in writing. When the Selection Committee sits and considers the candidature of both the officers and in case of both the officers, looking at the 5 years annual confidential reports, one is found to be over all outstanding and the other is found to be over all very good, this marking of the Selection Committee cannot be interfered with in extraordinary jurisdiction or even by the Tribunal.
30. We fail to understand how the Tribunal can sit as an appellate authority to call for the personal records and constitute selection committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the Courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the over all view of the ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts started sitting as Selection Committee or act as an appellate authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions. Our attention was invited to a decision of this Court in R.S.Dass (supra)[ 1986 (Supp.) SCC 617] wherein at paragraph 28 it was held as follows:
"It is true that where merit is the sole basis of promotion, the power of selection becomes wide and liable to be abused with 316 OA No. 170/00961/2019 & Ors/CAT/BANGALORE less difficulty. But that does not justify presumption regarding arbitrary exercise of power. The machinery designed for preparation of Select List under the regulations for promotion to All India Service, ensures object and impartial selection. The Selection Committee is constituted by high ranking responsible officers presided over by Chairman or a Member of the Union Public Service Commission. There is no reason to hold that they would not act in fair and impartial manner in making selection. The recommendations of the Selection Committee are scrutinized by the State Government and if it finds any discrimination in the selection it has power to refer the matter to the Commission with its recommendations. The Commission is under a legal obligation to consider the views expressed by the State Government along with the records of officers, before approving the Select List. The Selection Committee and the Commission both include persons having requisite knowledge, experience and expertise to assess the service records and ability to adjudge the suitability of officers. In this view we find no good reasons to hold that in the absence of reasons the selection would be made arbitrary. Where power is vested in high authority there is a presumption that the same would be exercised in a reasonable manner and if the selection is made on extraneous considerations, in arbitrary manner the courts have ample power to strike down the same and that is an adequate safeguard against the arbitrary exercise of power."
31. Our attention was invited to a decision of this Court in Union Public Service Commission v. Hiranyalal Dev &Ors etc.[(1988) 2 SCC 242] wherein it was held as follows:
"The mere fact that the Selection Committee erred in taking into account the non-existent adverse remarks does not necessarily mean that the respondent should have been categorized or considered as very good vis-`-vis others who were also in the field of choice. How to categorize in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. This function had to be discharged by the Selection Committee by applying the same norm and tests and the selection was also to be made by the Selection Committee as per the relevant rules. The powers to make selection were vested unto the Selection Committee under the relevant rules and the Tribunal could not have played the role which the Selection Committee had to play by making conjectures and surmises. The proper order for the Tribunal to pass under the circumstances was to direct the Selection Committee to reconsider the merits of the respondent 317 OA No. 170/00961/2019 & Ors/CAT/BANGALORE vis-`-vis the official who was junior to him. The jurisdiction of the Supreme Court under Article 136 in this respect is, however, wider and cannot be equated with that of the Tribunal."
32. Our attention was invited to a decision of this Court in DalpatAbasahebSolunke&Ors. V. Dr.B.S.Mahajan&Ors. [(1990) 1 SCC 305] wherein it was observed as follows:
"It is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. In the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."
33. Similarly in National Institute of Mental Health and Neuro Sciences v. Dr.K.Kalyana Raman &Ors. [ 1992 Supp. (2) SCC 481], this Court held that the expert committee finding should not be lightly inferred. It was held as follows :
"The function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. Where selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility and there is no rule or regulation brought to the notice of the Court requiring the Selection Committee to record reasons, the Selection Committee is under no legal obligation to record reasons in support of its decision of selecting one candidate in preference to another. Even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement."
34. Our attention was invited to a decision of this Court in P.M.Bayas v. Union of India &Ors. [(1993) 3 SCC 319]. In this case with regard to the IAS (Recruitment) Rules, 1954 which contemplated that special cases from among persons and special circumstances occurring in the rules could justify the 318 OA No. 170/00961/2019 & Ors/CAT/BANGALORE selection of the incumbents or not, in that context, their Lordships held as follows:
"We are satisfied that there were special circumstances before the State Government to make recruitment under the Regulations. In the face of clear pleadings on the record the Tribunal was not justified in holding that there as no material on the record to show the existence of special circumstances. The Tribunal was wholly unjustified in asking the Central Government to show the existence of special circumstances in terms of Rule 8(2) of the Rules. As interpreted by us the scheme of the Rules and the Regulations clearly show that it is the State Government which has to be satisfied regarding the existence of special circumstances."
35. Our attention was invited to a decision of this Court in Anil Katiyar (Mrs.) v. Union of India &Ors. [(1997) 1 SCC 280], it was observed as follows:
"The question is whether the action of the DPC in grading appellant as very good can be held to be arbitrary. Shri G.L.Sanghi, the learned Senior Counsel appearing for the Union Public Service Commission, has placed before us the confidential procedure followed by the DPCs in the Union Public Service Commission for giving overall gradings, including that of outstanding, to an officer. Having regard to the said confidential procedure which is followed by the Union Public Service Commission, we are unable to hold that the decision of the DPC in grading the appellant as very good instead of outstanding can be said to be arbitrary. No ground is, therefore, made out for interference with the selection of Respondent 4 by the DPC on the basis of which he has been appointed as Deputy Government Advocate. But, at the same time, it must be held that the Tribunal was in error in going into the question whether the appellant had been rightly graded as outstanding in the ACRs for the years 1990-91 and 1991-92. The observations of the Tribunal that out of the two outstanding gradings given to the appellant one outstanding grading does not flow from various parameters given and the reports entered therein, cannot, therefore, be upheld...."
36. Therefore, in view of catena of cases, Courts normally do not sit in the court of appeal to assess the ARCs and much less the Tribunal can be given this power to constitute an independent Selection Committee over the statutory Selection Committee. The guidelines have already been given by the Commission as to 319 OA No. 170/00961/2019 & Ors/CAT/BANGALORE how the ACRs to be assessed and how the marking has to be made. These guidelines take care of the proper scrutiny and not only by the Selection Committee but also the views of the State Government are obtained and ultimately the Commission after scrutiny prepares the final list which is sent to the Central Government for appointment. There also it is not binding on the Central Government to appoint all the persons as recommended and the Central Government can withhold the appointment of some persons so mentioned in the select list for reasons recorded. Therefore, if the assessment of ACRs in respectof Shri S.Dayashankar and Shri R.Ramapriya should have been made as outstanding or very good it is within the domain of the Selection Committee and we cannot sit in the court of appeal to assess whether Shri R.Ramapriya has been rightly assessed or Shri Dayashankar has been wrongly assessed. The overall assessment of ACRs of both the Officers were taken; one was found to be outstanding and the second one was found to be very good. This assessment cannot be made subject of Courts or Tribunals scrutiny unless actuated by mala fide.
37. In the case of Shri S.B.Kolhar, Shri R.S.Phonde and Shri Puttegowda, the assessment of the reporting officers and the reviewing officers in the State have been found to be outstanding. But the Selection Committee downgraded the assessment to very good and this has provided grounds to the Tribunal to interfere with the selection of others. The Selection Committee normally abides by the assessment made by the reporting officer and the reviewing authority. But the Selection Committee is not powerless. After reviewing the candidates performance, the Selection Committee can certainly make its own assessment. The guidelines which have been issued by the Commission also enables the Selection Committee to assess the remarks made by the reporting officer or the reviewing officer and after taking into consideration various factors like the meritorious work done or any punishment or adverse remarks made or subsequently expunged on representation can review the assessment about the candidates. Such review of the assessment is fully within the competence of the Selection Committee and in this connection the observations of this Court may be relevant in Ramanand Prasad Singh &Anr. V. Union of India &Ors. Etc. [(1996) 4 SCC 64], which reads as under :
"The Committee applies its mind to the service records and makes its own assessment of the service records of the candidates marking them as outstanding, very good, good and so on. The selection Committee does not necessarily adopt the 320 OA No. 170/00961/2019 & Ors/CAT/BANGALORE same grading which is given by the Reporting/ Reviewing Officer in respect of each of the candidates. In fact the Selection Committee makes an overall relative assessment of the confidential report dossiers of the officers in the zone of consideration. Thus, it does not evaluate the confidential report dossier of an individual in isolation. It is after this comparative assessment that the best candidates are put in the Select List."
38. Our attention was invited to a decision of this Court in UPSC v. K.Rajaiah&Ors. [ (2005) 10 SCC 15]wherein it has been held as follows:
"That being the legal position, the Court should not have faulted the so-called down gradation of the first respondent for one of the years. Legally speaking, the term downgradation is an inappropriate expression. The power to classify as outstanding, very good , good and unfit is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but, for good reasons, the Selection Committee can evolve its own classification which may be at variance with the gradation given in the ACRs. That is what has been done in the instant case in respect of the year 1993-94. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of gradation at variance with that of the State Government, it would be desirable to record reasons. But having regard to the nature of the function and the power confided to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Governments decision."
Therefore, the view taken by the High Court is correct that it is always within the power of the Selection Committee to record its own assessment about the selection which may be at variance with that of the reporting officer or reviewing officer.
39. It was also pointed out that in the case of Shri N. Sriraman and Shri K.Ramana Naik, the Selection Committee downgraded their reports from outstanding to very good yet they were selected. Similar is the case with Sri K.L.Lokanatha who has not been selected. Like wise the Selection Committee upgraded the assessment for the year 2001-02 from very good to outstanding 321 OA No. 170/00961/2019 & Ors/CAT/BANGALORE yet he could not be selected. Therefore, this is also the process of selection and the Selection Committee constituted by the Commission and headed by the Member of the Commission, we have to trust their assessment unless it is actuated with malice or apparent mistake committed by them. It is not in the case of pick and choose, while selection has been made rationally. The selection by expert bodies unless actuated with malice or there is apparent error should not be interfered with. Lastly, the High Court considered the case of the two candidates who were eliminated by the Selection Committee and their cases were not sent to the Commission for selection to the I.A.S.cadre. The High Court found that this was the selection process by the Screening Committee headed by the Chief Secretary and these persons were not found more meritorious to be recommended for appointment. This assessment of the Screening Committee was found by the High Court to be proper and there was nothing on record to show that the candidates who were short-listed were not meritorious.
40. As a result of our above discussion, we find that there is no merit in these appeals and consequently, the appeals are dismissed. There would be no order as to costs.
Contempt Petition ) No.131 of 2006:
41. In view of the order passed in the civil appeals, we find no merit in the contempt petition and the same is dismissed."
95. The Hon'ble Apex Court held that allegations of malafides is usually raised by an interested party and therefore Court should not draw any conclusion unless allegations are substantiated beyond doubt.
96. The applicants would point out that:
1) None of the allegations against any of the selected candidates, except the 3 who had been implicated for different reasons, is specific or focused.
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2) No evidence, other than vague assertions, is available against any of the applicants.
3) The repeated re evaluation of their papers, particularly in view of the climate generated by the incarceration of the KPSC Chairman, Members, Secretary and other officials created a climate of fear in the minds of all examiners that none could be expected to function independently and with integrity.
4) Even in spite of these, no kind of evidence is available to assail the selection of the applicants.
5) None of the applicants have been given an opportunity of pointing out which of their answers were wrong and to which unlawfully marks have been awarded.
6) No opportunity was ever given to them by pointing out any infraction which they might have committed and not answer is sought from any of them by the KPSC.
7) The KPSC would say that only because of the pressure of contempt proceedings against them that they have acted in such a fashion.
8) But the KPSC would say that they have followed the same methodology and procedure from 1975 to 2005. Therefore, what is so special about the selection made only in 1998.
97. They would say that therefore the irresistible conclusion which can be drawn is that, since the allegations are not substantiated, and even going by the earlier contention of the petitioners in the PIL, they had 323 OA No. 170/00961/2019 & Ors/CAT/BANGALORE only expressed doubts. At no point of time can doubt be considered as allegation proven.
98. They also rely on Ramanand Prasad Singh Vs. Union of India reported in (1996) 4 SCC 64, 2) UPSC Vs. K. Rajaiah reported in (2005) 10 SCC 15, 3) Surya Dev Rai Vs. Ram Chander Rai reported in (2003) 6 SCC 675, 4) R.S. Das Vs. Union of Indiareported in (1986) Supp SCC 617.
99. The applicants would say that the KPSC, under no circumstances, could have held that applicants are diminished in any manner without giving them an opportunity of being heard. They rely on the decision of the Hon'ble Apex Court inP.M. Bayes Vs. Union of India reported in(1993) 3 SCC 319, 2) UPSC Vs. Hiranyalal Devreported in (1988) 2 SCC 242, 3) DalpatAbasahebSolunke Vs. Dr. B.S. Mahajanreported in (1990) 1 SCC 305, 4) National Institute of Mental Health and Neuro Sciences Vs. Dr. K. Kalyana Ramanreported in 1992 Supp (2) SCC 481.
100. They would say that even the petitioners in the PIL had not made any specific allegations against any of the applicants other than saying that they doubt the entire process. The Hon'ble Apex Court of India in Ashok Kumar Pandey Vs. State of West Bengal reported in (2004) 3 SCC 349 have stated that "necessityof disclosure of sources of 324 OA No. 170/00961/2019 & Ors/CAT/BANGALORE information and the roving inquiry inthe light of inadequate information is not permissible." We quote from the above judgment:
PETITIONER:
Ashok Kumar Pandey RESPONDENT:
The State of West Bengal CASE NO.:
Writ Petition (Crl.) 199 of 2003 DATE OF JUDGMENT: 18/11/2003 BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
ARIJIT PASAYAT, J This petition under Article 32 of the Constitution of India, 1950 (in short 'the Constitution') has been filed purportedly in public interest. The prayer in the writ petition is to the effect that the death sentence imposed on one Dhananjay Chatterjee @ Dhana (hereinafter referred to as 'the accused') by the Sessions Court, Alipur, West Bengal, affirmed by the Calcutta High Court and this Court, needs to be converted to a life sentence because there has been no execution of the death sentence for a long time. Reliance was placed on a Constitution Bench decision of this Court in Smt. Triveniben vs. State of Gujarat, (1989 (1) SCC 678).
2. According to the petitioner, he saw a news item in a TV channel wherein it was shown that the authorities were unaware about the non-execution of the death sentence and, therefore, condemned prisoner, the accused has suffered a great degree of mental torture and that itself is a ground for conversion of his death sentence to a life sentence on the basis of ratio in Triveniben's case (supra). It needs to be noted here that prayer for conversion of death sentence to life sentence has already been turned down by the Governor of West Bengal and the President of India in February 1994 and June 1994 respectively as stated in the petition. When the matter was placed for admission, we asked the petitioner who appeared in-person as to
325 OA No. 170/00961/2019 & Ors/CAT/BANGALORE what was his locus standi and how a petition under Article 32 is maintainable on such nature of information by which he claims to have come to know of it. His answer was that as a public spirited citizen of the country, he has a locus to present the petition and when the matter involved life and liberty of a citizen, this Court should not stand on technicalities and should give effect to the ratio in Triveniben's case (supra). There has been violation of Article 21 of the Constitution and the prolonged delay in execution of sentence is violative of Article 21, so far as the accused is concerned.
3. Reliance was also placed on few decisions, for example, Sunil Batra (II) vs. Delhi Administration, (1980 (3) SCC 488); S.P. Gupta vs. Union of India, (1981 (Supp.) SCC 87); Daya Singh vs. Union of India, (1991 (3) SCC 61) and Janata Dal vs. H.S. Choudhary, (1992 (4) SCC 305) to substantiate the plea that the petitioner had locus standi to present the petition in public interest and this was a genuine public interest litigation.
4. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation" or the latest trend "paise income litigation". If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by this Court in The Janta Dal case (supra) and KaziLhendupDorji vs. Central Bureau of Investigation, (1994 Supp (2) SCC 116). A writ petitioner who comes to the Court for relief in public interest must come not only 326 OA No. 170/00961/2019 & Ors/CAT/BANGALORE with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. See Ramjas Foundation vs. Union of India, (AIR 1993 SC 852) and K.R. Srinivas vs. R.M. Premchand, (1994 (6) SCC 620).
5. It is necessary to take note of the meaning of expression 'public interest litigation'. In Strouds Judicial Dictionary, Volume 4 (IV Edition), 'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
6. In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
"Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
7. In Janata Dal case (supra) this Court considered the scope of public interest litigation. In para 52 of the said judgment, after considering what is public interest, has laid down as follows :
"The expression 'litigation' means a legal action including all proceedings therein initiated in a Court of law for the enforcement of right or seeking a remedy. Therefore, lexically the expression "PIL" means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."
8. In paras 60, 61 and 62 of the said judgment, it was pointed out as follows:
"Be that as it may, it is needless to emphasis that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to 327 OA No. 170/00961/2019 & Ors/CAT/BANGALORE any specific remedy sought for has to be primarily ascertained at the threshold."
9. In para 96 of the said judgment, it has further been pointed out as follows:
"While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that Courts should not allow its process to be abused by a mere busy body or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration."
10. In subsequent paras of the said judgment, it was observed as follows:
"It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have as locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly a vexatious petition under the colour of PIL, brought before the Court for vindicating any personal grievance, deserves rejection at the threshold".
11. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievance go unnoticed, un- represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters - government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized 328 OA No. 170/00961/2019 & Ors/CAT/BANGALORE collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the court never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system.
12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
13. The Council for Public Interest Law set up by the Ford Foundation in USA defined the "public interest litigation" in its report of Public Interest Law, USA, 1976 as follows:
329 OA No. 170/00961/2019 & Ors/CAT/BANGALORE "Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others."
14. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.
15. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra vs. Prabhu, (1994 (2) SCC 481), and Andhra Pradesh State Financial Corporation vs. M/s GAR Re-Rolling Mills and Anr., (AIR 1994 SC 2151). No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao vs. Mr. K. Parasaran, (1996) 7 JT 265). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.
330 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr.DuryodhanSahu and Ors. v. Jitendra Kumar Mishra and Ors. (AIR 1999 SC 114), this Court held that in service matters PILs should not be entertained, the inflow of so- called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.
17. Coming to the facts of the case, it has not been shown as to how and in what manner the accused, condemned prisoner is handicapped in not seeking relief if any as available in law. The matter pertains to something to happen or not at Kolkatta and what was the truth about the news or cause for the delay, even if it be is not known or ascertained or even attempted to be ascertained by the petitioner before approaching this Court. To a pointed query, the petitioner submitted that the petitioner "may not be aware" of his rights, that except the news he heard he could not say any further and "the respondent-State may come and clarify the position. This petition cannot be entertained on such speculative foundations and premises and to make a roving enquiry. May be at times even on certain unconfirmed news but depending upon the gravity or heinous nature of the crime alleged to be perpetrated which would prove to be obnoxious to the avowed public policy, morals and greater societal interests 331 OA No. 170/00961/2019 & Ors/CAT/BANGALORE involved, Courts have ventured to intervene but we are not satisfied that this could be one such case, on the facts disclosed. It is reliably learnt that a petition with almost identical prayers was filed before the Calcutta High Court by relatives of the accused and the same has been recently dismissed by the High Court.
18. In Gupta's case (supra) it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. He has also left the following note of caution: (SCC p.219, para
24) "But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective."
19. In State of H.P. vs. A Parent of a Student of Medical College, Simla and Ors. (1985 (3) SCC 169), it has been said that public interest litigation is a weapon which has to be used with great care and circumspection.
20. Khalid, J. in his separate supplementing judgment in Sachidanand Pandey vs. State of W.B., (1987 (2) SCC 295,
331) said:
"Today public spirited litigants rush to courts to file cases in profusion under this attractive name. They must inspire confidence in courts and among the public. They must be above suspicion. (SCC p.331, para 46) *** Public interest litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves 332 OA No. 170/00961/2019 & Ors/CAT/BANGALORE administrative and executive functions. (SCC p.334, para
59) *** I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self- imposed restraint on public interest litigants." (SCC p.335, para 61)"
21. Sabyasachi Mukharji, J. (as he then was) speaking for the Bench in RamsharanAutyanuprasi vs. Union of India, (1989 Supp (1) SCC 251), was in full agreement with the view expressed by Khalid, J. in Sachidanand Pandey's case (supra) and added that 'public interest litigation' is an instrument of the administration of justice to be used properly in proper cases.(See also separate judgment by Pathak, J. (as he then was) in Bandhua Mukti Morcha vs. Union of India, (1984 (3) SCC 161).
22. Sarkaria, J. in JasbhaiMotibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed &Ors. (1976 (1) SCC 671) expressed his view that the application of the busybody should be rejected at the threshold in the following terms: (SCC p. 683, para 37) "It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories : (i) 'person aggrieved'; (ii) 'stranger';
(iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold."
23. Krishna Iyer, J. in Fertilizer Corporation Kamgar Union (Regd.) Sundri and Ors. v. Union of India, (1981 (1) SCC 568) in stronger terms stated: (SCC p.589, para 48) 333 OA No. 170/00961/2019 & Ors/CAT/BANGALORE "If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him."
24. In ChhetriyaPardushan Mukti Sangharsh Samiti v. State of U.P., (1990 (4) SCC 449), Sabyasachi Mukharji, C.J. observed:
(SCC p.452, para 8) "While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior court preventing other genuine violation of fundamental rights being considered by the court."
25. In Union Carbide Corporation v. Union of India, (1991 (4) SCC 584, 610), Ranganath Mishra, C.J. in his separate judgment while concurring with the conclusions of the majority judgment has said thus: (SCC p.610, para 21) "I am prepared to assume, nay, concede, that public activists should also be permitted to espouse the cause of the poor citizens but there must be a limit set to such activity and nothing perhaps should be done which would affect the dignity of the Court and bring down the serviceability of the institution to the people at large. Those who are acquainted with jurisprudence and enjoy social privilege as men educated in law owe an obligation to the community of educating it properly and allowing the judicial process to continue unsoiled."
26. In Subhash Kumar v. State of Bihar, (1991 (1) SCC 598) it was observed as follows:
"Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Article 32, are entertained it would amount to abuse of process of the court, preventing speedy remedy to other genuine petitioners from this Court. Personal interest cannot be enforced through the process of this Court under Article 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental 334 OA No. 170/00961/2019 & Ors/CAT/BANGALORE rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Court under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is the duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation".
27. In the words of Bhagwati, J. (as he then was) "the courts must be careful in entertaining public interest litigations" or in the words of Sarkaria, J. "the applications of the busybodies should be rejected at the threshold itself" and as Krishna Iyer, J. has pointed out, "the doors of the courts should not be ajar for such vexatious litigants".
28. It will be appropriate at this stage to take note of what this Court felt when dealing with petitions under Article 32 with somewhat similar issues. The petitioner in one case filed writ petition under Article 32 of the Constitution challenging the order of this Court whereby it had affirmed the conviction of two accused and confirmed the death sentence for reasons stated in its judgment in State of Maharashtra v. Sukhdeo Singh (AIR 1992 SC 2100).
29. The writ petition was dismissed holding that third party has no locus standi to challenge the conviction by filing the writ petition under Article 32 of the Constitution. (See Simranjit Singh Mann v. Union of India (AIR 1993 SC 280)
30. The petitioner there claimed to be a friend of the convicts, and it was held that he has no locus standi to move the Court under Article 32 of the Constitution. Unless the aggrieved party is a minor or an insane or one who is suffering from any other disability which the law recognizes as sufficient to permit another person e.g., next friend, to move the Court on his behalf; for example, see Sections 320(4-a), 330(2) read with Sections 335(1)(b) and 339 of the Code of Criminal Procedure, 1973 (in short the 'Code'). Ordinarily the aggrieved party has the right to seek redress. Admittedly, it was not the case of the petitioner that the two convicts are minors or insane persons but had argued that since they were suffering from an acute obsession such obsession amounts to a legal disability which permits the next friend to initiate proceedings under Article 32 of the Constitution.
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31. A mere obsession based on religious belief or any other personal philosophy cannot be regarded as a legal disability of the type recognized by the Code or any other law which would permit initiation of proceedings by a third party, be he a friend. It must be remembered that the repercussions of permitting such a third party to challenge the findings of the Court can be serious, e.g., in the instant case, itself the co-accused who have been acquitted by the Designated Court and whose acquittal has been confirmed by this Court would run the risk of a fresh trial and a possible conviction.
32. Similar view was expressed in Karamjeet Singh v. Union of India (AIR 1993 SC 284).
33. It was noted that Article 32 which finds a place in Part III of the Constitution entitled "fundamental rights" provides that right to move this Court for the enforcement of the rights conferred in that part is guaranteed. It empowers this Court to issue directions or orders or writs for the enforcement of any of the fundamental rights. The petitioner did not seek to enforce any of his fundamental rights nor did he complain that any of his fundamental right was violated. He sought to enforce the fundamental rights of others, namely, the two condemned convicts who themselves did not complain of their violation. Ordinarily, the aggrieved party which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which the law recognizes as sufficient to permit another person, e.g. next friend, to move the court on his behalf.
34. Unless an aggrieved party is under some disability recognized by law, it would be unsafe and hazardous to allow any third party be a member of the Bar to question the decision against third parties.
35. Neither under the provisions of the Code nor under any other statute is a third party stranger permitted to question the correctness of the conviction and sentence.
36. Based on the above backgrounds, we do not think this a fit case which can be entertained and that too, under Article 32 of the Constitution and is accordingly dismissed, but without costs."
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101. The applicants submits that they were selected and appointed only after the Division Bench of the Hon'ble High Court had considered all the issues available after hearing several matters together and directed that the KPSC should follow to the letter the scaling down and moderation followed by the UPSC and only thereafter that they were selected and appointed in the year 2006. Since they have rightly and on the basis of an order passed by the Division Bench of the Hon'ble High Court been appointed, if any infraction is shown in the procedure followed by the KPSC in implementation of the first instance order of the Hon'ble High Court, a review or a clarification application should lie to that Bench as only that Bench could have passed an order clarifying its position. The applicants submit that this has resulted in grave injustice to them.
102. Relating to the No. 6 direction issued by the Hon'ble High Court in the second instance judgment, because of the presence of the No. 6 direction that they be given opportunity of being heard, without such an opportunity of being heard is afforded to them and an order passed therein, it cannot be said that the second instance judgment was complete, because it has left a significant issue unanswered as to the involvement and diminishment of the applicants from a position of merit to that of obscurity. They rely on a decision of the Hon'ble Apex Court in A.M.S. Sushanth and Others VS. M. Sujatha and Others reported in (2000) 10 SCC 197 which held that "theprinciples of natural 337 OA No. 170/00961/2019 & Ors/CAT/BANGALORE justice demanded that any person who was likely to be adversely affected by the order should have been given opportunity of being heard." Therefore, since the Hon'ble Apex Court had clearly said that without being heard no diminishment shall be brought on the applicants, the petitioners are hunting the applicants like wild animals based on extraneous consideration.
103. They would also rely on another judgment of the Hon'ble Apex Court in Sunil Kumar and others Vs. Bihar Public Service Commission and Others reported in (2016) 2 SCC 495. This is in relation to the procedure to be adopted by the KPSC. It is an admitted fact that from 1975 to 2005 at least the same procedure was followed by the KPSC and it is to be noted in this connection the petitioners in the second instance case had alleged lapses in procedure and assumed lapse in implementation of the order of the Hon'ble High Court in the first instance. The Hon'ble Apex Court in the case above cited said there cannot be any plea of malafides against the PSC as PSC had uniformly applied principles to all candidates without any discrimination. We quote from the above judgment:
"(2016) 2 Supreme Court Cases 495 (BEFORE RANJAN GOGOI AND N.V. RAMANA,JJ.) CIVIL APPEAL NOS.8606-8610 OF 2015, decided on October 14, 2015 SUNIL KUMAR & ORS. ...APPELLANTS VERSUS THE BIHAR PUBLIC SERVICE COMMISSION & ORS. ...RESPONDENTS 338 OA No. 170/00961/2019 & Ors/CAT/BANGALORE JUDGMENT RANJAN GOGOI, J.- Leave granted.Applications for Impleadment/ Intervention are allowed.
2. The refusal of the High Court to interfere with the result of the 53rd to 55th Combined (Mains) Competitive Examinations, 2011 held by the Bihar Public Service Commission (hereinafter referred to as "the Commission") in May-June, 2012 is the subject matter of challenge in the present appeals.
3. The principal basis on which interference of the High Court was sought is that in finalizing the results of the Examination the Commission had moderated the marks awarded by the examiners who had scrutinized the answer-sheets of the candidates instead of scaling down the said marks which process was required to be undergone in view of the fact that the examinations, so far as the optional papers are concerned, were in different subjects. It is contended that the course adopted was contrary to the earlier order of the High Court dated 26th August, 2011 passed in a proceeding registered and numbered as C.W.J.C. No.3892 of 2011 besides being contrary to the law laid down by this Court in Sanjay Singh and Another Vs. U.P. Public Service Commission.
4. To appreciate the first contention advanced the operative part of the order dated 26th August, 2011 passed by the High Court in the earlier writ petition i.e. C.W.J.C. NO.3892 of 2011 may be reproduced hereinbelow:
"16. In the result, the writ petition is allowed. Respondent Nos. 2 and 3 would be well-advised to frame Rules, may be after supplanting the existing Rules with respect to conduct of examinations, incorporating therein the system of moderation, as well as the system of scaling of raw marks. The Commission shall draw guidelines from the judgment of the Supreme Court in Sanjay Singh Vs. U.P.PSC (supra), as well as the Rules of the Union Public Service Commission, and other Public Service Commissions, etc. This Court will be pleased if the entire process is completed within a period of six months from today. Till then, the judgment of the Supreme Court in Sanjay Singh (supra), will guide the affairs of the Commission, with respect to all the examinations where the candidate has the choice of 339 OA No. 170/00961/2019 & Ors/CAT/BANGALORE optional subjects, in so far as these two concepts are concerned."
5. It is contended that the method adopted i.e. moderation is in clear breach of above directions issued by the High Court in its earlier order which is also between the same parties. No deviation, therefrom, by the Public Service Commission was permissible.
6. Insofar as the decision in Sanjay Singh (supra) is concerned, it is urged that this Court had clearly and categorically held the system of moderation is applicable only to cases where the candidates take a common examination i.e. where there are no optional subjects and all the papers in which the candidates appear are the same. In a situation where the subjects are different, according to the learned counsel, it has been held in Sanjay Singh (supra) that it is the scaling method which has to be upheld and in such situations the system of moderation would not be relevant. As the Combined Civil Services Examination held by the Public Service Commission involved taking of examination by the candidates in different subjects/papers, the results declared are vitiated as the same has been finalized by following the moderation method. This, in short, is the plea advanced on behalf of the appellants.
7. In reply, it is urged on behalf of the Commission that the format of the Civil Services Examination is covered by the Bihar Civil Service (Executive Branch) and the Bihar Junior Civil Service (Recruitment) Rules, 1951. Appendix 'D' thereto lays down the syllabus for the combined competitive examination. It is urged that apart from 4 (four) compulsory papers, the optional papers are divided into four categories/groups i.e. Groups 'A', 'B', 'C' and 'D'. While Group 'A' deals with Literature, Group 'B' deals broadly with Humanities subjects whereas Group 'C' deals with Law and Public Administration; Group 'D' deals with Science papers/subjects. Under the Rules, apart from the compulsory papers, a candidate has to take three optional papers out of which not more than two papers can be from any one single group. It is pointed out that the above position must be kept in mind while scrutinizing the action taken by the Commission after the High Court had passed the order dated 26th August, 2011 in C.W.J.C. No.3892 of 2011. It is urged that after the said order was rendered the Commission had sought information from the Union Public Service Commission as well as from certain State Public Service Commissions like Karnataka and Maharashtra. The entire issue including the information received from the 340 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Union Public Service Commission and the State Public Service Commissions, as referred to above, was discussed in detail in a meeting of the Commission held on 15th January, 2013 and a resolution was adopted that for evaluation of the answer-sheets of the Combined Competitive Examination so as to achieve uniformity in the results, the following procedure would be adopted.
"(i) The Chief Examiner acts as a coordinator and guide for the Examiners working under him and is also responsible for objectivity and uniformity in evaluation done by different Examiners.
(ii) Before the start of evaluation of any subject/ paper, the Chief Examiner/ Examiners shall hold a in-depth, detailed and minute discussion with the Examiners with regard to all questions of the question paper and with a purpose of having uniformity in evaluation, a clear-cut standard of evaluation shall be explained with regard to through and prescribed answer of each question and process of marking.
(iii) The Chief Examiner shall must examine all answer-
books getting marks of more than 60% (sixty percent) and below 30% (thirty percent). At least 15% of evaluated answer-books shall be examined by him.
8. After due consideration of above facts, it is the opinion of the Commission that the uniformity in evaluation has been ensured by adopting the method of moderation in the evaluation of answer-books of different subjects/papers of 53rd to 55th Combined Joint (Main) Competitive Examinations. Therefore, further actions be taken for publication of result of the said examinations."
8. It may be also pointed out in this regard that the gist of the information received from the Union Public Service Commission and the State Public Service Commissions have been recorded in the said resolution which is, inter alia, to the effect that neither the Commission nor the Karnataka or Maharashtra Public Service Commissions had adopted or adopts the system of scaling.
9. Insofar as the order of the High Court dated 26th August, 2011 in C.W.J.C. NO.3892 of 2011 is concerned, it is pointed out that with regard to non-implementation of the said directions a contempt petition was filed before the High Court which was dismissed by order dated 16th October, 2012. It is urged that on a cumulative consideration of the format of the examination; the 341 OA No. 170/00961/2019 & Ors/CAT/BANGALORE practice followed by the Union Public Service Commission and different State Public Service Commissions and other relevant facts the Bihar Public Service Commission, by its resolution dated 15th January, 2013, had taken a conscious decision details of which have been extracted above. The Commission also specifically denies that this Court in Sanjay Singh (supra) had laid down any principle of law to the effect that in a public examination involving different subjects the scaling method has to be necessarily adopted to bring uniformity in the results. It is pointed out that this Court had merely observed that scaling is one of the available methods which could be applied in such situations i.e. where the examination is in different subjects. It is also pointed out that in Sanjay Singh (supra) the difficulties and preconditions necessary in the practical application of the principle of scaling down had also been noticed. On the basis of the said facts, it is submitted that there will be no scope for this Court to understand that any binding principle, direction or guidelines has been laid down in Sanjay Singh (supra) so as to bind the Commission to any specific course of action while conducting a public examination, the format of which prescribes different subjects.
10. It is further contended on behalf of the Commission that being an autonomous body the Commission would be authorized and competent to take its independent decision, of course, having due regard to judicial directions and pronouncements and so long such decisions are taken bona fide and are not arbitrary the scope of judicial review to scrutinize the decisions of the Commission would be circumscribed. In this regard it is also pointed out that, admittedly, it is not the case of the appellants - writ petitioners that any mala fide is attributable to the Public Service Commission in the conduct of examination and the declaration of the results.
11. Having considered the rival submissions advanced before us, we are of the view that the question that calls for an answer in the present case is whether this Court in Sanjay Singh (supra) had laid down any principle or direction regarding the methodology that has to be adopted by the Commission while assessing the answer-scripts of the candidates in a public examination and specifically whether any such principle or direction has been laid down governing public examinations involving different subjects in which the candidates are to be tested. Closely connected with the aforesaid question is the extent of the power of judicial review to scrutinize the decisions 342 OA No. 170/00961/2019 & Ors/CAT/BANGALORE taken by another constitutional authority i.e. the Public Service Commission in the facts of the present case.
12. Before adverting to the aforesaid issue we may briefly indicate our views with regard to the order of the High Court dated 26th August, 2011 in CWJC No. 3892 of 20911 on the basis of which the action of the Commission is sought to be faulted. Reading the operative directions, reproduced hereinabove, we fail to find any direction of the High Court which would bind the Commission to any particular course of action. There is sufficient discernible flexibility in the said order leaving it open for the Commission to modulate its action as the facts surrounding the particular examination(s) that is involved may require.
13. We have read and considered the judgment in Sanjay Singh (supra). In the said case, this Court was considering the validity of the selections held for appointment in the U.P. Judicial Service on the basis of a competitive examination in which the Rules prescribed five (05) papers all of which were compulsory for all the candidates. There is no dispute that the U.P. Public Service Commission in the aforesaid case had scaled down the marks awarded to the candidates by following the scaling method. This Court, after holding that the Judicial Service Rules which governed the selection did not permit the scaled down marks to be taken into consideration, went into the further question of the correctness of the adoption of scaling method to an examination where the papers were compulsory and common to all the candidates. In doing so, it was observed as follows:
"The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer-scripts is in respect of a single subject. Moderation is no answer where the problem is to find inter se merit across several subjects, that is, where candidates take examination in different subjects. To solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a common scale. There are different methods of statistical scoring. Standard score method, linear standard score method, normalized equipercentile method are some of the recognized methods for scaling." (SCC p. 742, Para
24) 343 OA No. 170/00961/2019 & Ors/CAT/BANGALORE It was furthermore observed:(SCC p. 742, Para 25) "Scaling process, whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination." (Para 25)
14. After holding as above, this Court, on due consideration of several published works on the subject, took note of the preconditions, the existence or fulfillment of which, alone, could ensure an acceptable result if the scaling method is to be adopted. As in Sanjay Singh (supra) the U.P. Public Service Commission had not ensured the existence of the said preconditions the consequential effects in the declaration of the result were found to be unacceptable. It was repeatedly pointed out by this Court (Paras 36 and 37) that the adoption of the scaling method had resulted in treating unequals as equals. Thereafter in Para 45 this Court held as follows : (SCC p. 751) "45. We may now summarize the position regarding scaling thus :
(i) Only certain situations warrant adoption of scaling techniques.
(ii) There are number of methods of statistical scaling, some simple and some complex. Each method or system has its merits and demerits and can be adopted only under certain conditions or making certain assumptions.
(iii) Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner.
(iv) In the linear standard method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability.
(v) Any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process.
(vi) Scaling may, to a limited extent, be successful in eliminating the general variation which exists from 344 OA No. 170/00961/2019 & Ors/CAT/BANGALORE examiner to examiner, but not a solution to solve examiner variability arising from the "hawk-dove" effect (strict/ liberal valuation)."
15. Moreover, in para 46, this Court observed that the materials placed before it did not disclose that the Commission or any Expert Body had kept the above factors in mind for deciding to introduce the system of scaling. In fact, in the said paragraph this Court had observed as follows:
"We have already demonstrated the anomalies/ absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is in place, the Commission may follow the moderation system set out in para 23 above with appropriate modifications." (Para 46)
16. In Sanjay Singh (supra) an earlier decision of this Court approving the scaling method i.e. U.P. Public Service Commission Vs. Subhash Chandra Dixit[2] to a similar examination was also noticed. In paragraph 48 of the judgment in Sanjay Singh (supra) it was held that the scaling system adopted in Subhash Chandra Dixit (supra) received this Court's approval as the same was adopted by the Commission after an indepth expert study and that the approval of the scaling method by this Court in Subhash Chandra Dixit (supra) has to be confined to the facts of that case.
17. Finally, in paragraph 51 of the report in Sanjay Singh (supra) the Court took note of the submission made on behalf of the Commission that it is not committed to any particular system and "will adopt a different or better system if the present system is found to be defective".
18. In Sanjay Singh (supra) the Court was considering the validity of the declaration of the results of the examination conducted by the Public Service Commission under the U.P. Judicial Service Rules by adoption of the scaling method. This, according to this Court, ought not to have been done inasmuch as the scaling system is more appropriate to an examination in which the candidates are required to write the papers in different subjects whereas in the examination in question all the papers were common and compulsory. To come to the aforesaid conclusion, this Court had necessarily to analyze the detailed parameters inherent in the scaling method and then to reach its conclusions 345 OA No. 170/00961/2019 & Ors/CAT/BANGALORE with regard to the impact of the adoption of the method in the examination in question before recording the consequences that had resulted on application of the scaling method. The details in this regard have already been noticed. (Sanjay Singh case, Paras 45 and 46)
19. The entirety of the discussion and conclusions in Sanjay Singh (supra) was with regard to the question of the suitability of the scaling system to an examination where the question papers were compulsory and common to all candidates. The deficiencies and shortcomings of the scaling method as pointed out and extracted above were in the above context. But did Sanjay Singh (supra) lay down any binding and inflexible requirement of law with regard to adoption of the scaling method to an examination where the candidates are tested in different subjects as in the present examination? Having regard to the context in which the conclusions were reached and opinions were expressed by the Court it is difficult to understand as to how this Court in Sanjay Singh (supra) could be understood to have laid down any binding principle of law or directions or even guidelines with regard to holding of examinations; evaluation of papers and declaration of results by the Commission. What was held, in our view, was that scaling is a method which was generally unsuitable to be adopted for evaluation of answer papers of subjects common to all candidates and that the application of the said method to the examination in question had resulted in unacceptable results. Sanjay Singh (supra) did not decide that to such an examination i.e. where the papers are common the system of moderation must be applied and to an examination where the papers/subjects are different, scaling is the only available option. We are unable to find any declaration of law or precedent or principle in Sanjay Singh (supra) to the above effect as has been canvassed before us on behalf of the appellants. The decision, therefore, has to be understood to be confined to the facts of the case, rendered upon a consideration of the relevant Service Rules prescribing a particular syllabus.
20. We cannot understand the law to be imposing the requirement of adoption of moderation to a particular kind of examination and scaling to others. Both are, at best, opinions, exercise of which requires an indepth consideration of questions that are more suitable for the experts in the field. Holding of public examinations involving wide and varied subjects/disciplines is a complex task which defies an instant solution by adoption of any singular process or by a strait jacket formula. Not only examiner variations and variation in award of 346 OA No. 170/00961/2019 & Ors/CAT/BANGALORE marks in different subjects are issues to be answered, there are several other questions that also may require to be dealt with. Variation in the strictness of the questions set in a multi- disciplinary examination format is one such fine issue that was coincidentally noticed in Sanjay Singh (supra). A conscious choice of a discipline or a subject by a candidate at the time of his entry to the University thereby restricting his choice of papers in a public examination; the standards of inter subject evaluation of answer papers and issuance of appropriate directions to evaluators in different subjects are all relevant areas of consideration. All such questions and, may be, several others not identified herein are required to be considered, which questions, by their very nature should be left to the expert bodies in the field, including, the Public Service Commissions. The fact that such bodies including the Commissions have erred or have acted in less than a responsible manner in the past cannot be a reason for a free exercise of the judicial power which by its very nature will have to be understood to be, normally, limited to instances of arbitrary or malafide exercise of power.
21. To revert, in the instant case, we have noticed that the contempt proceedings against the Public Service Commission for violation of order dated 26th August, 2011 in C.W.J.C. NO.3892 of 2011 had failed. We have also noticed that the Public Service Commission made all attempts to gather relevant information from the Union Public Service Commission and other State Public Service Commissions to find out the practice followed in the other States. The information received was fully discussed in the light of the particulars of the examination in question and thereafter a conscious decision was taken by the resolution dated 15th January, 2013, details of which have been already extracted. In the light of the above and what has been found to be the true ratio of the decision in Sanjay Singh (supra), we cannot hold that in the present case the action taken by the Bihar Public Service Commission deviates either from the directions of the High Court (dated 26th August, 2011 in C.W.J.C. No. 3892 of 2011) or the decision of this Court in Sanjay Singh (supra). Also, the absence of any plea of mala fide and the uniform application of the principles adopted by the Commission by its resolution dated 15th January, 2013 would lead us to the conclusion that the present would not be an appropriate case for exercise of the power of judicial review. The absence of reasons in the aforesaid resolution, on which much stress has been laid, by itself, cannot justify such interference when the decision, on scrutiny, does not disclose any gross or palpable unreasonableness.
347 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
22. On the aforesaid conclusions that we have reached we have to dismiss the appeals. We, therefore, do not consider it necessary to go into the question as to whether it was necessary for the appellants to implead the selected candidates as party respondents to the present proceedings, an issue on which elaborate arguments have been advanced and several precedents have been cited at the bar. For the same reasons the weighty arguments advanced by both sides on the power of the Court to mould the relief in a given case will have to await consideration in a more appropriate case.
23. Consequently and in the light of the above, the appeals are dismissed, however, without any order as to cost. All interim orders are vacated."
104. The applicants also invite our attention to the judgment of the Hon'ble Apex Court in Sanjay Singh Vs. U.P. Public Service Commission reported in (2007) 3 SCC 720. The applicant would contend that the ratio of these decisions are that when a stipulated procedure is followed throughout for 30 years singling out one year as an exception to make general allegations against the procedure followed is totally incorrect.
105. They would say that the ratio of Sanjay Singh's case was that when a decision had been made by a Bench of a Court it cannot be challenged tangentially but only through a review and then also where violation of Fundamental Rights is alleged and also points out that the same matter should be between the same parties and in respect of the same causes of action. It is not between the same parties but the cause of action as such is also different as following the PSC Chairman's and the Secretary's incarceration, widespread doubts 348 OA No. 170/00961/2019 & Ors/CAT/BANGALORE arose as to the correctness of the methodology followed or infraction that may be possible. But then the applicants would submit that such generalization is incorrect. If anyone is to be deprived of his lawfully held position and livelihood there must be a specific charge levelled against that particular person as diminishment and deprival of livelihood is enough to extinguish the life of that person both figuratively and actually. Therefore, based on such vague assertions or allegations the KPSC should not have had acted in the manner that it did. We quote from the judgment of the Hon'ble Apex Court in Sanjay Singh's case reported in (2007) 3 SCC 720:
"PETITIONER:
Sanjay Singh & Anr.
Versus RESPONDENTS:
U.P. Public Service Commission, Allahabad & Anr.
Writ Petition (Civil) 165 of 2005 DATE OF JUDGMENT: 09/01/2007 BENCH:
Y.K. SABHARWAL, C.J., C. K. Thakker & R. V. Raveendran, JJ.
JUDGMENT:
RAVEENDRAN, J.
These petitions under Article 32 of the Constitution of India have been filed by the unsuccessful candidates who appeared in the examinations conducted by the Uttar Pradesh Public Service
349 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Commission ('Commission for short) for recruitment to the posts of Civil Judge (Junior Division).
2. On the request of the Allahabad High Court, to conduct the examination for filling 347 posts of Civil Judge (Junior Division), the Commission issued an advertisement in the Employment News dated 28.11.2003. As many as 51524 candidates appeared for the "U.P. Judicial Service Civil Judge, (Junior Division) Preliminary Examination, 2003" conducted by the Commission on 21.3.2004. The preliminary examination was of 'objective' type consisting of two papers General Knowledge and Law. The result was declared on 30.6.2004 and 6046 candidates were declared qualified to appear for the "U.P. Civil Judge (Junior Division) Examination (Main), 2003" which was of 'descriptive' (conventional) type. The Main examination consisted of five papers (each carrying 200 marks) - General Knowledge, Language, Law I, II and III - and was held between 5th and 7th October, 2004. The number of candidates who took the said examination was 5748.
3. The answer scripts relating to each subject were distributed to several examiners for valuation, as it was not possible to get the large number evaluated by a single examiner. The number of examiners, to whom the answer-scripts were distributed for valuation, were as follows : General Knowledge 18, Language 14, Law-I 11, Law-II 10, and Law-III 14. The marks assigned by the examiners were subjected to 'statistical scaling' and the results of written examination based on such scaled marks, were declared on 7.3.2005. Thereafter, 1290 candidates were interviewed between 14.4.2005 and 26.4.2005. After such interview, the Commission declared the final results of the examination on 1.5.2005 based on the aggregate of 'scaled marks' in the written (Main) examination and the marks awarded in the interview. On the recommendations made by Commission, appointments were made to 347 posts of Civil Judge, Junior Division.
4. The petitioners, who were unsuccessful, are aggrieved. They contend that the statistical scaling system adopted by the Commission is illegal as it is contrary to the Uttar Pradesh Judicial Service Rules, 2001. They also contend that conversion of their raw marks into scaled marks, is illegal as it was done by applying an arbitrary, irrational and inappropriate scaling formula. It is submitted that the Commission's exercise of subjecting the marks secured by the candidates to scaling, has resulted in meritorious students being ignored, and less meritorious students 350 OA No. 170/00961/2019 & Ors/CAT/BANGALORE being awarded higher marks and selected, thereby violating the fundamental rights of the candidates.
4.1) W.P. [C] No.165/2005 was filed on 5.4.2005 even before the final results were declared, praying (i) for a direction to the Commission not to adopt the system of scaling and to declare the results of the Main Examination on the basis of actual marks obtained by the candidates; and (ii) for a direction that the petition be heard by a Bench of three or more Judges as the decision of a Bench of two Judges of this Court in U.P. Public Service Commission v. Subhash Chandra Dixit [2003 (12) SCC 701] upholding the system of scaling adopted by the Commission does not lay down the correct law.
4.2) The other petitions were filed after declaration of the final results, in effect, for the following reliefs : (a) for quashing the results of the U.P. Civil Judge (Junior Division) Main Examination-2003 declared on 7.3.2005 and the final results declared on 1.5.2005 on the basis of scaled marks and direct the Commission to declare the results on the basis of actual marks secured by the candidates; (b) to direct an inquiry by an independent agency into the irregularities committed by the Commission in the said examination; (c) for a declaration that the use of 'statistical scaling' in regard to the examinations for the subordinate judiciary is unconstitutional; and (d) to reconsider the law laid down in Subhash Chandra Dixit (supra).
5. The respondents raised the threshold bar of maintainability. It is submitted that this Court in S. C. Dixit (supra), has rejected identical grounds of attack and upheld the statistical scaling method adopted by the Commission in the examination conducted in 2000. It is contended that the prayers in these petitions under Article 32, in effect, seek setting aside or review of the decision in S. C. Dixit, and that is impermissible. Reliance is placed on the Constitution Bench decision of this Court in Rupa Ashok Hurra v. Ashok Hurra [2002 (4) SCC 388], to contend that a writ petition under Article 32 would not lie to challenge any judgment of this Court or that of a High Court, as superior courts are not 'State' within the meaning of Article 12 and their judgments cannot be termed as violative of fundamental rights. It is also pointed out that Review Petition (Civil) No. 162/2004 and Curative Petition No.43/2004 filed in respect of S. C. Dixit (supra) were rejected on 04.2.2004 and 6.10.2004 respectively.
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6. In regard to merits, the Commission contended that the 'statistical scaling' method adopted in regard to Civil Judge (Junior Division) Examination is legal, scientific and sound and its policy to apply statistical scaling to marks of written examination, was based on experts' opinion as also the experience gained in conducting several examinations. It is submitted that under the proviso to Rule 50 of the U.P.Public Service Commission (Procedure and Conduct of Business) Rules, 1976, it is entitled to adopt any formula or method or device to eliminate variation in marks; that it found variation in the marks awarded by different examiners on account of a phenomenon known as 'examiner variability' and to eliminate it, statistical scaling was introduced. It is further submitted that matters relating to the conduct of Examination, evaluation of answer-scripts, application of methods to bring in uniformity in evaluation are matters of policy involving technical and scientific decisions based on expert opinion; that courts are not equipped to pronounce upon such matters and, therefore, should not interfere in the absence of manifest arbitrariness or mala fides; and that, at all events, in the absence of an opinion by a body of experts in the field of statistics certifying that the system of scaling adopted by the Commission is unsound and irrational, there should be no interference. Lastly, it is submitted that if the court, for any reason, should hold that the existing scaling system should be substituted, that should be done prospectively.
7. On the contentions urged, the following questions arise for our consideration :
(i) Whether the writ petitions are not maintainable ?
(ii) Whether 'scaling' of marks is contrary to or prohibited by the relevant rules ?
(iii) Whether the 'scaling system' adopted by the Commission is arbitrary and irrational, and whether the decision in S. C. Dixit (supra) approving the 'scaling system' requires reconsideration ?
(iv) If the statistical scaling system is found to be illegal or irrational or unsound, whether the selections already made, which are the subject-matter of these petitions, should be interfered with?
Re : Question (i) :
8. It is true that a judgment of this Court cannot be challenged in a petition under Article 32. It can, however, be reviewed under Article 137 or in exceptional circumstances reconsidered in exercise of inherent power, on a curative petition (See Rupa 352 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Ashok Hurra). It is equally true that a final judgment of a High Court can be challenged only by an appeal under Articles 132 to 134 or by obtaining 'special leave' under Article 136 and not by a petition under Article 32. But that is not the issue here.
9. In regard to decisions of civil courts in suits governed by Civil Procedure Code or appeals therefrom, the term 'judgment' refers to the grounds of a decree or order, 'decree' refers to the formal expression of an adjudication in a suit and 'order' refers to formal expression of any decision of a civil court which is not a decree. In regard to the decisions of High Court and Supreme Court in writ jurisdiction, the term 'judgment' is normally used to refer to the 'judgment and order', that is the grounds for the decision and the formal expression of the decision. The petitioners do not seek to upset the 'order' part of the judgment in S. C. Dixit (supra) which decided the validity of UP Civil Judge (Junior Division), Examination, 2000, held under the UP Nyayik Sewa Niyamawali 1951. The grievance of the petitioners is in regard to the UP Civil Judge (Junior Division) Examination, 2003, held under the UP Judicial Service Rules 2001. They, however, contend that the ratio decidendi of the decision in S.C. Dixit upholding the Commission's system of scaling of marks in written examination, requires reconsideration. Therefore, these petitions are neither for 'review' nor for 'setting aside' or 'questioning' the decision in S.C. Dixit. Therefore, the bar, referred to in Rupa Ashok Hurra, will not apply.
10. The contention of Commission also overlooks the fundamental difference between challenge to the final order forming part of the judgment and challenge to the ratio decidendi of the judgment. Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. The reasons for the decision or the ratio decidendi is not the final order containing the decision. In fact, in a judgment of this Court, though the ratio decidendi may point to a particular result, the decision (final order relating to relief) may be different and not a natural consequence of the ratio decidendi of the judgment. This may happen either on account of any subsequent event or the need to mould the relief to do complete justice in the matter. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent. The term 'judgment' and 'decision' are used, rather loosely, to refer to the entire judgment or the final order or the ratio decidendi of a judgment. Rupa Ashok Hurra (supra) is of course, an authority for the proposition that a petition under Article 32 would not be 353 OA No. 170/00961/2019 & Ors/CAT/BANGALORE maintainable to challenge or set aside or quash the final order contained in a judgment of this Court. It does not lay down a proposition that the ratio decidendi of any earlier decision cannot be examined or differed in another case. Where violation of a fundamental right of a citizen is alleged in a petition under Article 32, it cannot be dismissed, as not maintainable, merely because it seeks to distinguish or challenge the ratio decidendi of an earlier judgment, except where it is between the same parties and in respect of the same cause of action. Where a legal issue raised in a petition under Article 32 is covered by a decision of this Court, the Court may dismiss the petition following the ratio decidendi of the earlier decision. Such dismissal is not on the ground of 'maintainability' but on the ground that the issue raised is not tenable, in view of the law laid down in the earlier decision. But if the court is satisfied that the issue raised in the later petition requires consideration and in that context the earlier decision requires re-examination, the court can certainly proceed to examine the matter (or refer the matter to a larger Bench, if the earlier decision is not of a smaller Bench). When the issue is re- examined and a view is taken different from the one taken earlier, a new ratio is laid down. When the ratio decidendi of the earlier decision undergoes such change, the final order of the earlier decision as applicable to the parties to the earlier decision, is in no way altered or disturbed. Therefore, the contention that a writ petition under Article 32 is barred or not maintainable with reference to an issue which is the subject-matter of an earlier decision, is rejected.
Re : Question (ii) :
11. Article 234 of the Constitution requires appointments to the Judicial Service of a State (other than District Judges) to be made by the Governor of the State in accordance with the Rules made by him in that behalf, after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. The UP Judicial Service Rules, 2001 (for short 'Judicial Service Rules') were made by the Governor of Uttar Pradesh in exercise of powers conferred by Article 234 and Article 309 of the Constitution, in consultation with the Commission and the Allahabad High Court, to regulate the recruitment and appointment to Uttar Pradesh Judicial Service. The Judicial Service Rules replaced the 'Uttar Pradesh Nyayik Sewa Niyamawali, 1951' which was in force earlier. The Judicial Service Rules were amended by the Uttar Pradesh Judicial Service (Amendment) Rules, 2003.
354 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 11.1) Rule 7 of the Judicial Service Rules provides that recruitment to the post of Civil Judge (Junior Division) shall be by direct recruitment on the basis of a competitive examination conducted by Commission. Part V of the said rules lays down the procedure for recruitment to Judicial Service. Rule 16 provides for competitive examination and Rule 19 deals with the syllabus. The said rules are extracted below :
"16. Competitive Examination The examination may be conducted at such time and on such dates as may be notified by the Commission and shall consist of
(a) a written examination in such legal and allied subject including procedure, as may be included in the Syllabus prescribed under rule 19, unless the same is otherwise modified by the Governor in consultation with the court and the Commission;
(b) an examination to test the knowledge of the candidates in Hindi, English and Urdu;
(c] an interview for assessing merit of the candidate giving due regard to his ability, character, personality, physique and genera suitability for appointment to the service.
19. Syllabus The syllabus and the rules relating to the competitive examination shall be such as given in the Appendix II, provided that the syllabus and rules may be amended by the Governor in consultation with the Commission and Court."
11.2. Appendix II to the Rules contains the syllabus for the competitive examination. It enumerates the details of the five subjects for the written examination and the number of marks carried by each subject (200 each). It also provides for a Personality Test (interview) to find out the suitability of the candidates (carrying 100 marks). Note (i) to Appendix-II provides that "the marks obtained in the interview will be added to the marks obtained in the written papers and the candidate's place will depend on the aggregate of both".
12. Sub-Rule (1) of Rule 20 of the Judicial Service Rules requires the Commission to prepare the result of the written examination and thereafter, invite such number of candidates, who in the opinion of the commission have secured minimum marks as may be fixed. Sub-Rule (2) provides for participation of a sitting Judge 355 OA No. 170/00961/2019 & Ors/CAT/BANGALORE in the interview of candidates. Sub-rule (3) provides that the Commission shall prepare a final list of selected candidates in order of their proficiency as disclosed by aggregates of marks finally awarded to each candidate in the written examination and the interview. The proviso thereto provides that if two or more candidates obtain equal marks in the aggregate, the name of the candidate who is elder in age shall be placed higher and where two or more candidates of equal age obtain equal marks in the aggregate, the name of the candidate who has obtained higher marks in the written examination shall be placed higher. Rule 21 provides that the Governor shall on receipt of the list of candidates submitted by the Commission under Rule 20(3) make appointment on the posts of Civil Judge (Junior Division) in the order in which their names are given in the list provided. Thus the Judicial Service Rules constitute a complete code in itself in regard to recruitment to Judicial Service. It is also evident that the marks finally awarded to each candidate in the written examination and interview are crucial both for appointment as also for purposes of inter se seniority.
13. The petitioners point out that the Judicial Service Rules do not provide for substituting the actual marks obtained by a candidate by scaled marks. It is contended that the words "marks obtained in the written papers" in Note (i) of Appendix II clearly indicate that the actual marks obtained in the written examination alone should be taken into account and not any moderated or scaled marks; that in the absence of any provision for scaling in the Judicial Service Rules, the Commission had no authority to substitute the actual marks by 'scaled marks'; and that the places/ranks of the candidates should be determined strictly on the basis of the aggregate of the actual marks obtained in the main written examination plus the marks obtained in interview.
14. The Commission contends that the manner of conducting examination by the Commission, even in regard to recruitment to Judicial Service, is governed by the Uttar Pradesh Public Service Commission (Procedure and Conduct of Business) Rules, 1976 (for short 'PSC Procedure Rules') made by the Commission in exercise of the power conferred by the UP State Public Service Commission (Regulation of Procedure and Conduct of Business) Act, 1974. Rule 26 provides for preparation of a panel of Examiners or constitution of a Committee for the purpose of holding examination in each subject. Rule 28 provides that the question papers set by the examiners shall be placed before the Commission to ensure conformity with the required standard of examination and the Commission may moderate the question 356 OA No. 170/00961/2019 & Ors/CAT/BANGALORE papers or constitute a Committee to perform the work of moderation. Rule 30 provides for advertisement of vacancies for which selections are to be made and scrutiny of applications received. Rule 33 provides for the determination of place, dates and time of examination and the centres for examination. Rule 34 provides for the list of persons suitable to be appointed as invigilators and appointment of invigilators. Rule 37 provides for fictitious roll numbers (code numbers) to be allotted to each candidate before the answer books are dispatched to the examiners for assessment. Rule 38 provides that the number of answer books to be sent to each examiner shall be fixed by the Commission. Rule 44 requires the Secretary of the Commission to take steps for tabulation of marks obtained by each candidate as soon as the answer-scripts are received after valuation, after scrutiny of scripts, removal of discrepancies and corrections. Rule 45 provides for random checking of the tabulation to ensure correctness and accuracy of tabulation. Rule 47 provides that the original roll numbers of candidates shall thereafter be restored to the answer-scripts and for issue of interview letters. Rule 49 authorizes the Commission to decide the number of candidates to be called for interview to appear before a Board on any day. Rule 50 provides that the interview marks awarded shall be kept in safe custody. Rule 51 provides that mark-sheets shall be opened on the last day of interview and immediately thereafter the marks of interview/personality test shall be added to the marks obtained by the candidates in the written examination, and thereafter on the basis of the total so obtained, the merit list shall be prepared and placed before the Commission for final declaration of the result. The proviso to Rule 51 provides that the Commission with a view to eliminate variations in the ranks awarded to candidates at any time at any examination or interview, adopt any method, device or formula which they consider proper for the purpose. The Commission contends that having regard to the proviso to Rule 51 which specifically enables them to adopt any method, device or formula to eliminate variations in the marks awarded to any at any examination, they are entitled to adopt the scaling system to eliminate variations in marks.
15. The petitioners point out that the PSC Procedure Rules were not made in consultation with the High Court. On the other hand, the Judicial Service Rules, 2001 which came into effect from 1.7.2000, were made in consultation with both Commission and the High Court. It is, therefore, submitted that the Judicial Service Rules alone will regulate and govern the recruitment of Civil Judges (Junior Division) including examinations and interviews 357 OA No. 170/00961/2019 & Ors/CAT/BANGALORE and the proviso to Rule 51 of PSC Procedure Rules will not apply to recruitment of Civil Judges. Reliance is placed on the decisions of this Court in State of Bihar v. Bal Mukund Sah [2000 (4) SCC 640], Union of India v. Hansoli Devi [2002 (7) SCC 273] and Union of India v. Deoki Nandan Aggarwal [1992 Supp. 1 SCC 323] in regard to interpretation of the Rules.
16. This question was considered briefly by this Court in S. C. Dixit wherein it was held that the PSC Procedure Rules made in exercise of power under the U.P. State Public Service Commission (Regulation of Procedure and Conduct of Business) Act, 1974 give the guidelines for any examination to be held by the Commission and therefore, all the provisions of the said Rules will be applicable to an examination for recruitment to judicial service also.
17. It is no doubt true that Judicial Service Rules govern the recruitment to Judicial Service, having been made in exercise of power under Article 234, in consultation with both the commission and the High Court. It also provides what examinations should be conducted and the maximum marks for each subject in the examination. But the Judicial Service Rules entrust the function of conducting examinations to the Commission. The Judicial Service Rules do not prescribe the manner and procedure for holding the examination and valuation of answer-scripts and award of the final marks and declaration of the results. Therefore, it is for the Commission to regulate the manner in which it will conduct the examination and value the answer scripts, subject, however, to the provisions of the Judicial Service Rules. If the Commission has made Rules to regulate the procedure and conduct of the examination, they will naturally apply to any examination conducted by it for recruitment to any service, including the judicial service. But where the Judicial Service Rules make a specific provision in regard to any aspect of examination, such provision will prevail, and the provision of PSC Procedure Rules, to the extent it is inconsistent with the Judicial Service Rules, will be inapplicable. Further, if both the Rules have made provision in regard to a particular matter, the PSC Procedure Rules will yield to the Judicial Service Rules.
18. The manner in which the list of candidates as per merit should be prepared is provided both in the Judicial Service Rules and the PSC Procedure Rules. Relevant portion of Rule 20(3) and Note (i) of Appendix-II of the Judicial Service Rules and Rule 51 of the PSC Procedure Rules providing for the aggregation of marks and preparation of the merit list, are extracted below :-
358 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Judicial Service Rules PSC Procedure Rules.
Rule 20(3). The Commission "51. The marks-sheets so then shall prepare a final list of obtained shall be opened on selected candidates in order of the last day of interview and their proficiency as disclosed immediately there after the by aggregate of marks finally marks of interview/ personality awarded to each candidate in test shall be added to the the written examination and the marks obtained by the interview. candidates in the written examination. Thereafter, on the Note (i) of Appendix-II. - basis of the totals so obtained Marks obtained in the interview the merit list shall be prepared will be added to the marks and place before the obtained in the written papers Commission for final and the candidates' place will declaration of the result.
depend on the aggregate of the both. Provided that the Commission may, with a view to eliminating variation in the marks awarded to candidates at any examination or interview, adopt and method, device or formula which they consider proper for the purpose."
(different emphasis supplied) As the field is occupied by Rule 20(3) and Note (i) of Appendix-II of Judicial Service Rules, they will prevail over the general provision in Rule 51 of PSC Procedure Rules.
19. Rule 20(3) provides that the final list of selected candidates in order of their proficiency as disclosed by the aggregate of 'marks finally awarded to each candidate in the written examination and the interview". Note (i) to Appendix II of the Judicial Service Rules provides that the "marks obtained in the interview" will be added to "the marks obtained in the written papers" and that the candidate's place will depend on the aggregate of both. Though Judicial Service Rules refers to 'marks finally awarded', the said Rules do not contain a provision similar to the proviso to Rule 51 of PSC Procedure Rules, enabling the Commission to adopt any method, device or formula to eliminate variation in the marks. It is not possible to read the proviso to Rule 51 or words to that effect into Rule 20(3) or Note (i) of Appendix-II of Judicial Service 359 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Rules. It is well settled that courts will not add words to a statute or read into the statute words not in it. Even if the courts come to the conclusion that there is any omission in the words used, it cannot make up the deficiency, where the wording as it exists is clear and unambiguous. While the courts can adopt a construction which will carry out the obvious intention of the legislative or rule making authority, it cannot set at naught the legislative intent clearly expressed in a statute or the rules. Therefore, Rule 20(3) and Note (i) of Appendix-II has to be read as they are without the addition of the proviso to Rule 51 of PSC Procedure Rules. If so, what can be taken into account for preparing final list of selected candidates, are 'marks finally awarded to a candidate' in the written examination and the interview. The marks assigned by the examiner are not necessarily the marks finally awarded to a candidate. If there is any error in the marks awarded by the examiner it can always be corrected by the Commission and the corrected marks will be 'the final marks awarded to the candidate'. Where the Commission is of the view that there is 'examiner variability' in the marks (due to strict or liberal assessment of answer scripts) or improper assessment on account of erratic or careless marking by an examiner, they can be corrected appropriately by moderation. The moderation is either by adding (in the case of strict examiners) or deducting (in the case of liberal examiners) a particular number of marks which has been decided with reference to principles of moderation applied. If there is erratic or careless marking, then moderation is by fresh valuation by another examiner. Therefore, the marks assigned by the examiner as moderated will be the marks finally awarded to the candidates or marks obtained by the candidates. Moderation, it has to be held, is inherent in the evaluation of answer scripts in any large scale examination, where there are more than one examiner.
20. We cannot accept the contention of the petitioner that the words "marks awarded" or "marks obtained in the written papers"
refers only to the actual marks awarded by the examiner. 'Valuation' is a process which does not end on marks being awarded by an Examiner. Award of marks by the Examiner is only one stage of the process of valuation. Moderation when employed by the examining authority, becomes part of the process of valuation and the marks awarded on moderation become the final marks of the candidate. In fact Rule 20(3) specifically refers to the 'marks finally awarded to each candidate in the written examination', thereby implying that the marks awarded by the examiner can be altered by moderation.
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21. But the question is whether the raw marks which are converted into scaled scores on an artificial scale which assumed variables (assumed mean marks and assumed standard deviation) can be considered as 'marks finally awarded' or 'marks obtained'. Scaled scores are not marks awarded to a candidate in a written examination, but a figure arrived at for the purpose of being placed on a common scale. It can vary with reference to two arbitrarily fixed variables, namely 'Assumed Mean' and 'Assumed Standard Mean'. We have dealt with this aspect in greater detail while dealing with question(iii). For the reasons given while considering question (iii), we hold that 'scaled scores' or 'scaled marks' cannot be considered to be 'marks awarded to a candidate in the written examination'. Therefore, scaling violates Rule 20(3) and Note (i) of Appendix-II of Judicial Service Rules.
22. Rule 20 of Judicial Service Rules requires the Commission to call for interview such number of candidates, who in its opinion have secured the minimum marks fixed by it. Because of application of scaling system by the Commission, it has not been possible for the Commission to fix such minimum marks either for individual subjects or for the aggregate. In the absence of minimum marks, several candidates who secured less than 30% in a subject have been selected. We note below by way of illustration, the particulars of some candidates who have been selected in spite of securing less than 20% in a subject :
Sl Roll No Subject Actual Scaled Rank in
No Marks Marks selection
(in%)
1. 012610 Language 8% 79 225
2. 032373 Language 8% 79 290
3. 002454 Language 11% 79 196
4. 008097 Language 13% 89 85
5. 017808 Law-I 13% 76 317
6. 010139 Language 14% 85 333
7. 012721 Law-I 15% 100 172
8. 002831 Language 16% 89 263
9. 004998 Language 17% 91 161
Thus scaling system adopted by the Commission, contravenes Rule 20(1) also.
Re : Question (iii) :
361 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
23. When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer- scripts. Where the number of candidates taking the examination are limited and only one examiner (preferably the paper-setter himself) evaluates the answer- scripts, it is to be assumed that there will be uniformity in the valuation. But where a large number of candidates take the examination, it will not be possible to get all the answer-scripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer-scripts among several examiners for valuation with the paper-setter (or other senior person) acting as the Head Examiner. When more than one examiner evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer- scripts allotted to him for valuation. Each examiner will apply his own yardstick to assess the answer-scripts. Inevitably therefore, even when experienced examiners receive equal batches of answer scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is 'Hawk- Dove' effect. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer-script is given to different examiners, there is all likelihood of different marks being assigned. If a very well written answer-script goes to a strict examiner and a mediocre answer-script goes to a liberal examiner, the mediocre answer-script may be awarded more marks than the excellent answer-script. In other words, there is 'reduced valuation' by a strict examiner and 'enhanced valuation' by a liberal examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'. Therefore, there is a need to evolve a procedure to ensure uniformity inter se the Examiners so that the effect of 'examiner subjectivity' or 'examiner variability' is minimised. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. The classic method of moderation is as follows :
(i) The paper-setter of the subject normally acts as the Head Examiner for the subject. He is selected from amongst senior academicians/scholars/senior civil servants/Judges. Where the case of a large number of candidates, more than one examiner is appointed and each of them is allotted around 300 answer-scripts for valuation.
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(ii) To achieve uniformity in valuation, where more than one examiner is involved, a meeting of the Head Examiner with all the examiners is held soon after the examination. They discuss thoroughly the question paper, the possible answers and the weightage to be given to various aspects of the answers. They also carry out a sample valuation in the light of their discussions. The sample valuation of scripts by each of them is reviewed by the Head Examiner and variations in assigning marks are further discussed. After such discussions, a consensus is arrived at in regard to the norms of valuation to be adopted. On that basis, the examiners are required to complete the valuation of answer scripts. But this by itself, does not bring about uniformity of assessment inter se the examiners. In spite of the norms agreed, many examiners tend to deviate from the expected or agreed norms, as their caution is overtaken by their propensity for strictness or liberality or erraticism or carelessness during the course of valuation. Therefore, certain further corrective steps become necessary.
(iii) After the valuation is completed by the examiners, the Head Examiner conducts a random sample survey of the corrected answer scripts to verify whether the norms evolved in the meetings of examiner have actually been followed by the examiners. The process of random sampling usually consists of scrutiny of some top level answer scripts and some answer books selected at random from the batches of answer scripts valued by each examiner. The top level answer books of each examiner are revalued by the Head Examiner who carries out such corrections or alterations in the award of marks as he, in his judgment, considers best, to achieve uniformity. (For this purpose, if necessary certain statistics like distribution of candidates in various marks ranges, the average percentage of marks, the highest and lowest award of marks etc. may also be prepared in respect of the valuation of each examiner.)
(iv) After ascertaining or assessing the standards adopted by each examiner, the Head Examiner may confirm the award of marks without any change if the examiner has followed the agreed norms, or suggest upward or downward moderation, the quantum of moderation varying according to the degree of liberality or strictness in marking. In regard to the top level answer books revalued by the Head Examiner, his award of marks is accepted as final. As 363 OA No. 170/00961/2019 & Ors/CAT/BANGALORE regards the other answer books below the top level, to achieve maximum measure of uniformity inter se the examiners, the awards are moderated as per the recommendations made by the Head Examiner.
(v) If in the opinion of the Head Examiner there has been erratic or careless marking by any examiner, for which it is not feasible to have any standard moderation, the answer scripts valued by such examiner are revalued either by the Head Examiner or any other Examiner who is found to have followed the agreed norms.
(vi) Where the number of candidates is very large and the examiners are numerous, it may be difficult for one Head Examiner to assess the work of all the Examiners. In such a situation, one more level of Examiners is introduced. For every ten or twenty examiners, there will be a Head Examiner who checks the random samples as above. The work of the Head Examiners, in turn, is checked by a Chief Examiner to ensure proper results.
The above procedure of 'moderation' would bring in considerable uniformity and consistency. It should be noted that absolute uniformity or consistency in valuation is impossible to achieve where there are several examiners and the effort is only to achieve maximum uniformity.
24. In the Judicial Service Examination, the candidates were required to take the examination in respect of the all five subjects and the candidates did not have any option in regard to the subjects. In such a situation, moderation appears to be an ideal solution. But there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogenous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. Let us assume that some candidates take Mathematics as an optional subject and some take English as the optional subject. It is well-recognised that a mark of 70 out of 100 in mathematics does not mean the same thing as 70 out of 100 in English. In English 70 out of 100 may indicate to an outstanding student whereas in Mathematics, 70 out of 100 may merely indicate an average student. Some optional subjects may be very easy, when compared to others, resulting in wide disparity in the marks secured by equally capable students. In such a situation, candidates who have opted for the easier 364 OA No. 170/00961/2019 & Ors/CAT/BANGALORE subjects may steal an advantage over those who opted for difficult subjects. There is another possibility. The paper setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared some paper setters in other subjects who set tougher questions difficult to answer. This may happens when for example, in a Civil Service examination, where Physics and Chemistry are optional papers, examiner 'A' sets a paper in Physics appropriate to a degree level and examiner 'B' sets a paper in Chemistry appropriate for matriculate level. In view of these peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of candidates who have opted for different subjects, can be ascertained. The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer scripts is in respect of a single subject. Moderation is no answer where the problem is to find inter se merit across several subjects, that is, where candidates take examination in different subjects. To solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a common scale. There are different methods of statistical scoring. Standard score method, linear standard score method, normalized equi-percentile method are some of the recognized methods for scaling.
25. A. Edwin Harper Jr. & V Vidya Sagar Misra in their publication "Research on Examinations in India" have tried to explain and define scaling. We may usefully borrow the same. A degree 'Fahrenheit' is different from a degree 'Centigrade'. Though both express temperature in degrees, the 'degree' is different for the two scales. What is 40 Degrees in Centigrade scale is 104 Degrees in Fahrenheit scale. Similarly, when marks are assigned to answer-scripts in different papers, say by Examiner 'A' in Geometry and Examiner 'B' in History, the meaning or value of the 'mark' is different. Scaling is the process which brings the mark awarded by Examiner 'A' in regard to Geometry scale and the mark awarded by Examiner 'B' in regard to History scale, to a common scale. Scaling is the exercise of putting the marks which are the results of different scales adopted in different subjects by different examiners into a common scale so as to permit comparison of inter se merit. By this exercise, the raw marks awarded by the examiner in different subjects is converted to a 'score' on a common scale by applying a statistical formula. The 'raw marks' when converted to a common scale are known as the 'scaled marks'. Scaling process, 365 OA No. 170/00961/2019 & Ors/CAT/BANGALORE whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination.
26. The Union Public Service Commission ('UPSC' for short) conducts the largest number of examinations providing choice of subjects. When assessing inter se merit, it takes recourse to scaling only in civil service preliminary examination where candidates have the choice to opt for any one paper out of 23 optional papers and where the question papers are of objective type and the answer scripts are evaluated by computerized/ scanners. In regard to compulsory papers which are of descriptive (conventional) type, valuation is done manually and scaling is not resorted to. Like UPSC, most examining authorities appear to take the view that moderation is the appropriate method to bring about uniformity in valuation where several examiners manually evaluate answer-scripts of descriptive/ conventional type question papers in regard to same subject; and that scaling should be resorted only where a common merit list has to be prepared in regard to candidates who have taken examination of different subjects, in pursuance of an option given to them.
27. But some Examining Authorities, like the Commission are of the view that scaling can be used, not only where there is a need to find a common base across different subjects (that is bringing the performance in different subjects to a common scale), but also as an alternative to moderation, to reduce examiner variability (that is where different examiners evaluate answer scripts relating to the same subject).
28. Let us now examine the reasons as to why the Commission adopted 'scaling' instead of moderation. The Committee states that the anomalies caused on account of 'examiner variability' was engaging its attention. It found that a candidate's score may depend upon the "chance' factor of whether his answers script is assessed by a lenient or a strict examiner; and that in an extreme case, while a candidate of a given merit may get a First Class/Division, another student of equal merit may be declared to have failed. Therefore, the Commission constituted a Committee to carry out an indepth study into the matter and suggest appropriate means to ensure that the evaluation was on more equitable basis. The Committee by its Report dated 2.9.1996 suggested statistical scaling system as the remedy and 366 OA No. 170/00961/2019 & Ors/CAT/BANGALORE recommended the linear standard score method which operates on the following formula :
Z= Assumed mean + [ (X-M) x Assumed S.D.] SD Z= is the Scaled Score.
X = is the Raw mark.
M = is the mean of Raw Marks of the group/subject. S.D. is the Standard Deviation of Raw Marks of the group/subject.
The Committee suggested the following 'assumptions' or 'parameters' for applying the formula :
(i) Assumed Mean will be taken as Half of the maximum marks of the group/subject.
(ii) Assumed S.D. will be taken as one-fifth of the assumed mean.
(iii) If scaled score is less than zero after scaling, then candidates will be allotted zero marks in the said group/subject.
(iv) If scaled score after scaling is more than maximum marks, then candidate will be allotted maximum marks in the said group/subject.
29. Ever since then, the Commission has been following the statistical scaling. According to the Commission, the scaling method is rational, scientific and reasonable and would lead to assessment of inter se merit of the candidates in a just and proper manner. The use of the said method was reviewed by an Expert Committee on 31.7.2000 and it was reiterated that the formula and method presently used for scaling can be continued to be used in future also and there was no need to change the same. Thus the scaling is continued.
30. We may at this stage refer to the condition to be fulfilled, for scaling to be effective. For this purpose, we are referring to passages from the Authors/Experts relied on by the Commission itself.
30.1) A. Edwin Harper & Vidya Sagar Misra (in 'Research on Examinations in India) make it clear that scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner.
367 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 30.2) A similar view is expressed by J.P. Guilford & Benjamin Fruchter (in their treatise 'Fundamental Statistics in Psychology and Education' page 476-477). They say that two conditions are to be satisfied to apply scaling:(i) The population of students from which the distributions of scores arose must be assumed to have equal means and dispersions in all the abilities measured by the different tests; and (ii) the form of distribution, in terms of skewness and kurtosis, must be very similar from one ability to another. He proceeds to refer to the disadvantages of scaling thus :
"Unfortunately, we have no ideal scales common to all these tests, with measurements which would tell us about these population parameters. Certain selective features might have brought about a higher mean, a narrower dispersion, and a negatively skewed distribution on the actual continuum of ability measured by one test, and a lower mean, a wider dispersion, and a symmetrical distribution on the continuum of another ability represented by another test. Since we can never know definitely about these features for any given population, in common scaling we often have to proceed on the assumption that actual means, standard deviations, and form of distribution are uniform for all abilities measured. In spite of these limitations, it is almost certain that derived scales provide more nearly comparable scales than do raw scores."
30.3) V. Natarajan & K. Gunasekaran in their treatise 'Scaling Techniques what, why and how', have warned:
"If one studies the literature in this field, he can find that there are a number of methods available ranging from simple to complex. Each has its own merits and demerits and can be adopted only under certain conditions or making certain assumptions."
The Authors describe the Linear Standard Score method (which is used by the Commission) thus :
"Unlike Z-score (Standard score) which has a mean of 'zero' and standard deviation 'one', the linear standard score has some pre-determined mean and standard deviations.
..the choice of the mean and standard deviations is purely arbitrary. Each has its own advantages and disadvantages 368 OA No. 170/00961/2019 & Ors/CAT/BANGALORE and useful for specific purpose only. It may be emphasized here that both the standard scores and linear standard scores retain the shape of the original distribution of raw marks. Therefore, if the original distribution is 'normally' distributed, then any type of Linear Standard Scores will also be 'normally' distributed. Taking the Normal Curve as the model, various points in other scales are plotted. It should be, however, noted that the kind of relationship shown in Figure -2 between normal curve vis-`-vis the other scores are valid only if the raw score distribution can be assumed to approximately normally distributed.(emphasis supplied) 30.4) The Kothari Report, 1976 ('Policy & Selection Methods' published by UPSC) while referring to scaling in regard to papers in different subjects, by using appropriate statistical techniques as a recognized procedure for improving the reliability of examination as a tool for selection, however cautions that the method should be under continuous review and evaluation, that continuing improvement in the light of experience and new developments, taking into account advancement of knowledge, is essential.
31. The entire basis for applying scaling in regard to marks awarded by different examiners in the same subject is the assumption that all answer scripts have been thoroughly mixed, and that equal number of answer scripts drawn at random and sent to each examiner for valuation will contain answer scripts of candidates with equal distribution of abilities. When the distribution of abilities in each batch is approximately equal, the mean marks and standard deviation of the scaled marks of each batch will be identical. To put it differently, if each examiner is sent 300 answer scripts and each batch of 300 candidates have almost equal number of good, average and poor standard students, they can all be brought to a common scale for comparing their merit inter se. But we find that there is no such broad equal distribution in the examination with which we are concerned. We find from the Tables furnished that the range of marks awarded and the range of deviation have varied enormously from examiner to examiner in the same subject. We extract below these ranges, which demonstrate the wide diversity, in turn indicating that scaling method was inappropriate for bringing uniformity in valuation :
Subject No. of No. of Mean Standa Minimum Maximum Exam Scripts Marks of rd Marks Marks iners Examin the (awarded (awarded 369 OA No. 170/00961/2019 & Ors/CAT/BANGALORE ed examiner Deviati by the by the (range) (range) on of Examiner) Examiner) marks allotted (range) 1 General 18 50 to 47.4 to 12.24 10 to 43 84 to Knowledge 800 83.91 to 126 20.49 2 Language 14 231 to 37.51 to 14.16 0 to 30 105 to 800 82.43 to 145
31.75 3 Law-I 11 300 to 30.83 to 12.45 0 to 10 83 to 900 56.90 to 113 17.85 4 Law-II 10 200 to 70.57 to 11.48 0 to 40 113 to 1402 94.40 to 132 20.05 5 Law-III 14 150 to 63.14 to 13.16 0 to 31 99 to 1000 86.74 to 134 19.54
32. The formula heavily relies upon the standard deviation among the candidates in a given pool or batch. The standard deviation is a measure of the range and distribution of marks awarded by an examiner. It depends on the set of students in any given pool. If an examiner has a set of extremely good or poor standard candidates and another examiner has a more even set of average candidates, the standard deviation would be high for the first examiner and low for the second examiner, having regard to the range of distribution of marks. Consequently the scaled marks of a candidate calculated on a formula heavily relying on standard deviation, would be based on the cumulative standard deviation of all the candidates in his pool rather than the strictness or liberality of the examiner. Therefore, standard deviation has only a bearing on ascertaining the range of capabilities of the candidates in a given examination and in no way eliminates the anomalies arising out of the strictness or liberality of the examiner. We may demonstrate the fact that the scaled marks vary with reference to the extent of standard deviation (and has nothing to do with the issue of strictness or liberality of the examiner), from the following examples :
Actual Average Strict Examiner No. I Strict Examiner No. II Marks (Mean) Marks Standard Scaled Standard Scaled 370 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Deviation Marks Deviation Marks 0 50 15 33 25 60 5 50 15 40 25 64 20 50 15 60 25 76 Actual Average Liberal Examiner No. I Liberal Examiner No. II Marks (Mean) Marks Standard Scaled Standard Scaled Deviation Marks Deviation Marks 50 90 15 47 25 68 120 90 15 140 25 124 150 90 15 180 25 148
33. The reason given for introducing scaling is to cure the disparity on account of strictness or liberality of the examiners. But the effect of the scaling formula adopted by Commission is to average the marks of a batch of candidates and convert the raw marks of each candidate in the batch into scaled marks with reference to the average marks of the batch and the standard deviation. The scaling formula therefore, does not address or rectify the effect of strictness or liberality of the examiner. The scaling formula is more suited and appropriate to find a common base and inter se merit, where candidates take examinations in different subjects. As the scaling formula has no nexus or relevance to give a solution to the problem of eliminating the variation or deviation in the standard of valuation of answer scripts by different examiners either on account of strictness or liberality, it has to be concluded that scaling is based on irrelevant considerations and ignores relevant considerations.
34. We will next refer to apparent anomalies which show scaling of marks is arbitrary. The Commission has furnished five Tables relating to the five subjects showing the following particulars : (i) The number of examiners,(ii) Number of answer scripts allotted to each examiner; (iii) Mean marks of each examiner; (iv) Standard deviation of the marks allotted by each examiner; (v) Minimum raw marks secured by a candidate in the batch of answer-scripts corrected by each examiner; (vi) Maximum raw marks secured by a candidate in the batch of answer-scripts corrected by each examiner. The Commission has also furnished the tabulation of scaled and actual marks of all the candidates. An examination of the particulars furnished discloses several glaring anomalies.
371 OA No. 170/00961/2019 & Ors/CAT/BANGALORE I. Award of high scaled marks to those who secured zero marks :
35. We find from Table-II (furnished by the Commission) that the answer scripts relating to Language Paper were distributed among 14 examiners. Several candidates whose papers were evaluated by examiners 2, 3, 4, 5, 6, 8, 13, & 14 have secured zero marks. Evidently only those who did not attempt any answer or had absolutely no knowledge of either Hindi or English would have got zero marks. But such candidates who actually secured zero marks have strangely been assigned scaled marks ranging from 36 to 67, depending upon the examiner, in whose pool, they fell. We give below scaled marks obtained by different candidates who secured zero marks with reference to the examiners.
Subject : Language Examiner Raw Scaled Marks No. Marks of the candidate 2 0 (100)+(0-66.58 x20) = 44 23.73 3 0 100+(0-55.29 x20) = 47 20.91 4 0 100+(0-74.88 x20) = 0(-5 to be taken as zero) 14.20 5 0 100+(0-44.48 x20) = 58 20.06 6 0 100+(0-61.52 x20) = 50 24.8 8 0 100+(0-52.86 x20) = 67 31.75 13 0 100+(0-43.11 x 20) = 66 25.50 14 0 100+(0-54.77 x20) = 36 17.02 But unfortunately in the same subject, candidates who secured 32 to 30 marks, assessed by Examiner No.10, got their marks 372 OA No. 170/00961/2019 & Ors/CAT/BANGALORE reduced to 31 to 28 on scaling. (Mean being 80.93 and SD being 14.16). The devastating effect of awarding such high scaled marks, that too ranging from 36 to 67, to those who have secured '0' need not be stressed. In fact UPSC has clarified that whenever they follow scaling procedure, no scaling is applied to '0' marks. But the Commission had not applied its mind to this aspect when applying 'scaling'.
II. Equalization of marks of persons who secured very high marks.
36. The scaling has equalized the different high end marks of candidates, where the mean marks is low. To give a hypothetical example if the mean marks is 70 and the standard deviation is 15, all candidates securing raw marks 145 to 200 will be assigned the equal scaled marks of 200. If the mean marks are 60 and the standard deviation is 15, all candidates securing 135 to 200 will be awarded the scaled marks of 200. Similarly, if the mean marks are 80 and the standard deviation is 20, all candidates securing raw marks between 180 to 200 will be awarded equal scaled marks of 200. In addition to the above hypothetical examples, we may give a concrete example. In regard to Examiner No. 14 in Language Paper, Table-II shows that the highest marks secured is 145. In regard to that examiner, the mean marks is 54.77 and standard deviation is 17.02. By applying the scaling formula, the marks of 145 secured by that candidate becomes 206 which is taken as 200 as per the formula. All candidates who were awarded raw marks of 140 to 145 by Examiner No. 14 in Language paper will be assigned the equal scaled marks of 200. This leads to unequals being treated as equals. In case of candidates securing marks in higher ranges on scaling, there is likelihood of their marks being equalised with those who secured lesser marks thereby losing the benefit of their higher marks and inter se merit.
III. Equalization of marks of persons who secured low marks.
37. The scaling has also equalized the different low end marks of candidates, where the mean marks is high. To give a hypothetical example, if the mean marks is 95 and the standard deviation is 11, then all candidates securing 40 and below will be awarded only '0'. To give a concrete example, in regard to Examiner No. 7 in Law Paper-II, one candidate has secured 32. In respect of that examiner, the mean marks is 94.4 and standard deviation is 11.48. By applying the scaling formula, the scaled marks of the said candidate who secured 32 becomes '0'. Not 373 OA No. 170/00961/2019 & Ors/CAT/BANGALORE only that. Scaled marks of all candidates who were given raw marks of 37 and less by that examiner, becomes '0'. This leads to unequals being treated as equals and candidates who secured marks in the lower ranges (from that examiner) losing out to candidates who performed much worse but were in the pool of other examiners.
IV. Inadequate mixing of answer scripts and improper distribution of answer scripts :
38. The basic requirement for scaling is that all answer scripts will be mixed thoroughly and that approximately equal number of answer scripts drawn at random will be allotted to each examiner so as to infer equal distribution of ability of candidates in each batch of answer scripts. But that was apparently not done by the Commission. We give below the details of distribution of answer scripts which demonstrate that they were nowhere equal :
General Knowledge Paper (18 Examiners) - The distribution of answer scripts is : 50 papers (2 examiners), 100 (3 examiners), 150 (1 examiner), 200 (2 examiners), 250 (2 examiners), 300 (1 examiner), 350 (1 examiner), 400 (1 examiner), 500 (2 examiners), 648 (1 examiners) and 800 (2 examiners).
Language Paper (14 Examiners)The distribution of answer scripts is : 231 papers (1 examiner), 300 (5 examiners), 350 (1 examiner), 400 (2 examiners), 450 (3 examiners), 700 (1 examiner), 800 (1 examiner).
Law Paper-I (11 Examiners) - The distribution of answer scripts is : 100 papers (1 examiner), 300 (2 examiners), 400 (2 examiners), 450 (1 examiner), 600 (1 examiner), 700 (1 examiner), 775 (1 examiner), 800 (1 examiner), 900 (1 examiner).
Law paper-II (10 examiners) - The distribution of answer scripts is : 200 papers (1 examiner), 300 (1 examiner), 350 (1 examiner), 450 (1 examiner), 500 (2 examiners), 650 (2 examiners), 700 (1 examiner), 1402 (1 examiner).
Law paper-III (14 examiners) The distribution of answer scripts is : 150 papers (3 examiners), 200 (1 examiner), 250 (1 examiner), 300 (1 examiner), 350 (2 examiners), 400 (1 examiner), 444 (1 examiner), 500 (1 examiner), 550 (1 examiner), 900 (1 examiner), 1000 (1 examiner).
374 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
39. Very large variation in the number of answer scripts allotted to each examiner has a bearing on the mean marks and the standard deviation. The fact that there was no proper randomization and distribution is also evident from the fact that though approximately equal number appeared in each segment of 10000 from among the roll nos. 1 to 51524, selection is inexplicably high in the first segment of roll nos. 1 to 10000. The particulars of roll number segments and the number of persons who appeared for the main examination from each segment are as follows :
Roll Numbers No. of Persons
1. 1-10000 1072
2. 10001 to 20000 1115
3. 20001 to 30000 1124
4. 30001 to 40000 1031
5. 40001 to 50000 1112
6. 50001 to 51524 170
40. If there was proper randomization and distribution leading to equal distribution of the candidate capacity, it would have been expected that the number of selected candidates also would have been proportionate to each segment. But we find that out of 347 candidates selected, as many as 139 candidates fall in first segment alone (within Roll nos. 1 to 10000) and 208 fall in the next five segments put together. Significantly out of the top 150 selected candidates, as many as 68 candidates also fall within Roll nos. 1 to 10000. Be that as it may.
V. Low raw marks were further lowered (or made into '0') and higher raw marks were further increased due to scaling Example : Law Paper-II.
Examiner No. 5 : 33 became 9; and 120 became 146 Examiner No. 6 : All marks between 9 and 1 became 0; and 119 became 139 Examiner No. 7 : All marks between 37 and 1 became 0; and 132 became 165 Examiner No. 9 : 4 became 0; and 122 became 156 In contrast, in some cases all raw marks whether low or high, became higher.
Example : Law Paper-I. Examiner No. 4 : 1 became 56; and 102 became 177. Examiner No. 6 : 9 became 66; and 85 became 184.
Examiner No. 9 : 1 became 60; and 107 became 184. Examiner No. 10 : 9 became 49; and 83 became 156.
375 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
42. The petitioners have referred to certain other absurdities arising from the application of scaling, with reference to the results of 2000 examination which was the subject matter of S.C. Dixit. (For example, it was demonstrated that in some cases, the low marks awarded by liberal examiners had increased and high marks awarded by strict examiners had reduced, thereby achieving the opposite of the goal sought to be achieved -- that marks given by liberal examiners should be reduced and marks given by strict examiners should be increased). We however consider it appropriate to rely only on the anomalies/absurdities demonstrable with reference to the 2003 examination which is the subject matter of these petitions, and do not propose to rely on the anomalies noticed in regard to the 2000 examination.
43. When selections are made on the basis of the marks awarded, and the inter se ranking depends on the marks awarded, treating unequals equally, or giving huge marks to candidates who have secured zero marks in some subjects make the process wholly irrational, virtually bordering on arbitrariness. It is no doubt true that such irrationality may adversely affect only those cases which are at either end of the spectrum, and if they are excluded, by and large the scaling system may be functional. But if the extreme cases are even 20 out of 5000 for each of the subjects, it becomes 100 for 5 subjects, which means that the results of as many as 100 are likely to be affected. It may be more also. In that process, at least 5% to 10% of the vacancies are likely to be filled up by less meritorious candidates. This will lead to considerable heart-burn and dissatisfaction. When the object of the selection process is to try to select the best, and even one mark may make the difference between selection or non-selection, the system of scaling which has the effect of either reducing or increasing the marks in an arbitrary manner will lead to unjust results. This is in addition to the main disadvantage that scaling does not remedy the ill-effects of examiner variability arising out of strictness or liberality in valuation.
44. The illustrations given above with reference to the 2003 examinations clearly demonstrate the arbitrariness and irrationality of scaling, particularly in cases falling at the two ends of the spectrum. We, therefore, hold that scaling system as adopted by the Commission is unsuited for the Civil Judge (Junior Division) Examination.
45. We may now summarize the position regarding scaling thus :
376 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
(i) Only certain situations warrant adoption of scaling techniques.
(ii) There are number of methods of statistical scaling, some simple and some complex. Each method or system has its merits and demerits and can be adopted only under certain conditions or making certain assumptions.
(iii) Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner.
(iv) In the Linear Standard Method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability.
(v) Any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process.
(vi) Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve examiner variability arising from the 'hawk-dove' effect (strict/liberal valuation).
46. The material placed does not disclose that the Commission or its expert committee have kept these factors in view in determining the system of scaling. We have already demonstrated the anomalies/absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is in place, the Commission may follow the moderation system set out in Para 23 above with appropriate modifications.
47. We may now refer to the decision of this Court in S. C. Dixit. The validity of scaling was considered in paras 31 to 33 of the judgment extracted below :
"31. There is a vast percentage difference in awarding of marks between each set of examiners and this was sought to be minimized by applying the scaling formula. If scaling method had not been used, only those candidates whose answer-sheets were examined by liberal examiners alone would get selected and the candidates whose answer- sheets were examined by strict examiners would be completely excluded, though the standard of their answers may be to some extent similar. The scaling system was adopted with a view to eliminate the inconsistency in the 377 OA No. 170/00961/2019 & Ors/CAT/BANGALORE marking standards of the examiners. The counsel for the respondents could not demonstrate that the adoption of scaling system has in any way caused injustice to any meritorious candidate. If any candidate had secured higher marks in the written examination, even by applying scaling formula, he would still be benefited.
32. The Division Bench of the High Court observed that the process of scaling was done examiner-wise only and the scaling formula did not take into consideration the average of mean of all the candidates in one particular paper but took the mean of only that group of candidates which has been examined by one single examiner. The counsel for U.P. PSC submitted that the observation made by the High Court is incorrect. The scaling formula was adopted to remove the disparity in the evaluation of 14 examiners who participated in the evaluation of answer-sheets and the details have also been furnished as to how the scaling formula was adopted and applied. Therefore, we do not think that the observation of the Division Bench that the Commission did not take care of varying standards which may have been applied by different examiners but has sought to reduce the variation of the marks awarded by the same examiner to different candidates whose answer- sheets had been examined, is correct. The Division Bench was of the view that as a result of scaling, the marks of the candidates who had secured zero marks were enhanced to 18 and this was illegal and thus affected the selection process. The finding is to be understood to mean as to how the scaling system was applied. 18 marks were given notionally to a candidate who secured zero marks so as to indicate the variation in marks secured by the candidates and to fix the mean marks.
33. In that view of the matter, we do not think that the application of scaling formula to the examinations in question was either arbitrary or illegal. The selection of the candidates was done in a better way. Moreover, this formula was adopted by U.P. PSC after an expert study and in such matters, the court cannot sit in judgment and interfere with the same unless it is proved that it was an arbitrary and unreasonable exercise of power and the selection itself was done contrary to the Rules. Ultimately, the agency conducting the examination has to consider as to which method should be preferred and adopted having regard to the myriad situations that may arise before them."
378 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
48. S. C. Dixit, therefore, upheld scaling on two conclusions, namely (i) that the scaling formula was adopted by the Commission after an expert study and in such matters, court will not interfere unless it is proved to be arbitrary and unreasonable; and (ii) the scaling system adopted by the Commission eliminated the inconsistency arising on account of examiner variability (differences due to evaluation by strict examiners and liberal examiners). As scaling was a recognized method to bring raw marks in different subjects to a common scale and as the Commission submitted that they introduced scaling after a scientific study by experts, this Court apparently did not want to interfere. This Court was also being conscious that any new method, when introduced, required corrections and adjustments from time to time and should not be rejected at the threshold as unworkable. But we have found after an examination of the manner in which scaling system has been introduced and the effect thereof on the present examination, that the system is not suitable. We have also concluded that there was no proper or adequate study before introduction of scaling and the scaling system which is primarily intended for preparing a common merit list in regard to candidates who take examinations in different optional subjects, has been inappropriately and mechanically applied to a situation where the need is to eliminate examiner variability on account of strict/liberal valuation. We have found that the scaling system adopted by the Commission leads to irrational results, and does not offer a solution for examiner variability arising from strict/liberal examiners. Therefore, it can be said that neither of the two assumptions made in S.C. Dixit can validly continue to apply to the type of examination with which we are concerned. We are therefore of the view that the approval of the scaling system in S.C. Dixit is no longer valid.
49. Learned counsel for the Commission contended that scaling has been accepted as a standard method of evaluation in the following decisions and therefore it should be approved :-
(i) Kamlesh Haribhai Goradia vs. Union of India [1987 (1) Guj.LR 157], upheld by this Court by order dated 11.3.1987 in SLP (C) No. 14000/1986.
(ii) Muhesh Kumar Khandelwal vs. State of Rajasthan [1994 (1) Raj.LR 533] upheld by this Court by order dated 22.1.1996 in SLP(c) No. 15682-15684 of 1994.
(iii) K. Channegowda vs. Karnataka Public Service Commission [2005(12) SCC 688).
379 OA No. 170/00961/2019 & Ors/CAT/BANGALORE All the three cases related to moderation and not scaling. There are, however, passing references to scaling as one of the methods to achieve common standard of assessment. The fact that scaling is a standard method of assessment, when a common base has to be found for comparative assessment of candidates taking examinations in different optional subjects, is not in dispute. In fact the Commission may continue to adopt the said system of scaling, where a comparative assessment is to be made of candidates having option to take different subjects. The question is whether scaling, in particular, linear standard scaling system as adopted by the Commission, is a suitable process to eliminate 'examiner variability' when different examiners assess the answer scripts relating to the same subject. None of the three decisions is of any assistance to approve the use of method of 'scaling' used by the Commission.
50. Learned counsel for the Commission also referred to several decisions in support of its contention that courts will be slow to interfere with matters affecting policy requiring technical expertise and leave them for decision of experts. (State of U.P. v. Renusagar Power Co. Ltd. - 1988 (4) SCC 59, Tata Iron & Steel Co. Ltd. v. Union of India 1996 (9) SCC 709, Federation of Railway Officers Association v. Union of India 2003 (4) SCC
289). There can be no doubt about the said principle. But manifest arbitrariness and irrationality is an exception to the said principle. Therefore, the said decisions are of no avail.
51. We should, however, record the fair submission on behalf of the Commission that it is not irrevocably committed to any particular system and will adopt a different or better system if the present system is found to be defective.
Re : Question (iv).
52. The petitioners have requested that their petitions should be treated as being in public interest and the entire selection process in regard to Civil Judge (Junior Division) Examination, 2003 should be set aside. We are unable to accept the said contention. What has been made out is certain inherent defects of a particular scaling system when applied to the selection process of the Civil Judges (Junior Division) where the problem is one of examiner variability (strict/liberal examiners). Neither mala fides nor any other irregularities in the process of selection is made out. The Commission has acted bona fide in proceeding with the selection and neither the High Court nor the State Government had any grievance in regard to selections. In fact, 380 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the scaling system applied had the seal of approval of this Court in regard to the previous selection in S.C. Dixit (supra). The selected candidates have also been appointed and functioning as Judicial Officers. Further as noticed above, the scaling system adopted by the Commission has led to irrational and arbitrary results only in cases falling at the ends of the spectrum, and by and large did not affect the major portion of the selection. We, therefore, direct that our decision holding that the scaling system adopted by the Commission is unsuited in regard to Civil Judge (Junior Division) Examination and directing moderation, will be prospective in its application and will not affect the selections and appointments already made in pursuance of the 2003 Examination.
53. However, in so far as the petitioners are concerned, we deem it proper to issue the following directions to do complete justice on the facts of the case :
a) If the aggregate of raw marks in the written examination and the marks in the interview of any petitioner is less than that of the last selected candidate in the respective category, he will not be entitled to any relief (for example, the petitioners in WP(C) No. 165/2005 belonging to the Category 'BC' have secured raw marks of 361 and 377 respectively in the written examinations, whereas the last five of the selected candidates in that category have secured raw marks of 390, 391, 397, 438 and 428 respectively. Even after adding the interview marks, the marks of the petitioners in W.P. [C] No.165/2005 is less than the marks of the selected candidates).
b) Where the aggregate of raw marks in the written examination and the interview marks of any petitioner, is more than the aggregate of the raw marks in the written examination and interview marks of the last selected candidate in his category, he shall be considered for appointment in the respective category by counting his appointment against future vacancies. (For example, we find that petitioner Archna Rani, one of the petitioners in WP (C) No. 467/2005 has secured 384 raw marks which is more than the raw marks secured by the last five selected candidates [347, 337, 336, 383 and 335] under the SC category and even after adding the interview marks, her marks are more than the five selected candidates. Hence, she should be considered for appointment). This relief will be available only to such of the petitioners who have 381 OA No. 170/00961/2019 & Ors/CAT/BANGALORE approached this Court and the High Court before 31st August, 2005.
54. The petitions are allowed in part accordingly."
106. The applicants also raise an allegation that the order now sought to be imposed on them had a genesis in 2012 whereas the alleged issue arose in 1998, i.e., 14 years back. The question of limitation was brought in by a special enactment as stale elements in an issue should not be allowed to tarnish or varnish anyone's life or reputation. They rely on the judgment of the Hon'ble Apex Court in Printers (Mysore) Limited Vs. M.A. Rasheed and Others reported in (2004) 4 SCC 460 wherein the Hon'ble Apex Court held that "writ petition challenging such allotment filed three years after the making of allotment and execution of sale deed, held, ought to have been dismissed."
107. Therefore, they would say that a fundamental issue could not be raised as the KPSC, which ought to have raised it, were under a climate of fear and, therefore, since they did not raise the fundamental issue and the applicants are yet to receive an opportunity of raising any such issue but then, before the culmination of any opportunity, their lives and livelihood is sought to be extinguished. We quote from the Printers judgment of the Hon'ble Apex Court:
"The Printers (Mysore) Ltd. APPELLANTS
Versus
382 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
M.A. Rasheed & Ors. RESPONDENTS
Civil Appeal No. 4593 of 1999
DATE OF JUDGMENT: 05/04/2004
BENCH:
V.N. Khare CJI, S.B. Sinha & S.H. Kapadia.
JUDGMENT:
S.B. SINHA, J :
INTRODUCTION:
1. Validity of a sale deed dated 19.6.1985 executed by the Bangalore Development Authority (hereinafter referred to as 'the Authority') in favour of the appellant herein was questioned by the first respondent before the High Court by way of a public interest litigation which has been allowed by reason of the impugned judgment.
FACTUAL BACKGROUND:
2. The appellant is a company incorporated under the Companies Act engaged in printing and publishing of newspapers and periodicals. For grant of allotment of a suitable plot for establishing an industry, an application was filed by it before the said Authority and upon consideration thereof, a plot admeasuring 1 acre 20 guntas under the Byrasandra- Travaekere-Madivala (BTM) was allotted on a consideration of Rs.1,87,500/-. On the said amount having been deposited by the appellant, a deed of sale was executed in its favour by the authority on or about 29.6.1985. The appellant was also put in possession thereof. A licence for fencing the property was also obtained by the appellant.
3. In 1988, a public interest litigation was filed by the First Respondent herein, inter alia, on the ground that the impugned alienation was against public policy and, thus, illegal and void having regard to the fact neither any public auction was held therefor; nor any tender was called for; nor any public advertisement for sale of the said land was issued.
4. The contention of the appellant in the aforementioned writ petition, inter alia, was that the said writ petition in the nature of 383 OA No. 170/00961/2019 & Ors/CAT/BANGALORE public interest litigation was in fact filed by the First Respondent at the instance of one S.A. Krishnappa who had been unsuccessful at earlier stages in his attempt to stall the acquisition proceedings. It was contended that one Mohd. Ibrahim had also filed a suit to achieve the same purpose but it was dismissed. In the said writ petition the locus of the writ petitioner was also questioned.
5. A learned Single Judge of the High Court allowed the said writ application by an order dated 29.1.1996 holding that the allotment in favour of the appellant herein by the Authority being a bulk one, the same was contrary to the provisions of the Bangalore Development Authority Act (for short 'the Act').
6. Aggrieved by and dissatisfied therewith, the appellant preferred a Letters Patent Appeal. A Division Bench of the High Court dismissed the same holding that establishment of an industry cannot be termed as a step towards development of the Bangalore Metropolitan Area. Noticing that under the the Act three different sets of rules had been framed and interpreting Section 38 thereof, it was held that the provisions of the rules would govern the transfer of land.
SUBMISSIONS:
7. Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of the appellant assailing the impugned judgment, would submit that the High Court committed a manifest error insofar as it failed to take into consideration that there was no legal impediment for allotment of the land by the Authority to the appellant for the purpose of setting up of an industry for printing and publishing of newspapers. The learned counsel would urge that the power to lease, sell or otherwise transfer an immovable property having been conferred on the Authority under the Act, no illegality can be said to have been committed in transferring the land in question in favour of the appellant. Establishment of an industry for printing and publishing newspapers, it was argued, comes within the purview of development of the metropolitan area. Mr.Shanti Bhushan would urge that Section 38 of the Act confers an unrestricted power to lease, sell or transfer movable or immovable property for the purpose of any development scheme.
8. Mr. S.N. Bhat, learned Senior Counsel appearing on behalf of the first respondent, on the other hand, would contend that the land in question having been earmarked for housing, the same 384 OA No. 170/00961/2019 & Ors/CAT/BANGALORE could not have been allotted in favour of the appellant without any tender having been issued or without issuing any advertisement therefor. The High Court, Mr. Bhat would contend, has rightly set aside the allotment made by the Authority in favour of the appellant having regard to the provision contained in Section 38 of the Act. Bulk allotment, the learned counsel would argue, is covered by Section 38B of the Act which admittedly is not attracted in the instant case.
STATUTORY PROVISIONS :
9. The said Act was enacted for the establishment of a development of a Development Authority for the development of the City of Bangalore and areas adjacent thereto and for matters connected therewith.
10. 'Development' has been defined in Section 2(j) to mean :
"Development" with its grammatical variations means the carrying out of building, engineering, or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment"
11. Chapter III of the Act provides for development schemes. In terms of Section 15 of the Act, the Authority may draw up detailed schemes for the development of Bangalore Metropolitan Area and with the previous approval of the Government undertake from time to time any works for the Bangalore Metropolitan Area and incur expenditure therefor and also for framing and execution of development schemes. It is also entitled to take up any new or additional scheme from time to time.
12. Sections 38 of the Act reads thus :
"38. Power of Authority to lease, sell or transfer property.- Subject to such restrictions, conditions and limitations as may be prescribed, the authority shall have power to lease, sell or otherwise transfer any movable or immovable property which belongs to it, and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme."
13. Section 38-B of the Act provides as under :
"38-B. Power of Authority to make bulk allotment. Notwithstanding anything contained in this Act or 385 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Development Scheme sanctioned under this Act, the authority may, subject to any restriction, condition and limitation as may be prescribed, make bulk allotment by way of sale, lease or otherwise of any land which belongs to it or is vested in it or acquired by it for the purpose of any development scheme.
(i) to the State Government; or
(ii) to the Central Government, or
(iii) to any Corporation, Body or Organisation owned or controlled by the Central Government or the State Government; or
(iv) to any Housing Cooperative Society registered under the Karnataka Cooperative Societies Act, 1959 (Karnataka Act 11 of 1959); or
(v) to any society registered under the Karnataka Societies Registration Act, 1960 (Karnataka Act 7 of 1960); or
(vi) to a trust created wholly for charitable, educational or religious purpose:
Provided that prior approval of the Government shall be obtained for allotment of land to any category listed above."
FINDINGS:
14. The first respondent in paragraph 3 of the writ petition averred :
"...In the said Link Road, huge Industrial Estates have come up and potentiality of the acquired lands being increased by leaps and bounds..."
15. The alienation of the land in question in favour of the appellant herein, as noticed hereinbefore, was questioned only on the ground that no auction was held nor any tender therefor was called for and furthermore no public advertisement was issued prior to making of the impugned allotment. No contention had been raised in the writ petition to the effect that the land could not be alienated by the Authority for setting up of an industrial undertaking. In fact, as noticed hereinbefore, the first respondent in the writ petition accepted that huge industrial area had come up as a result whereof the potentiality of the acquired 386 OA No. 170/00961/2019 & Ors/CAT/BANGALORE lands had been increased by leaps and bounds. The thrust of the writ petition was, thus, on legality of the acquisition of the land or amount of compensation payable therefor.
16. The Division Bench of the High Court, in our opinion, misconstrued and misinterpreted the provision of Section 38 of the Act. A bare perusal of the of the said provision would demonstrate that the Authority has power to lease, sell or otherwise transfer any movable or immovable property belonging to it, subject to such restrictions, conditions and limitations, as may be prescribed. The State of Karnataka has framed three rules under the Act, namely, (i) Bangalore Development Authority (Allotment of Sites) Rules, 1982; (ii) Bangalore Development Authority (Allotment of Buildings under Self Financing Housing Scheme) Rules, 1982; and (iii) Bangalore Development Authority (Disposal of Corner Sites and Commercial Sites) Rules, 1984.
17. It is beyond any cavil that the provisions of the aforementioned three sets of rules were not applicable to the allotment in question. If the provisions of the said rules are not applicable in the instant case, the question of power of the Authority being restricted, conditioned or limited in selling or otherwise transferring the property would not arise.
18. In Surinder Singh Vs. Central Government and Others [(1986) 4 SCC 667], it was held:
"6. The High Court has held that the disposal of property forming part of the compensation pool was "subject" to the rules framed as contemplated by Sections 8 and 40 of the Act and since no rules had been framed by the Central Government with regard to the disposal of the urban agricultural property forming part of the compensation pool, the authority constituted under the Act had no jurisdiction to dispose of urban agricultural property by auction sale. Unless rules were framed as contemplated by the Act, according to the High Court the Central Government had no authority in law to issue executive directions for the sale and disposal of urban agricultural property. This view was taken, placing reliance on an earlier decision of a Division Bench of that court in Bishan Singh v. Central Government. [(1961) 63 Punj LR 75]. The Division Bench in Bishan case [(1961) 63 Punj LR 75] took the view that since the disposal of the compensation pool property was subject to the rules that may be made, and as no rules had been framed, the Central Government had no authority in law to issue 387 OA No. 170/00961/2019 & Ors/CAT/BANGALORE administrative directions providing for the transfer of the urban agricultural land by auction sale. In our opinion the view taken by the High Court is incorrect. Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression "subject to the rules" only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute."
19. In Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr. [2004 (1) SCALE 224] this Court noticed:
"Subject to" is an expression whereby limitation is expressed. The order is conclusive for all purposes.
20. This Court further noticed the dictionary meaning of "subject to" stating:
"Furthermore, the expression 'subject to' must be given effect to.
In Black's Law Dictionary, Fifth Edition at page 1278 the expression "Subject to" has been defined as under :
"Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided, answerable for. Homan v. Employers Reinsurance Corp,., 345 Mo. 650, 136 S.W. 2d 289, 302"
21. Reliance placed by Mr. Bhat in K.R.C.S. Balakrishna Chetty and Sons & Co. vs. The State of Madras [AIR 1961 SC 1152] is misplaced. In that case, an exemption provision contained in Section 5 of the Madras General Sales Tax Act was invoked which could be granted only subject to such restrictions and conditions, as may be prescribed and in that context it was held :
"...On a proper interpretation of the section it only means that the exemption under the licence is conditional upon the 388 OA No. 170/00961/2019 & Ors/CAT/BANGALORE observance of the conditions prescribed and upon the restrictions which are imposed by and under the Act whether in the rules or in the licence itself; that is, a licensee is exempt from assessment as long as he conforms to the conditions of the licence and not that he is entitled to exemption whether the conditions upon which the licence is given are fulfilled or not. The use of the words "subject to" has reference to effectuating the intention of the law and the correct meaning, in our opinion, is "conditional upon."
22. In the instant case, it would appear, that no restriction, condition or limitation has been prescribed and in that view of the matter, the High Court, in our opinion, committed a manifest error in holding that the provisions of the said rules would apply to any transfer made by the Authority in favour of any person. A similar question came up for consideration before this Court in Chairman & MD, BPL Ltd. vs. S.P. Gururaja and Others [(2003 8 SCC 567]. This Court in that case examined in details the provisions of the said Act vis-`-vis the Karnataka Industrial Areas Development Act, 1966. Therein also allotment of a peace of land in favour of an industrial undertaking was in question. The Court referred to a large number of decisions including Guruvayoor Devaswom Managing Committee and Another vs. C.K. Rajan and Others [(2003) 7 SCC 546] and held :
"Mr. Subba Rao referred to N.M. Thomas (supra) for the proposition that court is also a 'State' within the meaning of Article 12 but that would not mean that in a given case the court shall assume the role of the Executive Government of the State. Statutory functions are assigned to the State by the Legislature and not by the Court. The Courts while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers which, however, although does not mean that the Court shall not step-in in any circumstance whatsoever but the Court while exercising its power must also remind itself about the rule of self-restraint. The Courts, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory functionaries. It allows them to perform their duties at the first instance.
The court steps in by Mandamus when the State fails to perform its duty. It shall also step in when the discretion is exercised but the same has not been done legally and validly. It steps in by way of a judicial review over the 389 OA No. 170/00961/2019 & Ors/CAT/BANGALORE orders passed. Existence of alternative remedy albeit is no bar to exercise jurisdiction under Article 226 of the Constitution of India but ordinarily it will not do so unless it is found that an order has been passed wholly without jurisdiction or contradictory to the constitutional or statutory provisions or where an order has been passed without complying with the principles of natural justice. (See Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1
70. Exercise of self-restraint, thus, should be adhered to, subject of course to, just exceptions."
The Court further held: (SCC p. 588, para 30) "30.Dawn Oliver in Constitutional Reform in the UK under the heading 'The Courts and Theories of Democracy, Citizenship, and Good Governance' at page 105 states:
"However, this concept of democracy as rights-based with limited governmental power, and in particular of the role of the courts in a democracy, carries high risks for the judges
- and for the public. Courts may interfere inadvisedly in public administration. The case of Bromley London Borough Council v. Greater London Council ([1983] 1 AC 768, HL) is a classic example. The House of Lords quashed the GLC cheap fares policy as being based on a misreading of the statutory provisions, but were accused of themselves misunderstanding transport policy in so doing. The courts are not experts in policy and public administration - hence Jowell's point that the courts should not step beyond their institutional capacity (Jowell,2000). Acceptance of this approach is reflected in the judgments of Laws LJ in International Transport Roth GmbH Vs. Secretary of State for the Home Department ([2002] EWCA Civ 158, [2002] 3 WLR 344) and of Lord Nimmo Smith in Adams v. Lord Advocate (Court of Session, Times, 8 August 2002) in which a distinction was drawn between areas where the subject matter lies within the expertise of the courts (for instance, criminal justice, including sentencing and detention of individuals) and those which were more appropriate for decision by democratically elected and accountable bodies. If the courts step outside the area of their institutional competence, government may react by getting Parliament to legislate to oust the jurisdiction of the courts altogether. Such a step would 390 OA No. 170/00961/2019 & Ors/CAT/BANGALORE undermine the rule of law. Government and public opinion may come to question the legitimacy of the judges exercising judicial review against Ministers and thus undermine the authority of the courts and the rule of law."
23. The said decision squarely applies to the fact of the present case. Section 38-B which was inserted by Act No.17 of 1994 w.e.f. 20.12.1975 cannot have any application to the facts and circumstances of the instant case. The provisions of Section 38 and 38B operate in different fields. By reason of Section 38B of the Act, the legislature contemplated bulk transfer of land in favour of the Authorities mentioned therein which, may carry out the development scheme or deal with the matter in accordance with law. The High Court, in our opinion, has not correctly applied the principles of law governing the field inasmuch as it cannot be said that allotment of a plot measuring 1 acre 20 guntas is a bulk allotment. Whenever an allotment of land is made for industrial purpose, it cannot be restricted to a small peace of land. The extent of land sought to be allotted must be commensurate with the purpose for which the same is made.
24. Reliance placed by Mr. Bhat upon Padma vs. Hiralal Motilal Desarda & Ors. [2002 (6) SCALE 683] is again misplaced. In that case, it was categorically held that the sale of bulk land by an institution like CIDCO was an anathema to its objective and purpose or its establishment. Such alienation was held to be contrary to the law dealing with development planning. It was further found therein that the land in question was required as buffer for maintaining the ecology balance. Such is not the position herein.
25. Furthermore, the writ petition should not have been entertained keeping in view the fact that it was filed about three years after making of the allotment and execution of the deed of sale. The High Court should have dismissed the writ petition on the ground of delay and laches on the part of the first respondent. The Division Bench of the High Court also does not appear to have considered the plea taken by the appellant herein to the effect that the first respondent had been set up by certain interested persons. In a public interest litigation, the Court should, when such a plea is raised, determine the same.
26. For the reasons aforementioned, the impugned judgment cannot be sustained. It is accordingly set aside. The appeal is allowed. The writ petition filed by the respondent stands dismissed. No costs."
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108. The applicant would submit that the Hon'ble Apex Court judgment in State of Punjab Vs. Salil Sabhlok and Others reported in 2013 (5) SCC 1 is of cardinal interest. We quote from it:
"(2013) 5 Supreme Court Cases 1 (BEFORE A.K. PATNAIK AND MADAN B. LOKUR, JJ.) State of Punjab ... Appellant Versus Salil Sabhlok & Ors. ... Respondents JUDGMENT A. K. PATNAIK, J.
Leave granted in S.L.P. (C) Nos. 22010-22012 of 2011.In these appeals against the judgment and orders of the Punjab and Haryana High Court, a very important question of law arises for our decision: whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution can lay down the procedure for the selection and appointment of the Chairman of the State Public Service Commission and quash his appointment in appropriate cases.
Facts:
2. The relevant facts very briefly are that by notification dated 07.07.2011, the State Government of Punjab appointed Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission. On 10.07.2011, the respondent No.1 who was an Advocate practicing at the Punjab and Haryana High Court, Chandigarh, filed a public interest litigation under Article 226 of the Constitution (Writ Petition No.11846 of 2011) praying for a mandamus directing the State Government to frame regulations governing the conditions of service and appointment of the Chairman and/or the Members of the Public Service Commission as envisaged in Article 318 of the Constitution of India. The respondent No.1 also prayed for a direction restraining the State Government from appointing Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission in view of the fact that his appointment does not fall within the parameters of integrity, 392 OA No. 170/00961/2019 & Ors/CAT/BANGALORE impartiality and independence as reiterated time and again by this Court.
3. The Division Bench of the High Court, after hearing the learned counsel for the writ petitioner and the learned Additional Advocate General for the State of Punjab, passed an order on 13.07.2011 holding that even though Article 316 of the Constitution does not prescribe any particular procedure for appointment of Chairman of the Public Service Commission, having regard to the purpose and nature of the appointment, it cannot be assumed that the power of appointment need not be regulated by any procedure. Relying on the judgments of this Court in the case of In R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission [(2000) 4 SCC 309], Ram Kumar Kashyap and another vs. Union of India and another (AIR 2010 SC 1151) and In re Mehar Singh Singh Saini, Chairman, HPSC and others [(2010) 13 SCC 586], the Division Bench held that it is not disputed that the persons to be appointed as Chairman and Members of the Public Service Commission must have competence and integrity.
4. The Division Bench of the High Court further held that a question, therefore, arises as to how such persons are to be identified and selected for appointment as Chairman of the Public Service Commission and whether, in the present case, the procedure adopted was valid and if not, the effect thereof. The Division Bench further observed that these questions need to be considered by a Bench of three Judges and referred the matter to the Bench of three Judges of the High Court.
5. Pursuant to the order dated 13.07.2011 of the Division Bench, the Chief Justice of the High Court constituted a Full Bench. On 19.07.2011, the Full Bench of the High Court passed an order calling for certain information from the State Government of Punjab and the Punjab Public Service Commission on the number of posts filled up by the Public Service Commission in the last five years, the number of posts taken out from the purview of the Public Service Commission in the last five years and regulations, if any, framed by the State Government. On 01.08.2011, the Full Bench of the High Court also passed orders requiring the Union of India to furnish information on three questions:
5. (1) Whether there were any criteria or guidelines to empanel a candidate for consideration for appointment as a Member of the Union India Public Service Commission;
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5. (2) Which authority or officer prepares such panel; and
5. (3) What methodology is kept in view by the authority while preparing the panel.
6. Aggrieved by the order dated 13.07.2011 of the Division Bench of the High Court and the orders dated 19.07.2011 and 01.08.2011 of the Full Bench of the High Court, the State of Punjab filed Special Leave Petitions (C) Nos.22010-22012 of 2011 before this Court. On 05.08.2011, this Court, while issuing notice in the Special Leave Petitions, made it clear that issuance of notice in the Special Leave Petitions will not come in the way of the High Court deciding the matter and the State of Punjab is at liberty to urge all contentions before the High Court.
Accordingly, the Full Bench of the High Court heard the matters on 08.08.2011 and directed the Chief Secretary of the State of Punjab to remain present at 2.00 P.M. along with the relevant files which contain the advice of the Chief Minister to the Government. The Chief Secretary of the State of Punjab produced the original files containing the advice of the Chief Minister to the Governor of Punjab and after seeing the original files, the Full Bench of the High Court returned the same and reserved the matter for judgment.
7. Thereafter, the Full Bench of the High Court delivered the judgment and order dated 17.08.2011 directing that till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 is made, both the State of Haryana and the State of Punjab shall follow the procedure detailed hereunder as part of the decision-making process for appointment as Members and Chairman of the Public Service Commission:-
7. 1. There shall be Search Committee constituted under the Chairmanship of the Chief Secretary of the respective State Governments.
7. 2. The Search Committee shall consist of at least three members. One of the members shall be serving Principal Secretary i.e. not below the rank of Financial Commissioner and the third member can be serving or retired Bureaucrat not below the rank of Financial Commissioner, or member of the Armed Forces not below the rank of Brigadier or of equivalent rank. 7.3. The Search Committee shall consider all the names which came to its notice or are forwarded by any person or by any aspirant. The Search Committee shall prepare panel of suitable candidates equal to the three times the number of vacancies.
394 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 7.4. While preparation of the panel, it shall be specifically elicited about the pendency of any court litigation, civil or criminal, conviction or otherwise in a criminal court or civil court decree or any other proceedings that may have a bearing on the integrity and character of the candidates.
7.5. Such panel prepared by the Search Committee shall be considered by a High Powered Committee consisting of Hon'ble Chief Minister, Speaker of Assembly and Leader of Opposition. 7.6. It is thereafter, the recommendation shall be placed with all relevant materials with relative merits of the candidates for the approval of the Hon'ble Governor after completing the procedure before such approval.
7.7. The proceedings of the Search Committee shall be conducted keeping in view the principles laid down in Centre for Public Interest Litigation's case (supra).
8. By the order dated 17.08.2011, the Full Bench of the High Court also ordered that the writ petition be listed before the Division Bench to be constituted by the Chief Justice of the High Court.
9. Pursuant to the judgment dated 17.08.2011, the Division Bench constituted by the Chief Justice of the High Court quashed the appointment of Mr. Harish Dhanda as Chairman of the Punjab Public Service Commission and disposed of the writ petition of respondent No.1 in terms of the judgment of the Full Bench.
10. Aggrieved, the State of Punjab, State of Haryana and Mr. H.R. Dhanda have filed these appeals against the judgment and orders dated 17.08.2011 of the Full Bench and the Division Bench of the High Court.
Contentions of the learned counsel for the parties:
11. Mr. P.P. Rao, learned senior counsel for the State of Punjab, submitted that the writ petition before the High Court was a service matter and could not have been entertained by the High Court as a Public Interest Litigation at the instance of the writ petitioner. He cited the decisions of this Court in R.K. Jain v.
Union of India & Ors. [(1993) 4 SCC 119], Dr. Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors. [(1998) 7 SCC 273], Dattaraj Nathuji Thaware v. State of Maharashtra & Ors. [(2005) 1 SCC 590], Ashok Kumar Pandey v. State of West Bengal [(2004) 3 SCC 349], Hari Bansh Lal v. Sahodar Prasad 395 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Mahto & Ors. [(2010) 9 SCC 655] and Girjesh Mr.vastava & Ors. v. State of M.P. & Ors. [(2010) 10 SCC 707] for the proposition that a dispute relating to a service matter cannot be entertained as a Public Interest Litigation.
12. Mr. Rao next submitted that the Division Bench has recorded a clear finding in its order dated 13.07.2011 that the allegations regarding irregularities and illegalities against Mr. Harish Dhanda in the writ petition do not stand substantiated and there was, therefore, absolutely no need for the Division Bench of the High Court to make an academic reference to the Full Bench of the High Court. He next submitted that this Court in the case of Mehar Singh Saini Chairman, HPSC In Re (supra) had already declared the law that it is for the legislature to frame the guidelines or parameters regarding the experience, qualifications and stature for appointment as Chairman/Members of the Public Service Commission and this law declared by this Court was binding on all Courts in India and hence, there was no necessity whatsoever for the Division Bench to make a reference to a Full Bench on the very same questions of law.
13. Mr. Rao submitted that this Court has held in Kesho Nath Khurana v. Union of India & Ors. [(1981) Supp.1 SCC 38] that a Court to which a reference is made cannot adjudicate upon an issue which is not referred to it and yet the Full Bench of the High Court in this case has gone beyond the order of reference passed by the Division Bench and held that until a fair, rational, objective and transparent policy to meet the mandate of Article 14 of the Constitution is laid down, the procedure laid down by the Full Bench must be followed and has also declared the appointment of Mr. Harish Dhanda as Chairman of the Public Service Commission to be invalid. He also relied on the Punjab High Court Rules to argue that the Full Bench can be constituted only for answering the questions referred to it by the Division Bench of the High Court. He vehemently argued that these provisions of the Rules of the Punjab High Court have been violated and the judgment of the Full Bench of the High Court is clearly without jurisdiction. He next submitted that the direction given by the Full Bench in its order dated 01.08.2011 to produce the file containing the advice tendered by the Chief Minister to the Governor is clearly unconstitutional and ultra vires of Article 163(3) of the Constitution and relied on the decision of this Court in The State of Punjab v. Sodhi Sukhdev Singh [(1961) 2 SCR 371] on this point.
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14. Mr. Rao next submitted that Article 316 of the Constitution has left it to the discretion of the State Government to select and appoint the Chairman and Members of a Public Service Commission and having regard to the doctrine of separation of powers which is part of the basic structure of the Constitution, the High Court cannot direct the Government to exercise its discretion by following a procedure prescribed by the High Court. He cited Supreme Court Employees Welfare Association v. Union of India & Anr. [(1989) 4 SCC 187], Suresh Seth v. Commissioner of Indore Municipal Corporation [(2005) 13 SCC 287], Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr. [(2008) 1 SCC 683] and Asif Hameed & Ors. v. State of J & K & Ors. [(1989) 2 Supp. SCC 364] in support of the aforesaid submission. He submitted that the appointments to the constitutional offices, like the Attorney General, Advocate General, Comptroller & Auditor General, Chief Election Commissioner, Chairman and Members of the Union Public Service Commission and appointments to the topmost Executive posts, like the Chief Secretary or Director General of Police, has to be made within the discretion of the Government inasmuch as persons in whom the Government has confidence are appointed to the posts. He relied on E.P. Royappa v. State of Tamil Nadu & Anr. [(1974) 4 SCC 3] and State of West Bengal & Ors. v. Manas Kumar Chakraborty & Ors. [(2003) 2 SCC 604] for this proposition.
15. Mr. Rao argued that in the absence of clear violation of statutory provisions and regulations laying down the procedure for appointment, the High Court has no jurisdiction even to issue a writ of quo warranto. In support of this argument, he relied on the decision of this Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees Association & Ors. [(2006) 11 SCC 731]. He submitted that this a fit case in which the order of the Division Bench dated 13.07.2011 and the interim orders as well as the judgment of the Full Bench dated 17.08.2011 and the final order of the Division Bench dated 17.08.2011 of the High Court quashing the appointment of Mr. Harish Dhanda as well as consequential orders passed by the Government implementing the impugned judgment and order provisionally should be set aside by this Court.
16. Mr. U.U. Lalit, learned senior counsel appearing for the respondent No.1 who had filed the writ petition before the High Court, referred to the proclamation by the Queen in Council on 1st November, 1858 to the Princes, Chiefs and the People of India to show that in the civil and military services of the East 397 OA No. 170/00961/2019 & Ors/CAT/BANGALORE India Company persons with education, ability and integrity were to be recruited. He also referred to the report on the Public Service Commission, 1886-87 wherein the object of Public Service Commission was broadly stated to be to devise a scheme which may reasonably be hoped to possess the necessary elements of finality, and to do full justice to the claims of natives of India to higher and more extensive employment in the public service. He also referred to the report of the Royal Commission on the superior services in India dated 27.03.1924 and in particular Chapter IV thereof on "The Public Service Commission" in which it is stated that wherever democratic institutions exist, experience has shown that to secure an efficient civil service it is essential to protect it from political or personal influences and to give it that position of stability and security which is vital to its successful working as the impartial and efficient instrument by which Governments, of whatever political complexion, may give effect to their policies and for this reason Public Service Commission should be detached so far as practicable from all political associations. He also referred to the speeches of Dr. B.R. Ambedkar, Mr. Jaspat Roy Kapoor, Pandit Hirday Nath Kunzru and Mr. H.V. Kamath in the Constitutional Assembly and argued that to perform this difficult job of finding the best talent for the State Public Services without any political influence and other extraneous considerations the Public Service Commission must have a Chairman of great ability, independence and integrity.
17. Mr. Lalit further submitted that this Court has also in a number of pronouncements emphasized on the need to appoint eminent persons possessing a high degree of competence and integrity as Chairman and Members of the Public Service Commission so as to inspire confidence in the public mind about the objectivity and impartiality of the selection to be made by the Public Service Commission. In this context he referred to the judgments of this Court in Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. [(1985) 4 SCC 417], in R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission [(2000) 4 SCC 309], Inderpreet Singh Kahlon and Others v. State of Punjab and Others [(2006) 11 SCC 356] and Mehar Singh Saini, Chairman, Haryana Public Service Commission and others In Re (supra).
18. Mr. Lalit submitted that Mr. Harish Dhanda may be eligible for appointment as Chairman of the Public Service Commission but eligibility is not enough to be the Chairman of the State Public Service Commission. He submitted that the person who is 398 OA No. 170/00961/2019 & Ors/CAT/BANGALORE eligible must also have some positive qualities such as experience, ability, character and integrity for being appointed as the Chairman of the State Public Service Commission. He submitted that it is not only the personal integrity of the candidate who is to be appointed but also the integrity of the Pubic Service Commission as an institution which has to be borne in mind while making the appointment. He referred to the decisions of this Court in Centre for PIL and Another v. Union of India and Another [(2011) 4 SCC 1] in which a distinction has been made between personal integrity of a candidate appointed as the Central Vigilance Commissioner and the integrity of the Central Vigilance Commission as an institution and it has been held that while recommending a name of the candidate for appointment as Central Vigilance Commissioner, the question that one has to ask is whether the candidate recommended to function as the Central Vigilance Commissioner would be competent to function as a Central Vigilance Commissioner. He submitted that in the aforesaid case, this Court has also held that there was a difference between judicial review and merit review and has further held that the Courts, while exercising the power of judicial review, are not concerned with the final decision of the Government taken on merit but are entitled to consider the integrity of the decision-making process.
19. Mr. Lalit submitted that the writ petitioner challenged the decision-making process of the Government in selecting and appointing Mr. Harish Dhanda as Chairman of the Public Service Commission on the ground that it was not an informed process of decision-making in as much as the State Government has not collected information and materials on whether Mr. Dhanda had the experience, ability and character for being appointed as the Chairman of the Public Service Commission.
19.1 Mr Lalit submitted that as a matter of fact the State Government was also not even informed of the fact that the Central Administrative Tribunal, Chandigarh Bench, in its order dated 15.11.2007 in O.A. No.495/PB/2007 had adversely commented on the conduct of Mr. Harish Dhanda. He explained that in the aforesaid O.A., Mr. Amit Misra, who belonged to the Indian Forest Service and was posted as Divisional Forest Officer, Ropar in Punjab, had alleged that he had been transferred out of Ropar and posted as Division Forest Officer, Ferozpur, because of an incident which had occurred on 21.06.2007 on account of which he incurred the displeasure of Mr. Harish Dhanda, who was then the Chief Parliamentary Secretary, Department of Local Government, Punjab. He alleged 399 OA No. 170/00961/2019 & Ors/CAT/BANGALORE that Mr. Dhanda had been given the permission to stay at the Van Chetna Kendra/Forest Rest House at Pallanpur, District Ropar, for a few days, but later on he wanted to make the Forest Rest House as his permanent residence to which Mr. Amit Misra objected as the same was not permitted under the Rules and Mr. Amit Misra had directed the official incharge of the Rest House not to allow anybody to use the Rest House without getting permission and accordingly when Mr. Dhanda wanted the keys of the Rest House on 22.06.2007 he was not given the keys of the Rest House and Mr. Dhanda recorded a note addressed to the Principal Chief Conservator of Forests narrating the entire incident and ensured that Mr. Amit Misra was posted out of Ropar by an order of transfer dated 31.07.2007.
19.2 The Central Administrative Tribunal, Chandigarh Bench, called for the official noting which led to the passing of the transfer order dated 31.07.2007 and recorded the finding that even though the Government decided not to allow the use of the Rest House as a permanent residence of the Chief Parliamentary Secretary, yet Mr. Amit Misra, being a junior officer, became the victim of the annoyance of Mr. Harish Dhanda and with his political influence, the Forest Minister initiated the proposal for his transfer from Ropar, which was approved by the Chief Minister. Mr. Lalit submitted that this adverse finding of the Central Administrative Tribunal in a proceeding, in which Mr. Harish Dhanda was also a respondent, was not brought to the notice of the State Government when it took the decision to select and appoint Mr. Harish Dhanda as the Chairman of the Public Service Commission.
20. In reply to the submission of Mr. Rao that the Full Bench had no jurisdiction to expand the scope of the reference and should have limited itself to the questions referred to by the Division Bench by the order dated 13.07.2011, Mr. Lalit submitted that the order dated 13.07.2011 of the Division Bench of the High Court would show that the entire case was referred to the Full Bench and, therefore, the Full Bench passed the order dated 17.08.2011 on all relevant aspects of the case. He cited the decision of this Court in Kerala State Science & Technology Museum v. Rambal Co. & Ors. [2006) 6 SCC 258] to argue that a reference can also be made of the entire case to a larger Bench and in such a case, the larger Bench has to decide the entire case and its jurisdiction is not limited to specific issues. He also referred to the Rules of the Punjab High Court to show that the Full Bench of the High Court can also be constituted to decide the entire case in important matters.
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21. On the jurisdiction of the High Court to issue a writ for quashing the appointment of a Chairman of the Public Service Commission, Mr. Lalit cited the decision in Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur & Anr. [AIR 1966 SC 81] in which a three-Judge Bench of this Court has held that Article 226 of the Constitution is couched in comprehensive phraseology and it ex facie confers wide power on the High Court to reach injustice wherever it is found. He submitted that in this decision this Court has also explained that the High Court under Article 226 of the Constitution can issue writs in the nature of prerogative writs as understood in England and can also issue other directions, orders or writs. He vehemently submitted that the contention on behalf of the appellants that the High Court could not have issued a writ/order quashing the selection and appointment of Mr. Harish Dhanda is, therefore, not correct.
22. Mr. Lalit finally submitted that pursuant to the impugned orders of the Full Bench and the Division Bench of the High Court, the Search Committee was constituted by the Government for selection of the Chairman of the Punjab Public Service Commission and the Search Committee invited the names of eminent persons of impeccable integrity, caliber and administrative experience from all walks of life, to be considered for the post of the Chairman of Punjab Public Service Commission and thereafter the High Power Committee selected Lt. Gen. R.A. Sujlana (Retd.) who has been appointed by the State Government as the Chairman of the Punjab Public Service Commission in December, 2011 and he has been functioning as such since then. He submitted that the appointment of Lt. Gen. R.A. Sujlana is also not subject to orders passed by this Court and the news reports indicate that Lt. Gen. R.A. Sujlana has been an upright officer of the Indian Army and has wide administrative experience. He submitted that this is not a fit case in which this Court should interfere with the appointment of Lt. Gen. R.A. Sujlana as the Chairman of the Punjab Public Service Commission even if this Court finds infirmities in the impugned orders passed by the Full Bench and the Division Bench of the High Court.
23. Learned counsel for Mr. Harish Dhanda, adopted the arguments of Mr. P.P. Rao and also submitted that the order of the Central Administrative Tribunal in O.A. No.495/PB/2007 was filed before the Full Bench of the High Court on 01.08.2011 which was the last date of hearing. He submitted that Mr. Harish Dhanda, therefore, did not have any opportunity to reply before 401 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the Full Bench on the findings in the order of the Central Administrative Tribunal.
24. Mr. P.N. Misra, learned counsel appearing for the State of Haryana, adopted the arguments of Mr. P.P. Rao and further submitted that the Full Bench should not have added the State of Haryana as a party. He also submitted that the Full Bench should not have issued the directions in its order dated 17.08.2011 to the State of Haryana to adopt the same procedure for selection and appointment of the Chairman and Members of the Haryana Public Service Commission when the State of Haryana had nothing to do with the appointment of Mr. Harish Dhanda as Chairman of the Punjab Public Service Commission.
Findings of the Court:
25. The first question that I have to decide is whether the High Court was right in entertaining the writ petition as a public interest litigation at the instance of the respondent No.1.
26. I have perused the writ petition CWP No.11846 of 2011, which was filed before the High Court by the respondent No.1, and I find that in the first paragraph of the writ petition the respondent No.1 has stated that he was a public spirited person and that he had filed the writ petition for espousing the public interest and for the betterment of citizens of the State of Punjab. In the writ petition, the respondent No.1 has relied on the provisions of Articles 315, 316, 317, 318, 319 and 320 of the Constitution relating to Public Service Commissions to contend that the functions of the Public Service Commission are sensitive and important and it is very essential that a person, who is appointed as the Chairman of the Public Service Commission, must possess outstanding and high degree educational qualifications and a great amount of experience in the field of selection, administration and recruitment and he must also be a man of integrity and impartiality. The respondent No.1 has alleged in the writ petition that the State Government has not laid down any qualification for appointment to the post of Chairman of the Punjab Public Service Commission and is continuing to appoint persons to the post of Chairman of Public Service Commission on the basis of political affiliation.
27. In the writ petition, the respondent No.1 has also given the example of Mr. Ravi Pal Singh Sidhu, who was appointed as the Chairman, Punjab Public Service Commission on the basis of political affiliation and the result was that during his period as the 402 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Chairman of the Punjab Public Service Commission, several cases of undeserving candidates being selected and appointed to the Public Service Commission in the State of Punjab came to light and investigations were carried out leading to filing of various criminal cases against the officials of the Public Service Commission as well Mr. Sidhu.
28. Respondent No.1 has further stated in the writ petition that he has filed the writ petition after he read a news report titled: "MLA Dhanda to be new PPSC Chairperson". He has stated in the writ petition that Mr. Harish Dhanda was an Advocate at Ludhiana before he ventured into politics and had unsuccessfully contested the Vidhan Sabha election before he was elected as MLA on the Shiromani Akali Dal ticket and that he had close political affiliation and affinity with high ups of the ruling party and that the ruling party in the State of Punjab has cleared his name for appointment as the Chairman of the Punjab Public Service Commission shortly. The respondent No.1 has also alleged in the writ petition various irregularities and illegalities committed by Mr. Harish Dhanda. He has further stated in the writ petition that his colleague has even sent a representation to the Governor of Punjab and the Chief Minister of Punjab against the proposed appointment of Mr. Harish Dhanda. He has accordingly prayed in the writ petition for a mandamus to the State of Punjab to frame regulations governing the conditions of service and appointment of the Chairman and Members of the Punjab Public Service Commission and for an order restraining the State of Punjab from appointing Mr. Harish Dhanda as Chairman of the Punjab Public Service Commission.
29. On a reading of the entire writ petition filed by the Respondent No.1 before the High Court, I have no doubt that the respondent No.1 has filed this writ petition for espousing the cause of the general public of the State of Punjab with a view to ensure that a person appointed as the Chairman of the Punjab Public Service Commission is a man of ability and integrity so that recruitment to public services in the State of Punjab are from the best available talents and are fair and is not influenced by politics and extraneous considerations. Considering the averments in the writ petition, I cannot hold that the writ petition is just a service matter in which only the aggrieved party has the locus to initiate a legal action in the court of law. The writ petition is a matter affecting interest of the general pubic in the State of Punjab and any member of the public could espouse the cause of the general public so long as his bonafides are not in doubt. Therefore, I do not accept the submission of Mr. P.P. Rao, 403 OA No. 170/00961/2019 & Ors/CAT/BANGALORE learned senior counsel appearing for the State of Punjab, that the writ petition was a service matter and the High Court was not right in entertaining the writ petition as a Public Interest Litigation at the instance of the respondent No.1. The decisions cited by Mr. Rao were in cases where this Court found that the nature of the matter before the Court was essentially a service matter and this Court accordingly held that in such service matters, the aggrieved party and not any third party can only initiate a legal action.
30. The next question that I have to decide is whether the Division Bench of the High Court, after having recorded a finding in its order dated 13.07.2011 that the allegations of irregularities and illegalities against Mr. Harish Dhanda in the writ petition do not stand substantiated, should have made an academic reference to the Full Bench of the High Court.
31. As I have noticed, the respondent No.1 had, in the writ petition, relied on the constitutional provisions in Articles 315, 316, 317, 318, 319 and 320 of the Constitution to plead that the functions of the Public Service Commissions were of a sensitive and critical nature and hence the Chairman of the Public Service Commission must possess outstanding and high educational qualifications and a great amount of experience in the field of selection, administration and recruitment. The respondent No.1 has further pleaded in the writ petition that the State Government had on an earlier occasion made an appointment of a Chairman of the Punjab Public Service Commission on the basis of political affiliation and this has resulted in selection and appointment of undeserving persons to public service for extraneous considerations. Though respondent No.1 had alleged in the writ petition some irregularities and illegalities on the part of Mr. Harish Dhanda, who was proposed to be appointed as Chairman of the Public Service Commission by the State Government, the writ petition was not founded only on such irregularities and illegalities alleged against Mr. Harish Dhanda. In addition, the respondent No.1 had also alleged in the writ petition that Mr. Harish Dhanda was politically affiliated to the ruling party and was not selected for appointment as Chairman of the Public Service Commission on the basis of his qualifications, experience or ability which are necessary for the post of the Chairman of the Public Service Commission. Thus, even if the Division Bench had recorded a finding in the order dated 13.07.2011 that the irregularities and illegalities pointed out in the writ petition against Mr. Harish Dhanda do not stand substantiated, the writ petition could not be disposed of with the said finding only.
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32. The Division Bench of the High Court, therefore, thought it necessary to make a reference to the Full Bench and has given its reasons for the reference to the Full Bench in Paragraphs 6 and 7 of its order dated 13.07.2011, which are quoted herein below:
"6. Even though, Article 316 of the Constitution does not prescribe any particular procedure, having regard to the purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. It is undisputed that person to be appointed must have competence and integrity. Reference may be made to judgments of the Hon'ble Supreme Court in In R/o Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission (2000) 4 SCC 309, Ram Kumar Kashyap and another v. Union of India and another, AIR 2010 SC 1151 and in re v. Mehar Singh Saini, Chairman, HPSC and others (2010) 13 SCC 586 : (2010) 6 SLR 717.
7. If it is so, question is how such persons are to be identified and selected and whether in the present case, procedure adopted is valid and if not, effect thereof. We are of the view that these questions need to be considered by a Bench of three Hon'ble Judges. Accordingly, we refer the matter to a Bench of three Hon'ble Judges."
It will be clear from the Paragraphs 6 and 7 of the order dated 13.07.2011 quoted above that the Division Bench of the High Court found that Article 316 of the Constitution, which provides for appointment of the Chairman and other Members of the Public Service Commission by the Governor, does not prescribe any particular procedure and took the view that, having regard to the purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. The Division Bench of the High Court was of the further view that the persons to be appointed must have competence and integrity, but how such persons are to be identified and selected must be considered by a Bench of three Judges and accordingly referred the matter to the three Judges. The Division Bench also referred the question to the larger Bench of three Judges as to whether the procedure adopted in the present case for appointing Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission was valid and if not, what is the effect of not following the procedure. I do not, therefore, find any merit in the submission of Mr. Rao that the Division Bench of the High Court having found in its order dated 405 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 13.07.2011 that the irregularities and illegalities pointed out in the writ petition against Mr. Harish Dhanda are unsubstantiated, should not have made an academic reference to the larger Bench of the High Court.
33. I may now consider the submission of Mr. Rao that this Court in the case of Mehar Singh Saini, Chairman, HPSC In Re (supra) had already declared the law that it is for Parliament to frame the guidelines or parameters regarding the qualifications, experience or stature for appointment as Chairman/Members of the Public Service Commission and hence it was not necessary for the Division Bench to make a reference to a Full Bench on the very same question of law.
34. In Mehar Singh Saini Chairman, HPSC In Re (supra), this Court noticed that the provisions of Article 316 of the Constitution do not lay down any qualification, educational or otherwise, for appointment to the Commission as Chairman and Members and made the following observations in Para 85 of the judgment as reported in the SCC:
"Desirability, if any, of providing specific qualification or experience for appointment as Chairman/members of the Commission is a function of Parliament. The guidelines or parameters, if any, including that of stature, if required to be specified, are for the appropriate Government to frame. This requires expertise in the field, data study and adoption of the best methodology by the Government concerned to make appointments to the Commission on merit, ability and integrity. Neither is such expertise available with the Court nor will it be in consonance with the constitutional scheme that this Court should venture into reading such qualifications into Article 316 or provide any specific guidelines controlling the academic qualification, experience and stature of an individual who is proposed to be appointed to this coveted office. Of course, while declining to enter into such arena, we still feel constrained to observe that this is a matter which needs the attention of the Parliamentarians and quarters concerned in the Governments. One of the factors, which has persuaded us to make this observation, is the number of cases which have been referred to this Court by the President of India in terms of Article 317(1) of the Constitution in recent years. A large number of inquiries are pending before this Court which itself reflects that all is not well with the functioning of the Commissions."
406 OA No. 170/00961/2019 & Ors/CAT/BANGALORE The observations of this Court in the aforesaid case of Mehar Singh Saini Chairman, HPSC In Re (supra) relate to qualification and experience for appointment as Chairman/Members of the Commission and have nothing to do with the questions relating to the procedure for identifying persons of integrity and competence to be appointed as Chairman of the Public Service Commission, which were referred by the Division Bench of the High Court to the Full Bench by the order dated 13.07.2011. Mr. Rao is, therefore, not right in his submission that in view of the law declared by this Court in Mehar Singh Saini, Chairman, HPSC In Re (supra), there was no necessity for the Division Bench to make a reference to the Full Bench by the order dated 13.07.2011.
35. I may next deal with the contention of Mr. Rao that the Full Bench exceeded its jurisdiction by enlarging the scope of reference and deciding matters which were not referred to it by the order dated 13.07.2011 of the Division Bench. Rule 4 of the Punjab High Court Rules reads as follows:
"All cases shall be heard and disposed of by a Bench of two Judges save as provided by law or by these Rules - Save as provided by law or by these rules or by special order of the Chief Justice, all cases shall be heard and disposed of by a Bench of two Judges."
36. I have perused Rules 6, 7, 8 and 9 of the Punjab High Court Rules which relate to Full Bench and I do not find therein any provision which provides what matters a Full Bench comprising three Judges of the High Court will decide. Hence, the Division Bench of the High Court has the jurisdiction to decide a case, unless otherwise provided by law or by a special order of the Chief Justice and the jurisdiction of a Full Bench to decide matters will flow either from the order of the Chief Justice of the High Court or from the order of the Division Bench which makes a reference to the Full Bench. In the present case, there is no order of the Chief Justice making a reference but only the order dated 13.07.2011 of the Division Bench of the High Court making a reference to the Full Bench of three Judges of the High Court. Thus, I have to look at the order dated 13.07.2011 of the Division Bench to find out whether the Division Bench referred only specific questions to the Full Bench as contended by Mr. Rao or referred the entire case to the Full Bench as contended by Mr. Lalit.
407 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
37. On a close scrutiny of Paragraphs 6 and 7 of the order dated 13.07.2011 of the Division Bench of the High Court which are extracted above, I find that the Division Bench of the High Court has referred only specific questions to the Full Bench: how persons of competence and integrity are to be identified and selected for appointment as Chairman of the Public Service Commission and if the procedure adopted for such appointment in the present case was not valid, the effect thereof. The Division Bench of the High Court has made it clear in Para 7 of its order dated 13.07.2001 that "these questions need to be considered by a Bench of three Hon'ble Judges". I, therefore, do not agree with Mr. Lalit that the Division Bench referred the entire case to the Full Bench by the order dated 13.07.2011. I further find that although the aforesaid specific questions relating to the procedure for identifying persons of competence and integrity for appointment as the Chairman of the Public Service Commission only were referred by the Division Bench of the High Court, the Full Bench, instead of deciding these specific questions referred to it, has given directions to the State of Punjab and the State of Haryana to follow a particular procedure for appointment of Members and Chairman of the Public Service Commission till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 of the Constitution is made. I, therefore, agree with Mr. Rao that the Full Bench of the High Court has decided issues which were not referred to it by the Division Bench of the High Court and the judgment dated 17.08.2011 of the Full Bench of the High Court was without jurisdiction.
38. I may next consider the contention of Mr. Rao that as the Constitution has left it to the discretion of the State Government to select and appoint the Chairman and Members of a State Public Commission, the High Court cannot direct the Government to exercise its discretion by following a procedure prescribed by the High Court. Mr. Rao has relied on Article 316 of the Constitution and the decision of this Court in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. [(1978) 1 SCC 405].
39. Article 316 of the Constitution of India is quoted hereinbelow:
"316. Appointment and term of office of members.-
(1) The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and 408 OA No. 170/00961/2019 & Ors/CAT/BANGALORE in the case of a State Commission, by the Governor of the State:
Provided that as nearly as may be one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State, and in computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State shall be included. (1A) If the office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some persons appointed under clause (1) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission, and the Governor of the State in the case of a State in the case of a State Commission, may appoint for the purpose.
(2) A member of a Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of sixty-five years, and in the case of a State Commission or a Joint Commission, the age of sixty-two years, whichever is earlier:
Provided that -
(a) a member of a Public Service Commission may, by writing under his hand addressed, in the case of the Union Commission or a Joint Commission, to the President, and in the case of a State Commission, to the Governor of the State, resign his office;
(b) a member of a Public Service Commission may be removed from his office in the manner provided in clause (1) or clause (3) of Article 317.
(3) A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that office."
409 OA No. 170/00961/2019 & Ors/CAT/BANGALORE A reading of Article 316 of the Constitution would show that it confers power on the Governor of the State to appoint the Chairman and other Members of a Public Service Commission. It has been held by this Court in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. (supra) that an authority has implied powers to make available and carry into effect powers expressly conferred on it. Thus, under Article 316 of the Constitution, the Governor of a State has not only the express power of appointing the Chairman and other Members of Public Service Commission but also the implied powers to lay down the procedure for appointment of Chairman and Members of the Public Service Commission and the High Court cannot under Article 226 of the Constitution usurp this constitutional power of the Government and lay down the procedure for appointment of the Chairman and other Members of the Public Service Commission. The Full Bench of the High Court, therefore, could not have laid down the procedure for appointment of the Chairman and Members of the Punjab Public Service Commission and the Haryana Public Service Commission by the impugned judgment dated 17.08.2011.
40. Having held that the Full Bench of the High Court has in its judgment dated 17.08.2011 acted beyond its jurisdiction and has usurped the constitutional power of the Governor in laying down the procedure for appointment of the Chairman and Members of the Public Service Commission, I have to set aside the judgment dated 17.08.2011 of the Full Bench of the High Court. Thereafter, either of the two courses are open to me: remand the matter to the High Court for disposal of the writ petition in accordance with law or decide the writ petition on merits. To cut short the litigation, I proceed to decide the writ petition on merits instead of remanding the matter to the High Court.
41. This Court has had the occasion to consider the qualities which a person should have for being appointed as Chairman and Member of Public Service Commission and has made observations after considering the nature of the functions entrusted to the Public Service Commissions under Article 320 of the Constitution. In Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. (supra), a Constitution Bench of this Court speaking through P.N. Bhagwati, J, observed:
"We would therefore like to strongly impress upon every State Government to take care to see that its Public Service Commission is manned by competent, honest and independent persons of outstanding ability and high 410 OA No. 170/00961/2019 & Ors/CAT/BANGALORE reputation who command the confidence of the people and who would not allow themselves to be deflected by any extraneous considerations from discharging their duty of making selections strictly on merit."
42. In Ram Ashray Yadav, Chairman, Bihar Public Service Commission (supra), Dr. A.S. Anand, C.J. speaking for a three Judge Bench, cautioned:
"The credibility of the institution of a Public Service Commission is founded upon the faith of the common man in its proper functioning. The faith would be eroded and confidence destroyed if it appears that the Chairman or the members of the Commission act subjectively and not objectively or that their actions are suspect. Society expects honesty, integrity and complete objectivity from the Chairman and members of the Commission. The Commission must act fairly, without any pressure or influence from any quarter, unbiased and impartially, so that he society does not lose confidence in the Commission. The high constitutional trustees, like the Chairman and members of the Public Service Commission must forever remain vigilant and conscious of these necessary adjuncts."
43. Despite these observations of this Court, the State Government of Punjab appointed Mr. Ravi Pal Singh Sidhu as the Chairman of the Punjab Public Service Commission between 1996 to 2002 and as has been noted in the judgment of S.B. Sinha, J. of this Court in Inderpreet Singh Kahlon and Others v. State of Punjab and Others (supra), allegations were made against him that he got a large number of persons appointed on extraneous considerations including monetary consideration during the period 1998 to 2001 and raids were conducted in his house on more that one occasion and a large sum of money was recovered from his custody and his relatives and FIRs were lodged and criminal cases initiated by the Vigilance Bureau of the State of Punjab. Writing a separate judgment in the aforesaid case, Dalveer Bhandari, J, had to comment:
"This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be 411 OA No. 170/00961/2019 & Ors/CAT/BANGALORE maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit rectitude and honesty are appointed to these constitutional positions."
44. Considering this experience of the damage to recruitment to public services caused by appointing a person lacking in character as the Chairman of the Public Service Commission in the State of Punjab, when the respondent No.1 brought to the notice of the High Court through the writ petition that the State Government of Punjab proposed to appoint Mr. Harish Dhanda as the Chairman of the Public Service Commission, only because of his political affiliation, the Division Bench of the High Court rightly entertained the writ petition as a public interest litigation. The Division Bench of the High Court, however, found that no procedure for appointment of Chairman and Members of the Public Service Commission has been laid down in Article 316 of the Constitution and therefore posed the question in Paragraphs 6 and 7 of its order dated 13.07.2011 as to what should be the procedure for identifying and selecting persons of integrity and competence for appointment of Chairman of the Public Service Commission and referred the question to a larger Bench of three Judges.
45. I have already held that it is for the Governor who is the appointing authority under Article 316 of the Constitution to lay down the procedure for appointment of the Chairman and Members of the Public Service Commission, but this is not to say that in the absence of any procedure laid down by the Governor for appointment of Chairman and Members of the Public Service Commission under Article 316 of the Constitution, the State Government would have absolute discretion in selecting and appointing any person as the Chairman of the State Public Service Commission. Even where a procedure has not been laid down by the Governor for appointment of Chairman and Members of the Public Service Commission, the State Government has to select only persons with integrity and competence for appointment as Chairman of the Public Service Commission, because the discretion vested in the State Government under Article 316 of the Constitution is impliedly limited by the purposes for which the discretion is vested and the purposes are discernible from the functions of the Public Service Commissions enumerated in Article 320 of the Constitution. Under clause (1) of Article 320 of the Constitution, the State 412 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Public Service Commission has the duty to conduct examinations for appointments to the services of the State. Under clause (3) of Article 320, the State Public Service Commission has to be consulted by the State Government on matters relating to recruitment and appointment to the civil services and civil posts in the State, on disciplinary matters affecting a person serving under the Government of a State in a civil capacity, on claims by and in respect of a person who is serving under the State Government towards costs of defending a legal proceeding, on claims for award of pension in respect of injuries sustained by a person while serving under the State Government and other matters. In such matters, the State Public Service Commission is expected to act with independence from the State Government and with fairness, besides competence and maturity acquired through knowledge and experience of public administration.
46. I, therefore, hold that even though Article 316 does not specify the aforesaid qualities of the Chairman of a Public Service Commission, these qualities are amongst the implied relevant factors which have to be taken into consideration by the Government while determining the competency of the person to be selected and appointed as Chairman of the Public Service Commission under Article 316 of the Constitution. Accordingly, if these relevant factors are not taken into consideration by the State Government while selecting and appointing the Chairman of the Public Service Commission, the Court can hold the selection and appointment as not in accordance with the Constitution. To quote De Smith's Judicial Review, Sixth Edition:
"If the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account (expressly or impliedly), a court will normally hold that the power has not been validly exercised. (Page 280) If the relevant factors are not specified (e.g. if the power is merely to grant or refuse a licence, or to attach such conditions as the competent authority thinks fit), it is for the courts to determine whether the permissible considerations are impliedly restricted, and, if so, to what extent (Page
282)"
In M/s Hochtief Gammon v. State of Orissa and Others (AIR 1975 SC 2226), A. 413 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Alagiriswamy writing the judgment for a three Judge Bench of this Court explained this limitation on the power of the Executive in the following words:
"The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the Executive acts lawfully".
47. Mr. Rao, however, relied on a decision of the Constitution Bench of this Court in E.P. Royappa v. State of Tamil Nadu & Anr. (supra) in which it was held that the post of Chief Secretary is a highly sensitive post and the Chief Secretary is a lynchpin in the administration and for smooth functioning of the administration, there should be complete rapport and understanding between the Chief Secretary and the Chief Minister and, therefore, it is only the person in whom the Chief Minister has complete confidence who can be appointed as Chief Secretary of the State and hence the Chief Secretary of a State cannot be displaced from his post on the ground that his appointment was arbitrary and violative of Articles 14 and 16 of the Constitution.
48. Mr. Rao also relied on the decision of a two-Judge Bench of this Court in State of West Bengal & Ors. v. Manas Kumar Chakraborty & Ors. (supra) in which it was similarly observed that the post of DG and IG Police was a selection post and it is not open to the courts to sit in appeal over the view taken by the appointing authority with regard to the choice of the officer to be appointed as DG and IG Police and for such selection, the Government of the State must play a predominant role. I am of the considered opinion that the Chairman of the Public Service Commission, who along with its other members has to perform his duties under Article 320 of the Constitution with independence from the State Government cannot be equated with the Chief Secretary or the DG and IG Police, who are concerned solely with the administrative functions and have to work under the State Government. To ensure this independence of the Chairman and Members of the Public Service Commission, clause (3) of Article 316 of the Constitution provides that a person shall, on expiration of his term of office be ineligible for reappointment to that office.
414 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
49. Mr. Rao has also relied on the decision of this Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees Association & Ors. (supra) to argue that the High Court's jurisdiction to issue a writ of quo warranto is limited to only cases where the appointment to an office is contrary to the statutory rules. He also distinguished the decision of this Court in Centre for PIL and Another v. Union of India and Another (supra) cited by Mr. Lalit and submitted that in that case the Court had found that the appointment of the Central Vigilance Commissioner was in contravention of the statutory provisions of the Central Vigilance Commission Act, 2003 and for this reason, this Court quashed the appointment of the Central Vigilance Commissioner.
50. I have already held that besides express restrictions in a statute or the Constitution, there can be implied restrictions in a statute and the Constitution and the statutory or the constitutional authority cannot in breach of such implied restrictions exercise its discretionary power. Moreover, Article 226 of the Constitution vests in the High Court the power to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The power of the High Court under Article 226 of the Constitution is, thus, not confined to only writ of quo warranto but to other directions, orders or writs.
51. In Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur & Anr. (supra), K. Subba Rao, J. speaking for a three- Judge Bench, has explained the wide scope of the powers of the High Court under Article 226 of the Constitution thus:
"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or 415 OA No. 170/00961/2019 & Ors/CAT/BANGALORE writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in T.C. Basappa v. Nagappa, 1955-1 SCR 250: (AIR 1954 SC 440) and Irani v. State of Madras, 1962 (2) SCR 169: (AIR 1961 SC 1731)."
52. Therefore, I hold that the High Court should not normally, in exercise of its power under Article 226 of the Constitution, interfere with the discretion of the State Government in selecting and appointing the Chairman of the State Public Service Commission, but in an exceptional case if it is shown that relevant factors implied from the very nature of the duties entrusted to Public Service Commissions under Article 320 of the Constitution have not been considered by the State Government in selecting and appointing the Chairman of the State Public Service Commission, the High Court can invoke its wide and extra-ordinary powers under Article 226 of the Constitution and quash the selection and appointment to ensure that the discretion of the State Government is exercised within the bounds of the Constitution.
53. Coming now to the facts of the present case, I find that the Division Bench of the High Court in its order dated 13.07.2011 has already held that the irregularities and illegalities alleged against Mr. Harish Dhanda have not been substantiated. I must, however, enquire whether the State Government took into consideration the relevant factors relating to his competency to act as the Chairman of the State Public Service Commission. We had, therefore, passed orders on 01.08.2012 calling upon the State of Punjab to produce before us the material referred to in para 69 of the judgment of the Full Bench of the High Court on the basis of which Mr. Harish Dhanda was selected for appointment as Chairman of the Punjab Public Service 416 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Commission. Pursuant to the order dated 01.08.2012, the State Government has produced the files in which the selection and appointment of Mr. Harish Dhanda was processed by the State Government. At page 26 of the file on the subject "Appointment of Chairman of P.P.S.C. - Mr. S.K. Sinha, IAS, Mr. Harish Rai Dhanda", I find that a bio-data in one sheet has been placed at page 41 of the file, which reads as under:
"BIO DATA Harish Rai Dhanda S/o Sh. Kulbhushan Rai Resident: The Retreat, Ferozepur Road, Ludhiana Date of Birth: 15th May, 1960 Attained Bachelor in Arts from SCD Government College, Ludhiana, Punjab University, (1979). Attained Bachelor in Laws from Law College, Punjab University (1982).
Registered with Bar Council of Punjab and Haryana as Advocate in 1982.
Practiced Law at District Courts, Ludhiana from 1982 to 2007.
Elected as President of District Bar Association, Ludhiana for seven terms."
54. Besides the aforesaid bio-data, there is a certificate dated 06.07.2011 given by the Speaker, Punjab Vidhan Sabha, certifying that Mr. Harish Rai Dhanda, MLA, has resigned from the membership of the 13th Punjab Legislative Assembly with effect from 06.07.2011 and that his resignation has been accepted by the Speaker. The aforesaid materials indicate that Mr. Harish Dhanda had B.A. and LL.B Degrees and was practicing as an Advocate at the District Courts in Ludhiana and had been elected as the President of the District Bar Association, Ludhiana for seven terms and has been member of the Legislative Assembly. These materials do not indicate that Mr. Harish Dhanda had any knowledge or experience whatsoever either in administration or in recruitment nor do these materials indicate that Mr. Harish Dhanda had the qualities to perform the duties as the Chairman of the State Public Service Commission under Article 320 of the Constitution which I have discussed in this judgment. No other information through affidavit has also been placed on record before us to show that Mr. Harish Dhanda 417 OA No. 170/00961/2019 & Ors/CAT/BANGALORE has the positive qualities to perform the duties of the office of the Chairman of the State Pubic Service Commission under Article 320 of the Constitution. The decision of the State Government to appoint Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission was thus invalid for non-consideration of relevant factors implied from the very nature of the duties entrusted to the Public Service Commissions under Article 320 of the Constitution.
55. In the result, I am not inclined to interfere with the impugned order of the Division Bench of the High Court dated 17.08.2011 quashing the selection and appointment of Mr. Harish Dhanda as Chairman of the Punjab Public Service Commission, but I set aside the judgment dated 17.08.2011 of the Full Bench of the High Court. Considering, however, the fact that the State Government of Punjab has already selected and appointed Lt. Gen. R.A. Sujlana as the Chairman of the Punjab Public Service Commission, I am not inclined to disturb his appointment only on the ground that his appointment was consequential to the judgment dated 17.08.2011 of the Full Bench of the High Court which I have set aside. The appeal of the State of Punjab is partly allowed and the appeal of the State of Haryana is allowed, but the appeal of Mr. Harish Dhanda is dismissed. The parties to bear their own costs.
MADAN B. LOKUR, J. (concurring) - While I entirely agree with Brother Patnaik, but given the seminal importance of the issues raised, I think it appropriate to separately express my views in the case.
57. The facts have been stated in detail by Brother Patnaik and it is not necessary to repeat them.
The issues:
58. The primary substantive issue that arises for consideration is whether the High Court could have - and if it could have, whether it ought to have - interfered in the appointment, by a notification published on 7th July 2011, of Mr. Harish Rai Dhanda as Chairperson of the Punjab Public Service Commission. In my opinion, the answer to both questions must be in the affirmative.
59. However, it must be clarified that even though a notification was issued of his appointment, Mr. Dhanda did not actually assume office or occupy the post of Chairperson of the Punjab Public Service Commission. Before he could do so, his 418 OA No. 170/00961/2019 & Ors/CAT/BANGALORE appointment was challenged by Salil Sabhlok through a writ petition being Writ Petition (Civil) No.11848 of 2011 filed in the Punjab & Haryana High Court. When the writ petition was taken up for consideration, a Division Bench of the High Court observed in its order of 13th July 2011 that his "oath ceremony"
was fixed for the same day but learned counsel appearing for the State of Punjab stated that the ceremony would be deferred till the writ petition is decided. Thereafter, the statement was sought to be withdrawn on 1st August 2011. However, the Full Bench of the High Court, which had heard the matter in considerable detail, passed an order on that day retraining administering of the oath of office to Mr. Dhanda. As such, Mr. Dhanda did not take the oath of allegiance, of office and of secrecy as the Chairperson of the Punjab Public Service Commission. Later, since his appointment was quashed by the High Court, the question of his taking the oaths as above did not arise.
60. Another substantive issue raised is whether the High Court could have entertained a Public Interest Writ Petition in respect of a "service matter", namely, the appointment of Mr. Harish Rai Dhanda as Chairperson of the Punjab Public Service Commission. In my opinion, the appointment of the Chairperson of the Punjab Public Service Commission is not a "service matter" and so a Public Interest Litigation could have been entertained by the High Court.
61. A few procedural issues have also arisen for consideration and they relate to the desirability of making a reference by the Division Bench to the Full Bench of the High Court of issues said to have been settled by this Court; the framing of questions by the Full Bench of the High Court, over and above the questions referred to it; the necessity of impleadment of the State of Haryana in the proceedings before the Full Bench, even though it had no concern with the appointment of the Chairperson of the Punjab Public Service Commission; the validity of the direction given by the Full Bench to produce the advice tendered by the Chief Minister of the State of Punjab to the Governor of the State in respect of the appointment of the Chairperson of the Punjab Public Service Commission; the power of the Full Bench to frame guidelines for the appointment of the Chairperson of the Punjab Public Service Commission and of the Haryana Public Service Commission and a few other incidental issues.
Public Interest Writ Petition in respect of a "service matter":
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62. At the outset, it is important to appreciate that the Chairperson of a Public Service Commission holds a constitutional position and not a statutory post. The significance of this is that the eligibility parameters or selection indicators for appointment to a statutory post are quite different and distinct from the parameters and indicators for appointment to a constitutional position.
63. The appointment of a Chairperson of a State Public Service Commission is in terms of Article 316 of the Constitution, which reads as follows:
"316. Appointment and term of office of members.--(1) The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor of the State:
Provided that as nearly as may be one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State, and in computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State shall be included. (1-A) If the office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some person appointed under clause (1) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission, and the Governor of the State in the case of a State Commission, may appoint for the purpose. (2) A member of a Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of sixty-five years, and in the case of a State Commission or a Joint Commission, the age of sixty-two years, whichever is earlier:
420 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Provided that--
(a) a member of a Public Service Commission may, by writing under his hand addressed, in the case of the Union Commission or a Joint Commission, to the President, and in the case of a State Commission, to the Governor of the State, resign his office;
(b) a member of a Public Service Commission may be removed from his office in the manner provided in clause (1) or clause (3) of Article 317.
(3) A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that office."
64. Two features clearly stand out from a bare reading of Article 316 of the Constitution, and these are: (1) No qualification has been laid down for the appointment of the Chairperson of a State Public Service Commission. Theoretically therefore, the Chief Minister of a State can recommend to the Governor of a State to appoint any person walking on the street as the Chairperson of the State Public Service Commission. (2) The Chairperson of the State Public Service Commission is provided security of tenure since the term of office is fixed at six years or until the age of 62 years, whichever is earlier.
65. The security of tenure is confirmed by the provision for removal of the Chairperson of the State Public Service Commission from office as provided for in Article 317 of the Constitution. This reads as follows:
"317. Removal and suspension of a member of a Public Service Commission.--(1) Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under Article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed. (2) The President, in the case of the Union Commission or a Joint Commission, and the Governor, in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court 421 OA No. 170/00961/2019 & Ors/CAT/BANGALORE under clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.
(3) Notwithstanding anything in clause (1), the President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be,--
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment outside the duties of his office; or
(c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body. (4) If the Chairman or any other member of a Public Service Commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government of a State or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of clause (1), be deemed to be guilty of misbehaviour."
66. An aspect that clearly stands out from a reading of Article 317 is that the Chairperson of the State Public Service Commission can be removed from office on the ground of misbehaviour only after an inquiry is held by this Court on a reference made by the President and that inquiry results in a report that he or she ought to be removed on such ground. The Governor of the State is not empowered to remove the Chairperson of the State Public Service Commission even though he or she is the appointing authority. There are, of course, other grounds mentioned in Article 317 of the Constitution but none of them are of any concern for the purposes of this case.
67. A reading of Article 316 and Article 317 of the Constitution makes it clear that to prevent the person walking on the street from being appointed as the Chairperson of a State Public Service Commission, the Constitution has provided that the appointment is required to be made by the Governor of the State, on advice. Additionally, the Chairperson has security of tenure to the extent that that person cannot be effortlessly removed from office even by the President as long as he or she is not guilty of 422 OA No. 170/00961/2019 & Ors/CAT/BANGALORE proven misbehaviour, or is insolvent, or does not take up any employment or is not bodily or mentally infirm. There is, therefore, an in- built constitutional check on the arbitrary appointment of a Chairperson of a State Public Service Commission. The flip side is that if an arbitrary appointment is made, removal of the appointee is a difficult process.
68. If the person walking on the street is appointed in a God- forbid kind of situation, as the Chairperson of a State Public Service Commission, what remedy does an aggrieved citizen have? This question arises in a unique backdrop, in as much as no eligibility criterion has been prescribed for such an appointment and the suitability of a person to hold a post is subjective.
69. In this context, three submissions have been put forward by learned counsel supporting the appointment of Mr. Dhanda. If these submissions are accepted, then one would have to believe that a citizen aggrieved by such an appointment would have no remedy. The first submission is that a writ of quo warranto would not lie since there is no violation of a statute in the appointment - indeed, no statutory or other qualification or eligibility criterion has been laid down for the appointment. Therefore, a petition for a writ of quo warranto would not be maintainable. The second submission is that the appointment to a post is a "service matter". Therefore, a public interest litigation (or a PIL for short) would not be maintainable. The third submission is that the remedy in a "service matter" would lie with the Administrative Tribunal, but an application before the Tribunal would not be maintainable since the aggrieved citizen is not a candidate for the post and, therefore, would have no locus standii in the matter. It is necessary to consider the correctness of these submissions and the availability of a remedy, if any, to an aggrieved citizen.
Maintainability of a PIL:
i) A writ of quo warranto
70. Learned counsel supporting Mr. Dhanda are right that there is no violation of any statutory requirement in the appointment of Mr. Dhanda. This is because no statutory criterion or parameters have been laid for the appointment of the Chairperson of a Public Service Commission. Therefore, a petition for a writ of quo warranto would clearly not lie.
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71. A couple of years ago, in Hari Bansh Lal v. Sahodar Prasad Mahto, (2010) 9 SCC 655 this Court considered the position at law and, after referring to several earlier decisions, including R.K. Jain v. Union of India, (1993) 4 SCC 119, Mor Modern Coop. Transport Society v. Govt. of Haryana, (2002) 6 SCC 269, High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 and B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association, (2006) 11 SCC 731 (2) held that "even for issuance of a writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules."
72. This principle was framed positively in Mahesh Chandra Gupta v. Union of India & Others, (2009) 8 SCC 273 wherein it was said:
"In cases involving lack of "eligibility" writ of quo warranto would certainly lie."
ii) Is it a service matter?
73. Is the appointment of a person to a constitutional post a "service matter"? The expression "service matter" is generic in nature and has been specifically defined (as far as I am aware) only in the Administrative Tribunals Act, 1985. Section 3(q) of the Administrative Tribunals Act is relevant in this regard and it reads as follows:
"3. Definitions.--In this Act, unless the context otherwise requires,--
(q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respects--
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
424 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
(iv) disciplinary matters; or
(v) any other matter whatsoever;"
74. It cannot be said that the Chairperson of the Public Service Commission holds a post in connection with the affairs of the Union or the State. He or she is not a Government servant, in the sense of there being a master and servant relationship between the Union or the State and the Chairperson. In view of the constitutional provisions pertaining to the security of tenure and the removal procedure of the Chairperson and members of the Public Service Commission, it can only be concluded that he or she holds a constitutional post. In this context, in Reference under Article 317(1) of the Constitution of India, In re, (1990) 4 SCC 262 it was held:
"The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a Member of the Commission is different. The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution."
75. Similarly, in Bihar Public Service Commission v. Shiv Jatan Thakur, 1994 Supp. (3) SCC 220 the Public Service Commission is referred to as a "constitutional institution" and its Chairperson and members as "constitutional functionaries".
76. In Ram Ashray Yadav (Dr.), Chairman, Bihar Public Service Commission, In Re, (2000) 4 SCC 309 a reference was made to the "constitutional duties and obligations" of the Public Service Commissions. It was also observed that the Chairperson of the Public Service Commission is in the position of a constitutional trustee.
77. In Ram Kumar Kashyap v. Union of India, (2009) 9 SCC 278 the obligations of the Public Service Commission were referred to as "constitutional obligations" and on a review of the case law, it was held that:
"... since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions."
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78. Finally, in Mehar Singh Saini, Chairman, Haryana Public Service Commission, In re, (2010) 13 SCC 586 a distinction was made between service under the Government of India or a State Government and a constitutional body like a Public Service Commission. It was observed that, "A clear distinction has been drawn by the Framers [of our Constitution] between service under the Centre or the States and services in the institutions which are creations of the Constitution itself. Article 315 of the Constitution commands that there shall be a Union Public Service Commission for the Centre and State Public Service Commissions for the respective States. This is not, in any manner, linked with the All-India Services contemplated under Article 312 of the Constitution to which, in fact, the selections are to be made by the Commission. The fact that the Constitution itself has not introduced any element of interdependence between the two, undoubtedly, points to the cause of Commission being free from any influence or limitation."
A little later in the judgment, the Public Service Commission is described as a "constitutional body".
79. This being the position, it is not possible to say that the Chairperson of the Public Service Commission does not occupy a constitutional position or a constitutional post. To describe the appointment to a constitutional post generically or even specifically as a "service matter" would be most inappropriate, to say the least.
iii) Functional test
80. The employment embargo laid down in the Constitution and the functions of a Public Service Commission also indicate that its Chairperson has a constitutional status.
81. Article 319 of the Constitution provides that on ceasing to hold office, the Chairperson of a State Public Service Commission cannot take up any other employment either under the Government of India or under the Government of a State, except as the Chairperson or member of the Union Public Service Commission or as the Chairperson of any other State Public Service Commission.
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82. Among other things, the functions of the State Public Service Commission include, as mentioned in Article 320 of the Constitution, conducting examinations for appointments to the services of the State. The State Public Service Commission may also be consulted by the President or the Governor of the State, subject to regulations that may be made in that behalf, on all matters relating inter alia to methods of recruitment to civil services and for civil posts and on the principles to be followed in making appointments to civil services and posts.
83. Article 322 of the Constitution provides that the expenses of the State Public Service Commission, including salaries, allowances and pensions of its members shall be charged on the Consolidated Fund of the State. Article 323 of the Constitution requires the Public Service Commission to annually present a report of the work done by it to the Governor of the State.
84. All these are serious constitutional functions and obligations cast on the Chairperson and members of the Public Service Commission and to equate their appointment with a statutory appointment and slotting their appointment in the category of a "service matter" would be reducing the Constitution into just another statute, which it is not.
iv) The remedy
85. What then is the remedy to a person aggrieved by an appointment to a constitutional position like the Chairperson of a Public Service Commission?
86. About twenty years ago, in a case relating to the appointment of the President of a statutory tribunal, this Court held in R.K. Jain v. Union of India, (1993) 4 SCC 119 that an aggrieved person - a "non- appointee" - would alone have the locus standii to challenge the offending action. A third party could seek a remedy only through a public law declaration. This is what was held:
"In service jurisprudence it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public-spirited person."
427 OA No. 170/00961/2019 & Ors/CAT/BANGALORE This view was reiterated in B. Srinivasa Reddy. Therefore, assuming the appointment of the Chairperson of a Public Service Commission is a "service matter", a third party and a complete stranger such as the writ petitioner cannot approach an Administrative Tribunal to challenge the appointment of Mr. Dhanda as Chairperson of the Punjab Public Service Commission
87. However, as an aggrieved person he or she does have a public law remedy. But in a service matter the only available remedy is to ask for a writ of quo warranto. This is the opinion expressed by this Court in several cases. One of the more recent decisions in this context is Hari Bansh Lal wherein it was held that "...except for a writ of quo warranto, public interest litigation is not maintainable in service matters."
This view was referred to (and not disagreed with) in Girjesh Shrivastava v. State of Madhya Pradesh, (2010) 10 SCC 707 after referring to and relying on Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998) 7 SCC 273, B. Srinivasa Reddy, Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590, Ashok Kumar Pandey v. State of W.B (2004) 3 SCC 349 and Hari Bansh Lal.
88. The significance of these decisions is that they prohibit a PIL in a service matter, except for the purposes of a writ of quo warranto. However, as I have concluded, the appointment of the Chairperson in a Public Service Commission does not fall in the category of a service matter. Therefore, a PIL for a writ of quo warranto in respect of an appointment to a constitutional position would not be barred on the basis of the judgments rendered by this Court and mentioned above.
89. However, in a unique situation like the present, where a writ of quo warranto may not be issued, it becomes necessary to mould the relief so that an aggrieved person is not left without any remedy, in the public interest. This Court has, therefore, fashioned a writ of declaration to deal with such cases. Way back, in T. C. Basappa v. T. Nagappa [1955] 1 SCR 250 it was said:
"The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to 428 OA No. 170/00961/2019 & Ors/CAT/BANGALORE issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions of our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges".
90. More recently, such a writ was issued by this Court was in Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 when this Court declared that Mr. K.N. Srivastava was not qualified to be appointed a Judge of the Gauhati High Court even after a warrant for his appointment was issued by the President under his hand and seal. This Court, therefore, directed:
"As a consequence, we quash his appointment as a Judge of the Gauhati High Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Article 219 of the Constitution of India to K.N. Srivastava. We further restrain K.N. Srivastava from making and subscribing an oath or affirmation in terms of Article 219 of the Constitution of India and assuming office of the Judge of the High Court."
91. Similarly, in N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1 this Court held that Justice N. Kannadasan (retired) was ineligible to hold the post of the President of the State Consumer Redressal Forum. It was then concluded:
"The superior courts may not only issue a writ of quo warranto but also a writ in the nature of quo warranto. It is also entitled to issue a writ of declaration which would achieve the same purpose."
92. Finally and even more recently, in Centre for PIL v. Union of India, (2011) 4 SCC 1 the recommendation of a High Powered Committee recommending the appointment of Mr. P.J. Thomas as the Central Vigilance Commissioner under the proviso to Section 4(1) of the Central Vigilance Commission Act, 2003 was held to be non est in law and his appointment as the Central Vigilance Commissioner was quashed. This Court opined:
429 OA No. 170/00961/2019 & Ors/CAT/BANGALORE "At the outset it may be stated that in the main writ petition the petitioner has prayed for issuance of any other writ, direction or order which this Court may deem fit and proper in the facts and circumstances of this case. Thus, nothing prevents this Court, if so satisfied, from issuing a writ of declaration."
Who may be appointed - views of this Court:
93. Having come to a conclusion that an aggrieved citizen has only very limited options available to him or her, is there no redress if an arbitrary appointment is made, such as of the person walking on the street. Before answering this question, it would be worth considering who may be appointed to a constitutional post such as the Chairperson of the Public Service Commission.
94. In Ashok Kumar Yadav v. State of Haryana , (1985) 4 SCC 417 this Court looked at the appointment of the Chairperson and members of the Public Service Commission from two different perspectives: firstly, from the perspective of the requirement to have able administrators in the country and secondly from the perspective of the requirement of the institution as such. In regard to the first requirement, it was said:
"It is absolutely essential that the best and finest talent should be drawn in the administration and administrative services must be composed of men who are honest, upright and independent and who are not swayed by the political winds blowing in the country. The selection of candidates for the administrative services must therefore be made strictly on merits, keeping in view various factors which go to make up a strong, efficient and people oriented administrator. This can be achieved only if the Chairman and members of the Public Service Commission are eminent men possessing a high degree of calibre, competence and integrity, who would inspire confidence in the public mind about the objectivity and impartiality of the selections to be made by them."
In regard to the second requirement, it was said:
"We would therefore like to strongly impress upon every State Government to take care to see that its Public Service Commission is manned by competent, honest and independent persons of outstanding ability and high reputation who command the confidence of the people and 430 OA No. 170/00961/2019 & Ors/CAT/BANGALORE who would not allow themselves to be deflected by any extraneous considerations from discharging their duty of making selections strictly on merit."
95. In Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000) 4 SCC 309 this Court considered the functional requirements of the Public Service Commission and what is expected of its members and held:
"Keeping in line with the high expectations of their office and need to observe absolute integrity and impartiality in the exercise of their powers and duties, the Chairman and members of the Public Service Commission are required to be selected on the basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning. The character and conduct of the Chairman and members of the Commission, like Caesar's wife, must therefore be above board. They occupy a unique place and position and utmost objectivity in the performance of their duties and integrity and detachment are essential requirements expected from the Chairman and members of the Public Service Commissions."
96. With specific reference to the Chairperson of the Public Service Commission who is in the position of a "constitutional trustee", this Court said:
"The Chairman of the Public Service Commission is in the position of a constitutional trustee and the morals of a constitutional trustee have to be tested in a much stricter sense than the morals of a common man in the marketplace. Most sensitive standard of behaviour is expected from such a constitutional trustee. His behaviour has to be exemplary, his actions transparent, his functioning has to be objective and in performance of all his duties he has to be fair, detached and impartial."
97. Inderpreet Singh Kahlon v. State of Punjab, (2006) 11 SCC 356 was decided in the backdrop of a Chairperson of the Punjab Public Service Commission, "an important constitutional authority", being put behind bars, inter alia, for being caught red- handed accepting a bribe. This Court asserted the necessity of transparency in the appointment to such constitutional positions. It was said:
"This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny 431 OA No. 170/00961/2019 & Ors/CAT/BANGALORE regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions."
98. Subsequently, in State of Bihar v. Upendra Narayan Singh (2009) 5 SCC 65 this Court expressed its anguish with the appointments generally made to the Public Service Commissions. It was observed:
"The Public Service Commissions which have been given the status of constitutional authorities and which are supposed to be totally independent and impartial while discharging their function in terms of Article 320 have become victims of spoils system.
In the beginning, people with the distinction in different fields of administration and social life were appointed as Chairman and members of the Public Service Commissions but with the passage of time appointment to these high offices became personal prerogatives of the political head of the Government and men with questionable background have been appointed to these coveted positions. Such appointees have, instead of making selections for appointment to higher echelons of services on merit, indulged in exhibition of faithfulness to their mentors totally unmindful of their constitutional responsibility."
99. While it is difficult to summarize the indicators laid down by this Court, it is possible to say that the two most important requirements are that personally the Chairperson of the Public Service Commission should be beyond reproach and his or her appointment should inspire confidence among the people in the institution. The first 'quality' can be ascertained through a meaningful deliberative process, while the second 'quality' can be determined by taking into account the constitutional, functional and institutional requirements necessary for the appointment.
Selection and appointment of Mr. Dhanda:
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100. Given the views expressed by this Court from time to time, learned counsel for the writ petitioner submitted that Mr. Dhanda ought not to have been appointed as the Chairperson of the Public Service Commission. Three reasons were given in this regard and all of them have been refuted by learned counsel supporting the cause of Mr. Dhanda. They are:
100.(1) There is a question mark about the character and conduct of Mr. Dhanda.
100.(2) Mr. Dhanda lacks the qualifications and stature to hold a constitutional position of the Chairperson of a Public Service Commission.
100.(3) The record shows that no meaningful and effective thought was given before appointing Mr. Dhanda as the Chairperson of the Public Service Commission.
101. As regards the first reason, certain allegations were made against Mr. Dhanda in the writ petition filed in the High Court.
However, in its order dated 13th July 2011 a Division Bench of the High Court held that: "As regards irregularities and illegalities pointed out in the petition, the same do not stand substantiated." This conclusion is strongly relied on by learned counsel supporting Mr. Dhanda.
102. However, the judgment under appeal records that the writ petitioner had alleged that Mr. Dhanda had used his political influence to effect the transfer of an officer and that the transfer was set aside by the Central Administrative Tribunal as being mala fide. In this context, during the hearing of this appeal, we were handed over a copy of the decision rendered by the Central Administrative Tribunal (Chandigarh Bench) in Original Application No. 495/PB/2007 decided on 15th November 2007. We were informed that this decision was placed before the High Court and that this decision has attained finality, not having been challenged by anybody.
103. A reading of the decision, particularly paragraph 12 thereof, does show that the applicant before the Central Administrative Tribunal was subjected to a transfer contrary to the policy decision relating to mid- term transfers. The relevant portion of paragraph 12 of the decision reads as follows:
"Even though the Government decided not to allow use of the Rest house as a permanent residence of the Chief 433 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Parliamentary Secretary, yet the applicant, being a junior officer became the victim of the annoyance of Respondent No.3 [Mr. Dhanda] and with his political influence, the Forest Minister initiated the proposal for his transfer from Ropar, which was approved by the Chief Minister..... ....But a transfer made in this manner when the work and conduct of the officer is not only being appreciated by the Secretary, but also by the Finance Minister is unwarranted and also demoralizing. These are the situations when the courts have to interfere to prevent injustice to employees who are doing their duty according to rules."
104. While it may be that Mr. Dhanda was given a clean chit by the Division Bench when the case was first before it, the fact is that information subsequently came to the notice of the High Court which indicated that Mr. Dhanda was not above using his political influence to get his way. That Mr. Dhanda came in for an adverse comment in a judicial proceeding was certainly known to him, since he was a party to the case before the Central Administrative Tribunal. But he did not disclose this fact to the Chief Minister. In the deliberative process (or whatever little there was of it) the Chief Minister did not even bother to check whether or not Mr. Dhanda was an appropriate person to be appointed as the Chairperson of the Punjab Public Service Commission in the light of the adverse comment. The "thorough and meticulous inquiry and scrutiny" requirement mentioned in Inderpreet Singh Kahlon was not at all carried out.
105. As regards the second reason, the qualifications of Mr. Dhanda are as mentioned in his bio-data contained in the official file and reproduced by the High Court in the judgment under appeal. The bio-data reads as follows:
" - Harish Rai Dhanda son of Shri Kulbhushan Rai.
- Resident: The Retreat, Ferozepur Road, Ludhiana.
- Date of Birth: 15th May, 1960.
- Attained Bachelor in Arts from SCD Government College, Ludhiana, Panjab University, 1979.
- Attained Bachelor in Laws from Law College, Panjab University (1982).
- Registered with Bar Council of Punjab and Haryana as Advocate in 1982.
- Practiced Law at District Courts, Ludhiana from 1982 to 2007.
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- Elected as President of District Bar Association, Ludhiana for seven terms.
106. The High Court noted that the official file shows that Mr. Dhanda resigned from the membership of the Punjab Legislative Assembly on 6th July 2011. The resignation was accepted the same day.
107. Mr. Dhanda had filed an affidavit in the High Court in which he disclosed that he was or had been the Vice President of the Shiromani Akali Dal and the President of its Legal Cell and its spokesperson.
108. In fairness to Mr. Dhanda it must be noted that his affidavit clearly mentions that he did not apply for or otherwise seek the post of Chairperson of the Punjab Public Service Commission. He was invited by the Chief Minister to submit his bio-data and to accept the post. The question is that with these qualifications, could it be said that Mr. Dhanda was eminently suited to holding the post of the Chairperson of the Public Service Commission? The answer to this must be in the negative if one is to agree with the expectations of this Court declared in various decisions. This is not to say that Mr. Dhanda lacks integrity or competence, but that he clearly has no administrative experience for holding a crucial constitutional position. Merely because Mr. Dhanda is an advocate having had electoral successes does not make him eminently suitable for holding a constitutional position of considerable importance and significance. It is more than apparent that Mr. Dhanda's political affiliation weighed over everything else in his appointment as the Chairperson of the Punjab Public Service Commission.
109. But, as pointed out in Mahesh Chandra Gupta the suitability of a person to hold a post is a matter of opinion and this is also a peg on which learned counsel supporting Mr. Dhanda rest their case. The "suitability test" is said to be beyond the scope of judicial review.
110. The third reason is supported by the writ petitioner through the finding given by the High Court that the official file relating to the appointment of Mr. Dhanda as the Chairperson of the Punjab Public Service Commission contains only his bio-data, a certificate to the effect that he resigned from the membership of the Punjab Legislative Assembly on 6th July 2011 and his resignation was accepted the same day and the advice of the Chief Minister to the Governor apparently to appoint Mr. Dhanda 435 OA No. 170/00961/2019 & Ors/CAT/BANGALORE as the Chairperson of the Punjab Public Service Commission. The advice was immediately acted upon and Mr. Dhanda was appointed as the Chairperson of the Punjab Public Service Commission by a notification published on 7th July 2011. In other words, the entire exercise relating to the appointment of the Chairperson of the Public Service Commission was completed in a day.
111. Learned counsel supporting the appointment of Mr. Dhanda submitted that no procedure is prescribed for the selection of the Chairperson of the Public Service Commission. Therefore, no fault can be found in the procedure adopted by the State Government. It was submitted, relying on Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 that there is an implied power to adopt any appropriate procedure for making the selection and the State Government and the Governor cannot be hamstrung in this regard.
112. It is true that no parameters or guidelines have been laid down in Article 316 of the Constitution for selecting the Chairperson of the Public Service Commission and no law has been enacted on the subject with reference to Entry 41 of List II of the 7th Schedule of the Constitution. It is equally true that the State Government and the Governor have a wide discretion in the procedure to be followed. But, it is also true that Mohinder Singh Gill refers to Lord Camden as having said that wide discretion is fraught with tyrannical potential even in high personages. Therefore, the jurisprudence of prudence demands a fairly high degree of circumspection in the selection and appointment to a constitutional position having important and significant ramifications.
113. Two factors that need to be jointly taken into account for the exercise of the power of judicial review are: the deliberative process and consideration of the institutional requirements.
114. As far as the deliberative process is concerned (or lack of effective consultation, as described in Mahesh Chandra Gupta) it is quite apparent that the entire process of selection and appointment of Mr. Dhanda took place in about a day. There is nothing to show the need for a tearing hurry, though there was some urgency, in filling up the post following the demise of the then Chairperson of the Punjab Public Service Commission in the first week of May 2011. But, it is important to ask, since the post was lying vacant for a couple of months, was the urgency such that the appointment was required to be made without 436 OA No. 170/00961/2019 & Ors/CAT/BANGALORE considering anybody other than Mr. Dhanda. There is nothing to show that any consideration whatsoever was given to appointing a person with adequate administrative experience who could achieve the constitutional purpose for which the Public Service Commission was created. There is nothing to show that any background check was carried out to ascertain whether Mr. Dhanda had come in for any adverse notice, either in a judicial proceeding or any police inquiry. It must be remembered that the appointment of Mr. Dhanda was to a constitutional post and the basics of deliberation before making the selection and appointment were imperative. In this case, clearly, there was no deliberative process, and if any semblance of it did exist, it was irredeemably flawed. The in- built constitutional checks had, unfortunately, broken down.
115. In Centre for PIL this Court struck down the appointment of the Central Vigilance Commissioner while reaffirming the distinction between merit review pertaining to the eligibility or suitability of a selected candidate and judicial review pertaining to the recommendation making process. In that case, the selection of the Central Vigilance Commissioner was made under Section 4(1) of the Central Vigilance Commission Act, 2003 (for short the Act) which reads as follows:
"4. Appointment of Central Vigilance Commissioner and Vigilance Commissioners.--(1) The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President by warrant under his hand and seal:
Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of--
(a) the Prime Minister -- Chairperson;
(b) the Minister of Home Affairs -- Member;
(c) the Leader of the Opposition in the House of the People
-- Member.
Explanation.--For the purposes of this sub-section, 'the Leader of the Opposition in the House of the People' shall, when no such Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People."
437 OA No. 170/00961/2019 & Ors/CAT/BANGALORE As can be seen, only the establishment of a High Powered Committee (HPC) for making a recommendation is provided for - the procedure to be followed by the HPC is not detailed in the statute. This is not unusual since a statute cannot particularize every little procedure; otherwise it would become unmanageable and maybe unworkable. Moreover, some situations have to be dealt with in a common sense and pragmatic manner.Acknowledging this, this Court looked at the appointment of the Central Vigilance Commissioner not as a merit review of the integrity of the selected person, but as a judicial review of the recommendation making process relating to the integrity of the institution. It was made clear that while the personal integrity of the candidate cannot be discounted, institutional integrity is the primary consideration to be kept in mind while recommending a candidate. It was observed that while this Court cannot sit in appeal over the opinion of the HPC, it can certainly see whether relevant material and vital aspects having nexus with the objects of the Act are taken into account when a recommendation is made. This Court emphasized the overarching need to act for the good of the institution and in the public interest. Reference in this context was made to N. Kannadasan.
116. Keeping in mind the law laid down and the facts as they appear from the record, it does appear that the constitutional, functional and institutional requirements of the Punjab Public Service Commission were not kept in mind when Mr. Dhanda was recommended for appointment as its Chairperson.
A suitable appointee:
117. A submission was made by learned counsel supporting the appointment of Mr. Dhanda that ultimately it is for the State Government to decide who would be the most suitable person to be appointed as the Chairperson of the Public Service Commission.
118. In this regard, reliance was placed on three decisions.
118.1 In the first such decision, that is, E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 the post of the Chief Secretary of the State was under consideration. This Court observed that the post is a sensitive one. The post is one of confidence and the Chief Secretary is a lynchpin in the administration of the State. Therefore, the Chief Secretary and the Chief Minister of the State must have complete rapport and understanding between them. If the Chief Secretary forfeits the confidence of the Chief Minister, 438 OA No. 170/00961/2019 & Ors/CAT/BANGALORE then he may be shifted to some other post in the larger interests of the administration, provided that no legal or constitutional right of the Chief Secretary is violated.
118.2. The second decision relied upon was State of W.B. v. Manas Kumar Chakraborty, (2003) 2 SCC 604. That case concerned itself with the post of the Director General and Inspector General of Police (DG&IP) in a State. This Court observed that the said post was of a very sensitive nature. It could only be filled up by a person in whom the State Government had confidence. Consequently, it was held that such a post need not be filled up only by seniority, but merit, credibility and confidence that the person can command with the State Government "must play a predominant role in selection of an incumbent to such a post."
118.3. Finally, in Hari Bansh Lal, a case concerning an appointment to a statutory post of Chairperson of a State Electricity Board, reference was made to State of Mysore v. Syed Mahmood, AIR 1968 SC 1113, Statesman (P) Ltd. v. H.R. Deb, AIR 1968 SC 1495 and State Bank of India v. Mohd. Mynuddin, (1987) 4 SCC 486 and it was held:
"It is clear from the above decisions, suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the court unless the appointment is contrary to the statutory provisions/rules."
119. These decisions are clearly distinguishable.
119.1 First of all, none of the cited decisions dealt with the appointment to a constitutional position such as the one that we are concerned with. A constitutional position such as that of the Chairperson of a Public Service Commission cannot be equated with a purely administrative position - it would be rather facetious to do so. While the Chief Secretary and the Director General of Police are at the top of the ladder, yet they are essentially administrative functionaries. Their duties and responsibilities, however onerous, cannot be judged against the duties and responsibilities of an important constitutional authority or a constitutional trustee, whose very appointment is not only expected to inspire confidence in the aspirational Indian but also project the credibility of the institution to which he or she belongs. I am, therefore, unable to accept the view that the suitability of an appointee to the post of Chairperson of a Public Service 439 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Commission should be evaluated on the same yardstick as the appointment of a senior administrative functionary.
119.2. Secondly, it may be necessary for a State Government or the Chief Minister of a State to appoint a "suitable" person as a Chief Secretary or the Director General of Police or perhaps to a statutory position, the connotation not being derogatory or disparaging, but because both the State Government or the Chief Minister and the appointee share a similar vision of the administrative goals and requirements of the State. The underlying premise also is that the State Government or the Chief Minister has confidence that the appointee will deliver the goods, as it were, and both are administratively quite compatible with each other. If there is a loss of confidence or the compatibility comes to an end, the appointee may simply be shifted out to some other assignment, provided no legal or constitutional right of the appointee is violated.
120. The question of the Chief Minister or the State Government having "confidence" (in the sense in which the word is used with reference to the Chief Secretary or the Director General of Police or any important statutory post) in the Chairperson of a State Public Service Commission simply does not arise, nor does the issue of compatibility. The Chairperson of a Public Service Commission does not function at the pleasure of the Chief Minister or the State Government. He or she has a fixed tenure of six years or till the age of sixty two years, whichever is earlier. Security of tenure is provided through a mechanism in our Constitution. The Chairperson of a State Public Service Commission, even though appointed by the Governor, may be removed only by the President on the ground of misbehaviour after an inquiry by this Court, or on other specified grounds of insolvency, or being engaged in any other paid employment or being unfit to continue in office by reason of infirmity of mind or body. There is no question of the Chairperson of a Public Service Commission being shifted out if his views are not in sync with the views of the Chief Minister or the State Government.
121. The independence of the post of the Chairperson or the member of the Punjab Public Service Commission cannot be forgotten or overlooked. That independence is attached to the post is apparent from a reading of the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 framed by the Governor of Punjab in exercise of power conferred by Article 318 of the Constitution.
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122. Regulation 2(c) of the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 defines "Member" as:
"Member" means a Member for the time being of the Commission and includes the Chairman thereof";
123. Regulation 4 of these Regulations provides that "Every Member shall on appointment be required to take the oaths in the form laid down in Appendix 'A' to these regulations."
124. The oaths that a member (including the Chairperson) is required to take in the form laid down in Appendix 'A' are oaths of allegiance, of office and of secrecy. A Note given in Appendix 'A' states: "These oaths will be administered by the Governor in person in the presence of the Chief Secretary." The oaths read as follows:
"Form of Oath of Allegiance I ________________, solemnly affirm that I will be faithful and bear true allegiance to India and to the Constitution of India as by law established and that I will loyally carry out the duties of my office."
"Form of Oath of Office I, _____________________, appointed a Member of the Punjab Public Service Commission do solemnly declare, that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment."
"Form of Oath of Secrecy I, ____________________, solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Member of the Punjab Public Service Commission, except as may be required for due discharge of my duties as such Member or as may be specially permitted by the Governor."
125. There is, therefore, a great deal of solemnity attached to the post of the Chairperson of the Public Service Commission. The Chairperson takes the oath of allegiance to India and to the Constitution of India - not an oath of allegiance to the Chief Minister. An appointment to that position cannot be taken lightly or on considerations other than the public interest. Consequently, it is not possible to accept the contention that the Chief Minister 441 OA No. 170/00961/2019 & Ors/CAT/BANGALORE or the State Government is entitled to act only on the perceived suitability of the appointee, over everything else, while advising the Governor to appoint the Chairperson of the Public Service Commission. If such a view is accepted, it will destroy the very fabric of the Public Service Commission.
Finding an appropriate Chairperson:
126. Taking all this into consideration, how can an appropriate person be searched out for appointment to the position of a Chairperson of a Public Service Commission? This question arises in the context of the guidelines framed by the High Court and which have been objected to by the State of Punjab and the State of Haryana.
127. This Court found itself helpless in resolving the dilemma in Mehar Singh Saini. This Court pointed out the importance of the Public Service Commission vis-à-vis good governance and the "common man". In this regard, it was observed that:
"The adverse impact of lack of probity in discharge of functions of the [Public Service] Commission can result in defects not only in the process of selection but also in the appointments to the public offices which, in turn, will affect effectiveness of administration of the State."
It was then noted that:
"The conduct of the Chairman and members of the Commission, in discharge of their duties, has to be above board and beyond censure. The credibility of the institution of the Public Service Commission is founded upon faith of the common man on its proper functioning."
128. In this background and in this perspective, this Court drew a distinction between the exercise of legislative power by Parliament and the executive power of the Government. It was held that laying down the qualifications and experience required for holding the office of Chairperson or member of the Public Service Commission is a legislative function. This is what this Court said:
"Desirability, if any, of providing specific qualification or experience for appointment as Chairman/members of the Commission is a function of Parliament."
442 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
129. However, the necessary guidelines and parameters for holding such an office are within the executive power of the State. It was held by this Court:
"The guidelines or parameters, if any, including that of stature, if required to be specified are for the appropriate Government to frame. This requires expertise in the field, data study and adoption of the best methodology by the Government concerned to make appointments to the Commission on merit, ability and integrity."
130. On the "legislative front", this Court found itself quite helpless. This Court obviously could not read those qualifications into Article 316 of the Constitution which were not there, nor could it direct Parliament to enact a law. All that could be done (and which it did) was to draw the attention of Parliament to the prevailing situation in the light of "the number of cases which have been referred to this Court by the President of India in terms of Article317(1) of the Constitution in recent years."
It was also noted that"
"A large number of inquiries are pending before this Court which itself reflects that all is not well with the functioning of the Commissions."
131. Apart from this Court's inability to read qualifications into Article 316 of the Constitution, it was submitted by learned counsel supporting the cause of Mr. Dhanda that this Court cannot direct that legislation be enacted on the subject. Reference was made to Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 wherein it was held:
"There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority."
A similar view was expressed in Asif Hameed v. State of J & K, 1989 Supp (2) SCC 364. It was held in that decision that:
443 OA No. 170/00961/2019 & Ors/CAT/BANGALORE "The Constitution has laid down elaborate procedure for the legislature to act thereunder. The legislature is supreme in its own sphere under the Constitution. It is solely for the legislature to consider as to when and in respect of what subject-matter, the laws are to be enacted. No directions in this regard can be issued to the legislature by the courts."
132. In Suresh Seth v. Commissioner, Indore Municipal Corpn., (2005) 13 SCC 287 this Court referred to Supreme Court Employees' Welfare Assn. and State of J&K v. A.R. Zakki, 1992 Supp (1) SCC 548 and held:
"..... this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation."
133. There is, therefore, no doubt that this Court can neither legislate on the subject nor issue any direction to Parliament or the State Legislature to enact a law on the subject.
134. On the "executive front", this Court expressed its helplessness in framing guidelines or parameters due to its lack of "expertise in the field, data study and adoption of the best methodology". Keeping this in mind, the High Court was in error in framing the guidelines that it did in the absence of any expertise in the field, data study or knowledge of the best methodology for selecting the Chairperson of the Punjab Public Service Commission.
Options before this Court:
135. But, is this Court really helpless, broadly, in the matter of laying down appropriate guidelines or parameters for the appointment of a Chairperson or members of the Public Service Commission? If Mehar Singh Saini is understood in its correct perspective, the answer to this question would be in the negative.
135.1. First of all, this Court cannot overlook the administrative imperative. There was and still is a need for the Public Service Commission to deliver the goods, as it were. In this context, the Second Administrative Reform Commission in its 15th Report looked at the past, present and future of the Public Service Commission and observed:
444 OA No. 170/00961/2019 & Ors/CAT/BANGALORE "2.5.3. In the early years of Independence, State Public Service Commissions throughout the country functioned well primarily on account of the fact that:
(a) There was objectivity in selection of competent and experienced people as Chairman and Members of the Commission. The government treated the Public Service Commission as a sacrosanct institution and the Chairman and Members were either very senior government servants (drawn usually from the ICS) or academicians of high standing in their field.
(b) The Commission enjoyed excellent reputation for objectivity, transparency and fairplay.
"2.5.4 But in recent years, this Constitutional body has suffered extensive loss of reputation in many States, mainly on account of (a) charges of corruption, favouritism and nepotism in matters of recruitment and (b) use of archaic processes and procedures in its functioning which leads to inordinate delays. For example, the civil services examinations conducted by a State Public Service Commission take a minimum time period of one and half year to complete. In some cases, it may take even longer. "2.5.6.6 The Commission is of the view that the intention behind creation of an autonomous Public Service Commission as a Constitutional authority was to create a body of achievers and ex- administrators who could select meritorious candidates for recruitment and promotion to various civil service positions under the State Government with utmost probity and transparency. There is need to take steps to ensure that only persons of high standing, intellectual ability and reputation are selected as Chairman and Members of the Public Service Commission."
In this context, the views of the Law Commission of India as contained in its 14th Report, which are at variance with the views of the Second Administrative Reform Commission contained in its 15th Report are worth highlighting, one of the reasons being that the luminaries who assisted the Law Commission reads like a veritable Who's Who from the legal firmament. This is what was said:
"Having regard to the important part played by the Public Service Commission in the selection of the subordinate judiciary, we took care to examine as far as possible the Chairman and some of the members of the Public Service 445 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Commissions in the various States. We are constrained to state that the personnel of these Public Service Commissions in some of the States was not such as could inspire confidence, from the points of view of either efficiency or of impartiality. There appears to be little doubt that in some of the States appointments to these Commissions are made not on considerations of merit but on grounds of party and political affiliations. The evidence given by members of the Public Service Commissions in some of the States does create the feeling that they do not deserve to be in the responsible posts they occupy."
135.2. Secondly, the constitutional and more important imperative is that of good governance for the benefit of the aspirational Indian. For this, an appropriate person should be selected to fill up the position of a constitutional trustee.
136. In the light of the various decisions of this Court adverted to above, the administrative and constitutional imperative can be met only if the Government frames guidelines or parameters for the appointment of the Chairperson and members of the Punjab Public Service Commission. That it has failed to do so does not preclude this Court or any superior Court from giving a direction to the State Government to conduct the necessary exercise within a specified period. Only because it is left to the State Legislature to consider the desirability or otherwise of specifying the qualifications or experience for the appointment of a person to the position of Chairperson or member of the Punjab Public Service Commission, does not imply that this Court cannot direct the Executive to frame guidelines and set the parameters. This Court can certainly issue appropriate directions in this regard, and in the light of the experience gained over the last several decades coupled with the views expressed by the Law Commission, the Second Administrative Reform Commission and the views expressed by this Court from time to time, it is imperative for good governance and better administration to issue directions to the Executive to frame appropriate guidelines and parameters based on the indicators mentioned by this Court. These guidelines can and should be binding on the State of Punjab till the State Legislature exercises its power.
Additional questions framed by the Full Bench:
137. Learned counsel supporting the appointment of Mr. Dhanda submitted that the Full Bench could not expand the scope of the 446 OA No. 170/00961/2019 & Ors/CAT/BANGALORE reference made to it by the Division Bench, nor could it frame additional questions.
138. Generally speaking, they are right in their contention, but it also depends on the reference made.
139. The law on the subject has crystallized through a long line of decisions and it need not be reiterated again and again.
139.1. The decisions include Kesho Nath Khurana v. Union of India, 1981 Supp SCC 38 "The Division Bench ought to have sent the appeal back to the Single Judge with the answer rendered by them to the question referred by the Single Judge and left it to the Single Judge to dispose of the second appeal according to law."
139.2. Kerala State Science & Technology Museum v. Rambal Co., (2006) 6 SCC 258 "It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to."
139.3. T.A. Hameed v. M. Viswanathan, (2008) 3 SCC 243 "Since, only reference was made to the Full Bench, the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits.).
139.4. And more recently, Saquib Abdul Hameed Nachan v. State of Maharashtra, (2010) 9 SCC 93 "Normally, after answering the reference by the larger Bench, it is for the Reference Court to decide the issue on merits on the basis of the answers given by the larger Bench."
140. There is no bar shown whereby a Bench is precluded from referring the entire case for decision by a larger Bench - it depends entirely on the reference made. In any event, that issue 447 OA No. 170/00961/2019 & Ors/CAT/BANGALORE does not arise in this appeal and so nothing more need be said on the subject.
141. What was the reference made by the Division Bench to the Full Bench and did that Bench frame additional questions? The answer to this is to be found in the judgment of the High Court. The reference has not been artistically drafted, but it reads as follows:
"6. Even though, Article 316 of the Constitution does not prescribe any particular procedure, having regard to the purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. It is undisputed that person to be appointed must have competence and integrity. Reference may be made to the judgments of the Hon'ble Supreme Court in R/o Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000) 4 SCC 309, Ram Kumar Kashyap and Anr. v. Union of India and Anr., AIR 2010 SC 1151 and In re Mehar Singh Saini, Chairman, HPSC and Ors., (2010) 13 SCC 586.
7. If it is so, question is how such persons are to be identified and selected and whether in the present case, procedure adopted is valid and if not, effect thereof. We are of the view that these questions need to be considered by a Bench of three Hon'ble Judges. Accordingly, we refer the matter to a Bench of three Hon'ble Judges."
142. On the basis of the submissions made, the Full Bench reformulated the questions referred to it in the following words:
"1. Whether the present petition is not maintainable as the questions raised are the concluded questions by the decisions of the Supreme Court?
2. Whether the present petition is public interest litigation in a service matter, and hence not maintainable on the said ground also?
3. Whether this Court can issue directions in the nature of guidelines for a transparent, fair and objective procedure to ensure that the persons of impeccable personal integrity, caliber and qualifications alone are appointed as the members / Chairman of State Public Service Commission?
4. Whether in exercise of power of judicial review, it could be stated that the decision making process leading to the 448 OA No. 170/00961/2019 & Ors/CAT/BANGALORE appointment of Respondent No. 4 [Mr. Harish Rai Dhanda] as Chairman of Commission was arbitrary, capricious or violative of Article 14?"
143. The reformulation was explained by the Full Bench by stating that the first two questions were raised on behalf of the State of Punjab regarding the maintainability of the reference itself. In my opinion, the first two questions actually touch upon the maintainability of the writ petition itself. These issues should have been decided by the Division Bench and had it answered the questions in the negative, there would have been no need to make any reference to the Full Bench.
144. Much was sought to be made by learned counsel for the writ petitioner that the "matter" (that is the entire matter) was referred to the Full Bench. It is difficult to agree that the entire "matter" was referred to the Full Bench. Firstly, the word "matter" must take colour from the context in which it was used, which is with reference only to the two questions placed before the Full Bench. Secondly, even the Full Bench did not think that the entire matter was referred to it and that is why after answering the reference the "matter" was remitted to the Division Bench for disposal in accordance with law.
145. To this extent, learned counsel supporting the cause of Mr. Dhanda are right that the Full Bench overstepped its mandate. But where does this discussion lead us to? The two questions were fully argued in this Court for the purposes of obtaining a decision on them, and no suggestion was made that the decision of the Full Bench on these questions be set aside because of a jurisdictional error and the Division Bench be asked to decide them quite independently. Therefore, this issue is only of academic interest so far as this appeal is concerned notwithstanding the law that a larger Bench should decide only the questions referred to it. Of course, if a subsidiary question logically and unavoidably arises, the larger Bench cannot be dogmatic and refuse to answer it. A common sense approach must be taken on such occasions.
146. So far as questions 3 and 4 formulated by the Full Bench are concerned, I am of the opinion that they merely articulate and focus on the issues that were not quite attractively phrased by the Division Bench. I am not in agreement that the Full Bench overstepped its jurisdiction in the reformulation of the issues before it.
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147. It was then submitted that there was really no occasion for the Division Bench to make any reference to the Full Bench of the High Court on the question of framing guidelines or parameters for the appointment of the Chairperson of the Punjab Public Service Commission. This Court had already laid down the law in Mehar Singh Saini and the High Court was merely required to follow it. The argument puts the issue rather simplistically. The Division Bench was fully entitled to refer to the Full Bench the applicability of the decision of this Court to the facts of the case and for further follow up action, if necessary. This argument is mentioned only because it was raised and nothing really turns on it, except to the extent that it is another way of questioning the maintainability of the writ petition filed in the High Court.
Impleadment of the State of Haryana by the Full Bench:
148. The justification given by the Full Bench for suo motu impleading the State of Haryana and the Haryana Public Service Commission is because "issues common in respect of the States of Punjab and Haryana, were likely to arise." I think this is hardly a reason for impleadment. The case concerned the appointment of the Chairperson of the Punjab Public Service Commission and it should have and could have been left at that without enlarging the scope of the controversy before it.
Production of the Chief Minister's advice:
149. Learned counsel for the State of Punjab submitted that the High Court could not have directed production of the advice tendered by the Chief Minister to the Governor. The basis of this argument is the order dated 1st August 2011 passed by the Full Bench. The relevant portion of the order reads as follows:
"Mr. Jindal, Addl. Advocate General shall also produce the record relating to the appointment process of respondent No.4 [Mr. Dhanda]."
The grievance made by learned counsel in this regard is justified. It need only be pointed out that in State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 this Court clearly held that:
"It is hardly necessary to recall that advice given by the Cabinet to the Rajpramukh or the Governor is expressly saved by Article 163, sub- article (3) of the Constitution; and in the case of such advice no further question need to be considered."
450 OA No. 170/00961/2019 & Ors/CAT/BANGALORE It is not necessary to say anything more on this subject.
Conclusion:
150. The appointment of the Chairperson of the Punjab Public Service Commission is an appointment to a constitutional position and is not a "service matter". A PIL challenging such an appointment is, therefore, maintainable both for the issuance of a writ of quo warranto and for a writ of declaration, as the case may be.
151. In a case for the issuance of a writ of declaration, exercise of the power of judicial review is presently limited to examining the deliberative process for the appointment not meeting the constitutional, functional and institutional requirements of the institution whose integrity and commitment needs to be maintained or the appointment for these reasons not being in public interest.
152. The circumstances of this case leave no room for doubt that the notification dated 7th July 2011 appointing Mr. Harish Rai Dhanda was deservedly quashed by the High Court since there was no deliberative process worth the name in making the appointment and also since the constitutional, functional and institutional requirements of the Punjab Public Service Commission were not met.
153. In the view that I have taken, there is a need for a word of caution to the High Courts. There is a likelihood of comparable challenges being made by trigger-happy litigants to appointments made to constitutional positions where no eligibility criterion or procedure has been laid down. The High Courts will do well to be extremely circumspect in even entertaining such petitions. It is necessary to keep in mind that sufficient elbow room must be given to the Executive to make constitutional appointments as long as the constitutional, functional and institutional requirements are met and the appointments are in conformity with the indicators given by this Court from time to time.
154. Given the experience in the making of such appointments, there is no doubt that until the State Legislature enacts an appropriate law, the State of Punjab must step in and take urgent steps to frame a memorandum of procedure and administrative guidelines for the selection and appointment of the Chairperson and members of the Punjab Public Service Commission, so that the possibility of arbitrary appointments is eliminated.
451 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
155. The Civil Appeals are disposed of as directed by Brother Patnaik, J."
109. In this case the Hon'ble Apex Court decided whether the appointment of the Chairman of Public Service Commission is a service matter or a PIL raising a question of quo warranto can be raised. Paragraph 150, 151 and 152 clears this point. But paragraph 153, the applicants say, is very pertinent. "In the view that I have taken, there is a need for a word of caution to the High Courts.
There is a likelihood of comparable challenges being made by trigger-happy litigants to appointments made to constitutional positions where no eligibility criterion or procedure has been laid down. The High Courts will do well to be extremely circumspect in even entertaining such petitions. It is necessary to keep in mind that sufficient elbow room must be given to the Executive to make constitutional appointments as long as the constitutional, functional and institutional requirements are met and the appointments are in conformity with the indicators given by this Court from time to time."
110. Therefore since the procedure adopted by the KPSC was in force from 1975 onwards and unless a challenge is made to that, based on a vague allegation of fraud alleged by somebody, life and livelihood of the applicants cannot be touched or diminished or destroyed, says the applicant.
452 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
111. The applicant relied on Section 14 and Section 15 of the Administrative Tribunals Act which we quote:
"14. Jurisdiction, powers and authority of the Central Administrative Tribunal.- (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court in relation to-
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;
(b) all service matters concerning-
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred in clause (c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-
clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.
[Explanation - for the removal of doubts, it is hereby declared that references to "Union" in this sub-section shall be construed as including references also to a Union territory.] 453 OA No. 170/00961/2019 & Ors/CAT/BANGALORE (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations [or societies] owned or controlled by Government, not being a local or other authority or corporation [or society] controlled or owned by a State Government:
Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations [or societies].
(3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court in relation to-
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society]; and
(b) all service matters concerning a person [other than a person referred to in clause (a) or clause(b) of sub-section (1) ] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs."
15. Jurisdiction, powers and authority of State Administrative Tribunals- (1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to -
(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;
(b) all service matters concerning a person [not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause b) of sub- section (1) of section 14] appointed to any civil service of 454 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation [or society] owned or controlled by the State Government;
(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation [or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment. (2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section(3) to local or other authorities and corporations [or societies] controlled or owned by the State Government:
Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations [or societies].
(3) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall also exercise, on and from the date with effect from which the provisions of this sub-
section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court) in relation to -
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society]; and
(b) all service matters concerning a person [other than a person referred to in clause (b) of sub-section (1) of this section or a member, person or civilian referred to in clause
(b) of sub-section(1) or section 14] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs.
455 OA No. 170/00961/2019 & Ors/CAT/BANGALORE (4) For the removal of doubts, it is hereby declared that the jurisdiction, powers, and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable."
112. Twin grounds are assailed in this matter. One is the effect of Section 14. Section 14 clearly enunciates that all persons in or being a member of Indian Administrative Service or wishes to progress into Indian Administrative Service can only approach the Central Administrative Tribunal. They rely on several judgments on that issue. They would further say that there is an exclusionary clause in Section 15 of the Administrative Tribunals Act which indicate that no person in Indian Administrative Service is empowered to approach the Hon'ble Karnataka Administrative Tribunal for relief. Thus they say that a harmonious approach is to be taken in that Section 14 and 15 are to be read together. The direction No. 6 was given as, at that point of time, the applicants were all KAS officers. Therefore they can only come to the Karnataka Administrative Tribunal at that point of time. At this point of time, learned counsel Shri Narayan Bhat would submit that but the matter of their selection was challenged by one amongst the persons concerned and the Hon'ble Apex Court had passed an interim order. The interim order stated that the 456 OA No. 170/00961/2019 & Ors/CAT/BANGALORE selection of the applicants will be subject to the result of the SLP.
In fact, he would say that applicants had entered into the portals of Indian Administrative Service fully knowing that their appointment is under a cloud. But since the Hon'ble Apex Court had dismissed the SLP, their selection became doubtful. On specific query, he did not answer as to what prejudice the Hon'ble Apex Court might have meant when it said that selection would be resultant on the result of the SLP. Per contra, learned counsel Shri Ponnanna would submit that the SLP was filed against the selection and on dismissal the Hon'ble Apex Court had only stated that there is nothing wrong in the selection or in the right of the applicant to apply for such selection. It do not diminish in any way from the right which is accrued to the applicants.
113. We heard all the learned counsels on the applicability of the direction No. 6 of the second instance High Court order. The ground raised by Shri Narayan Bhat seems to be that, on the date on which the second instance High Court order was passed and later on was affirmed by the Hon'ble Supreme Court and variously assailed or affirmed in various forums, the right of the parties have crystallized as on the date of the suit. Per contra, the learned counsel for the applicants relies on several judgments of the Hon'ble Apex Court to prove that in fact the Courts have to look into not only the facts as assailed at the time of the suit but also 457 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the subsequent events to mould the relief effectively and correctly.
114. They would say that if the facts of the suit would have crystallised on the date of a litigation it would have been taken to mean that the facts as narrated by the first instance judgment of the Hon'ble High Court should be taken to mean that facts as on that date should be crystallised. But then in the second instance judgment also the factual position was narrated differently and approached differently as the subsequent events have been already been taken into account.
115. They would say that even after that also events have moulded themselves into a different shape and these also have to be taken into account otherwise equity and justice cannot be achieved. They would say that when the Hon'ble Apex Court held that subject to the result of the SLP applicants can be promoted as IAS officers, a crystallisation of pleadings have taken place.
They were thereafter, if they were to be selected as IAS officers, deemed to be having another option also to pursue in the matter of the 6th direction in the second instance judgment. They rely on the judgment of the Hon'ble Apex Courtin Om Prakash Gupta Vs. Ranbir B. Goyal in Civil Appeal No. 5460/1999 dated 18.01.2002, which we quote:
458 OA No. 170/00961/2019 & Ors/CAT/BANGALORE "CASE NO.:
Appeal (civil) 5460 of 1999 PETITIONER:
OM PRAKASH GUPTA Vs. RESPONDENT:
RANBIR B. GOYAL DATE OF JUDGMENT: 18/01/2002 BENCH:
R.C. Lahoti & Brijesh Kumar JUDGMENT:
R.C. Lahoti, J.
The suit premises are described as booth no.13, Sector 8, Panchkula. These premises were let out by the plaintiff- respondent to the defendant-appellant sometime in August, 1989 on a monthly rent of Rs.2650/-, excluding electricity charges. Since then the defendant-appellant has been running therein a shop of provision goods and general stores. He fell into arrears of rent and electricity charges with effect from 1st April, 1990. The plaintiff-respondent served on him a notice demanding payment of arrears and terminating his tenancy. On failure to comply with the notice a suit for eviction was filed in the Court of Civil Judge on 12.9.1990. The defendant-appellant contested the suit mainly on the ground of notice of ejectment being defective. The Trial Court, by its judgment dated 11th June, 1998, answered all the issues in favour of the plaintiff-respondent and directed the suit for eviction and recovery of arrears to be decreed. First and second appeals preferred by the defendant-appellant have been dismissed. This is an appeal filed by special leave.
It has been common case at the Bar that the suit premises are situated in the State of Haryana where the provisions of the Transfer of Property Act are not applicable and the rights and obligations of the parties are to be worked out and governed under common law of the land. At the time of hearing it was conceded by the learned counsel for the appellant that no fault can be found with the decree of the Trial Court as confirmed by the First Appellate Court and the High Court. However, the 459 OA No. 170/00961/2019 & Ors/CAT/BANGALORE learned counsel for the appellant submitted that there has been a subsequent event having a material bearing on the judgment under appeal and the right of the respondent to decree. Such subsequent event is now the core of controversy, the relevant facts relating to which, are stated in the succeeding paragraphs.
It appears that the suit premises have been constructed by Haryana Urban Development Authority (HUDA, for short), governed by the provisions of The Haryana Urban Development Authority Act, 1977 (the Act, for short). The premises have been allotted by HUDA to the plaintiff-respondent and the latter is required to pay certain instalments to HUDA and a failure in payment of instalments renders the allotment liable to cancellation with recovery of arrears, imposition of penalty and resumption of possession under Section 17 of the Act. The High Court rendered its judgment in Second Appeal on 15.12.1998. The only contention dealt with by the High Court, in view of the singular submission made before it, was to allow the appellant three months' time for vacating the premises subject to an undertaking for vacating the premises on expiry of three months. SLP was filed on 8.3.1999. On 30.3.1999 this Court directed a notice on SLP to be issued to the respondent and at the same time passed an interim order staying the operation of the decree appealed against. On 15.3.1999, the date on which the time appointed by the High Court for vacating the premises was coming to an end, the tenant-appellant moved an application before the High Court seeking one month's extension of time for compliance with the direction of the High Court on two grounds:
firstly, that though the SLP was filed in this Court it was yet to be taken up for hearing; and secondly, HUDA had initiated proceedings for resumption of the suit premises against the plaintiff-respondent. It appears that the High Court extended the time for vacating the premises till 20.4.1999. In the meantime, as already stated, this Court granted interim relief to the appellant although the factum of extension of time granted by the High Court and the grounds therefor were not brought to the notice of this Court. All these facts were brought to the notice of this Court through an affidavit filed (by way of counter-affidavit to the special leave petition) on 11th May, 1999 by the plaintiff- respondent submitting that the conduct of the defendant- appellant did not entitle him to any relief in the discretionary jurisdiction of this Court under Article 136 of the Constitution.
An additional affidavit by way of rejoinder was filed by the appellant on 8th June, 1999 wherein it has been stated that after 460 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the filing of SLP in this Court the appellant had received a notice dated 7.4.1999 from the Estate Officer, HUDA asking him to vacate the suit premises. On 19.5.1999 the appellant has submitted an application to HUDA requesting them to allot the suit premises to the appellant on the same terms and conditions or any other terms and conditions as may be thought fit by HUDA. It was submitted that in these circumstances, as the plaintiff-respondent has ceased to be owner of the suit premises, he was not entitled to execute the decree for eviction and the same was liable to be set aside.
At the time of hearing the learned counsel for the plaintiff- respondent brought to the notice of this court an order dated 22.6.2000 passed by Chief Administrator, HUDA, an Appellate Authority over the Estate Officer, HUDA whereby an appeal filed by the respondent has been allowed and the respondent has been allowed an extension of time for payment of the arrears of instalments to HUDA.
The relevant facts emerging from a perusal of the documents placed on record by the parties insofar as they relate to the proceedings before HUDA may briefly be noticed.
On 12.2.1999 the Estate Officer, HUDA passed an order recalling the allotment of the suit premises for failure of the respondent to pay the amount of instalments in arrears and the interest accrued thereon, forfeiting the amount already paid. On 7.4.1999 the appellant was served with a notice by the Estate Officer to remove his unauthorized occupation of the premises. On 19.5.1999 the appellant proposed to HUDA that he was ready and willing to pay the Authority the entire amount which was to be paid by the respondent to it along with interest and to have the suit premises allotted to himself. In between, the plaintiff respondent had preferred an appeal under Section 18 of the Act, putting in issue the order of Estate Officer, which appeal came to be allowed and the order of resumption has been set aside. It appears that there was a dispute as to the rate at which the interest was levied by HUDA on the amount of instalments in arrears, as to which the High Court of Punjab & Haryana had issued some directions which the Authority was required to comply. The Appellate Authority directed the Estate Officer to calculate interest consistently with the decision of the High Court and to allow 30 days' time to the respondent to make payment failing which the resumption may follow. On 3.11.2000 the respondent has written to the Estate Officer inviting his attention to the appellate order, his failure to act thereon and expressing 461 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the willingness of the respondent to pay the amount subject to its being calculated by the Estate Officer as per the appellate order of the Administrator. What has happened thereafter is not known.
It is common case of the parties that the rights and obligations of the parties as landlord and tenant are not to be worked out as statutorily enacted by Transfer of Property Act as the same is not applicable to the State of Haryana. However, still, the learned counsel for the parties have not disputed that the principles flowing from the provisions of the Transfer of Property Act may safely be taken as a guide to work out the mutual rights and obligations of the parties under the general law. A tenant inducted into possession of the tenancy premises is ordinarily bound to restore possession over the tenancy premises to the landlord on the tenancy coming to an end. Such obligation comes to an end either by actually fulfilling the obligation or by proving that the landlord's title stands extinguished by the landlord's eviction by title paramount. The burden of proving eviction by title paramount lies on the party who sets up such defence. In a recent decision by us in Vashu Deo Vs. Bal Kishan (C.A. Nos.5467-5468 of 1998 decided on January 11, 2002) we have held :
"To constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises, three conditions must be satisfied: (i) the party evicting must have a good and present title to the property; (ii) the tenant must have quitted or directly attorned to the paramount title holder against his will; (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly; or, in other words, the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount title holder, lies on the party relying on such defence."
In Vashu Deo's case (supra) the landlord-owner of the tenancy premises was a Trust. The Trust had let out the premises to a tenant and the tenant had inducted a sub-tenant in the premises. The Trust had instituted a suit for eviction against the tenant 462 OA No. 170/00961/2019 & Ors/CAT/BANGALORE subsequent to the institution of the suit by tenant against sub- tenant claiming arrears of rent and eviction of the latter. Immediately on institution of suit by the principal owner, i.e. the Trust, the sub-tenant had voluntarily attorned in favour of the principal owner and without the consent of the tenant. Suit by the principal owner against the tenant was still pending. This Court noticed the provisions of local rent control law whereunder entitlement of the tenant to hold the suit premises as tenant would not come to an end unless a decree for eviction against him was passed by a court of law in a suit for eviction instituted by the principal owner against the tenant and then held - 'till then he would remain a tenant of the Trust. Mere institution of a suit for eviction by the Trust, the owner of the property, against the respondent does not bring the tenancy of the respondent to an end. The respondent cannot be said to have been evicted by title paramount. It cannot be said that the respondent-tenant does not have any defence nor can he lawfully resist the suit filed by the owner Trust. The plain and simple legal position which flows is that the appellant must discharge his statutory obligation to put his landlord, that is, the respondent, in possession of the premises in view of the latter's entitlement to hold the tenancy premises until his own right comes to an end and the respondent must discharge his statutory obligation to put his own landlord, that is, the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy premises coming to an end. The plea of eviction by paramount title is not available to the appellant for three reasons: firstly, it cannot be said that the Trust is armed with a legal process for eviction which cannot be lawfully resisted by the tenant-respondent or to which he has no defence; secondly, the attornment by the appellant in favour of the Trust is voluntary and not under any compulsion; and thirdly, it cannot be said that the Trust has such good and present title against the tenant-respondent so as to hold the appellant liable to be evicted against his will'.
For two reasons we do not think that the defendant-appellant is entitled to any relief and for setting aside of the decree for eviction. Firstly, there is neither any order of resumption and forfeiture within the meaning of Section 17 of the Act passed by HUDA against the respondent nor is there an allotment by HUDA directly in favour of the appellant. In view of the order of the Estate Officer having been set aside by the Appellate Authority under the Act the allotment made by HUDA in favour of the respondent continues to subsist. His title, under which he had inducted the appellant in possession of the suit premises, has not come to an end. The triple test, laid down by this court in Vashu 463 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Deo's case is not satisfied. Secondly, the appellant is placing reliance on an event happening after the institution of suit, i.e. a subsequent event and a case for taking notice of such subsequent event by court so as to impair the judgment under appeal is not made out.
The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied : (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.In Pasupuleti Venkateswarlu Vs. The Motor & General Traders - AIR 1975 SC 1409 this Court held that a fact arising after the lis, coming to the notice of the Court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the Court cannot be blinked at. The Court may in such cases bend the rules of procedure if no specific provision of law or rule of fairplay is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The court speaking through Krishna Iyer, J. affirmed the proposition that court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fairplay is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautions, and (iv) the rules of fairness to both sides should be scrupulously obeyed.
Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, 464 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Messrs. Trojan & Co. Vs. RM. N.N. Nagappa Chettiar - AIR 1953 SC 235 this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao Vs. Sita Ram Kesho & Ors. - (1898) 25 Indian Appeals 195 (PC), their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted.
Power of the Court to take note of subsequent events, specially at the appellate stage, came up for the consideration of a Full Bench of Nagpur High Court presided over by Justice Sinha (as His Lordship then was) in Chhote Khan Vs. Mohammad Obedulla Khan, AIR 1953 Nag 361. Hidayatullah, J. (as His Lordship then was) held, on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. No doubt, Courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right and title of the plaintiff. The doctrine itself is of an exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal. His Lordship quoted the statement of law made by Sir Asutosh Mookerjee, J. in a series of cases that merely because the plaintiff loses his title 'pendente lite' is no reason for allowing his adversary to win if the corresponding right has not vested in the adversary but in a third party. In the case at hand, the defendant-appellant has simply stated the factum of proceedings initiated by HUDA against the plaintiff-respondent in an affidavit very casually filed by him. He has not even made a prayer to the Court to take notice of such subsequent event and mould the relief accordingly, or to deny the relief to the plaintiff-respondent as allowed to him by the judgment under appeal, much less sought for an amendment of the pleadings. The subsequent event urged by the defendant- appellant is basically a factual event and cannot be taken cognizance of unless brought to the notice of the Court in 465 OA No. 170/00961/2019 & Ors/CAT/BANGALORE accordance with established rules of procedure which if done would have afforded the plaintiff-respondent an opportunity of meeting the case now sought to be set up by the appellant. We do not think this Court would be justified in taking notice of a fact sought to be projected by the appellant in a very cavalier manner. The fact remains that the present one is a landlord-tenant dispute and we cannot upset the relief granted by the courts below and the High Court to the plaintiff-respondent by relying on the doctrine of eviction by title paramount as it cannot be said that the proceedings initiated by HUDA against the plaintiff- respondent have achieved a finality or are such proceedings wherein the plaintiff-respondent cannot possibly have any sustainable defence.
For the foregoing reasons the appeal is held liable to be dismissed and is dismissed accordingly with costs throughout. The appellant is allowed three months time to deliver vacant and peaceful possession to the plaintiff respondent subject to his filing usual undertaking and clearing all the arrears under the decree within 3 weeks."
116. They also rely on yet another judgement of the Hon'ble Apex Court in Lekh Raj Vs. Muni Lal & Others in Civil Appeal No. 1057- 1058/2001 dated 06.02.2001, which we quote:
"CASE NO.:
Appeal (civil) 1057-1058 of 2001 PETITIONER:
LEKH RAJ Vs. RESPONDENT:
MUNI LAL & ORS.
DATE OF JUDGMENT: 06/02/2001 BENCH:
A.P. Misra & D.P. Mohapatra.
466 OA No. 170/00961/2019 & Ors/CAT/BANGALORE JUDGMENT:
MISRA. J.
Leave granted.
The present appeals are by the defendant-tenant as against the order dated 24th March, 2000 passed by the High Court in its revisional jurisdiction by which it reversed the finding of the appellate court that the disputed shop in question is not unsafe for human habitation. The questions raised in these appeals are:
(1) Whether the High Court under its Revisional Jurisdiction which limits to examine the legality and propriety of the appellate court order was justified in reversing its findings based on evidence on record.
(2) Whether the High Court could have appointed a local Commissioner while exercising its revisional jurisdiction and to reverse the finding of the appellate court based on the report of such Commissioner.
In order to appreciate the controversies we are herewith giving some of the essential facts. The appellant took the disputed shop on rent from one Aya Ram who sold the said shop to one Prakash Rani. The respondents nos. 1 to 8 are Lrs. of this Prakash Rani, who filed petition for eviction against the appellant under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'Act) from the disputed shop. The eviction petition was based on three grounds: (a) The appellant has not paid the rent from 2nd July, 1968, (b) He has sub-let the shop without taking the permission of the landlord and
(c) the building is in dilapidated condition with cracks hence not fit for human habitation requiring demolition and reconstruction. The appellant denied all these and other allegations made in the petition. The trial court decreed the eviction petition. It held that the appellant tendered the rent on 24.10.1975 about which no grievance was made by the respondent-landlord at the time of arguments, the shop was sub-let by the appellant, and the disputed shop is unfit for human habitation. The appellant filed appeal and the Appellate Court set aside the trial court findings. It held that sub- letting has not been proved. It further, on the basis of evidence on record, held that it cannot be said that the cracks in the building have made it unfit or unsafe for human habitation. Aggrieved by this the respondent filed revision in the High Court.
467 OA No. 170/00961/2019 & Ors/CAT/BANGALORE During the pendency of the said revision an application was moved by respondents for appointment of a local Commissioner which was objected through written objection by the appellant. The said local Commissioner submitted his report to the court, the relevant portion of his report is quoted hereunder:
there was a hole in the roof measuring 13 x 12 which had been temporarily shut from the interior side with the help of wooden planks by giving the support of sticks and from the upper side this hole was found and 4 Ballies near the hole were in a decayed condition and wooden planks near the hole were in a bad condition due to seepage of water from the hole of the roof..The outerside of the right side wall of the shop, there was a big crack on the beginning of the wall extending from top to more than middle of the wall. This crack measuring 2x 7.5 (depth) from the upper side and 1.5 x 6.5 from the lower side and in the end of the same wall, there was also a big crack measuring 2x 8 from the upperside 2x7 from the lower side and the roof of the passage was in a totally damaged condition which did not cover the shop but covers the passage.
The appellant filed objection to this report pointing certain anomalies with a prayer to ignore this report and appoint another local Commissioner. The High Court confirmed as against respondent-landlord, the finding of the Appellate Court on the question of sub-letting. However, it reversed its finding based on the said local Commissioner report by holding that the disputed shop is unfit for human habitation. The appellant being aggrieved by this order has filed the present appeal.
The submission is, power of revision cannot be construed to empower court to reappraise the evidence and disturb the findings of fact recorded by the Appellate Court. Having limited revisional jurisdiction the High Court was not justified in interfering with the finding recorded by the Appellate Court.
To appreciate this submission the revisional power of the High Court under sub-section 5 of Section 15 of the aforesaid Act is quoted hereunder:
15(5): The High Court may, at any time, on the application of any aggrieved party or on its own motion, call and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order/proceedings and may pass an order in relation thereto as it may deem fit.
468 OA No. 170/00961/2019 & Ors/CAT/BANGALORE The law on the subject is well settled. The language of this sub- section clearly spells out, High Court jurisdiction is neither restricted to what is under Section 115 of the Civil Procedure Code nor it is as large as power of the Appellate Authority. The High Court under its supervisory revisional jurisdiction could examine the legality or propriety of any order. This legality or propriety widens the scope of the High Court which is larger than the power of revision under Civil Procedure Code. But in no case it confers power to set aside findings of fact by reappraisal of evidence. In doing so it would be trespassing its jurisdiction. However, good reason for drawing a different conclusion it cannot be construed to be within jurisdiction. Thus courts have to carve out a field for the exercise of revisional jurisdiction under sub-section (5) of Section 15, emanating from the words legality and propriety which should be between limited revisional jurisdictional under Section 115 CPC and wider appellate jurisdiction.
Strong reliance has been placed for the appellant in Lachmand Dass vs. Santokh Singh, (1995) 4v SCC 202. This Court was considering, the revisional jurisdiction of the High Court under sub- section (6) of Section 15 under the Haryana Rent Control Act which is para materia with the revisional power under the aforesaid Act under which we are considering. This Court held:
In the present case sub-section (6) of Section 15 of the Act confers revisional power on the High Court for the purpose of satisfying itself with regard to the legality or propriety of an order or proceeding taken under the Act and empowers the High Court to pass such order in relation thereto as it may deem fit. The High Court will be justified in interfering with the order in revision if it finds that the order of the appellate authority suffers from a material impropriety or illegality. From the use of the expression Legality or propriety of such order or proceedings occurring in sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach.
For the appellant, reliance is also placed on Shiv Lal vs. Sat Parkash and Anr., 1993 Supp. (2) SCC 345. It was held:
469 OA No. 170/00961/2019 & Ors/CAT/BANGALORE While exercising jurisdiction under Section 15(5) of the Act the Court does not act as a regular third appellate court and can interfere only within the scope of the sub-section. In the present case, the High Court, on being misled by its view that the cession of tenancy is a necessary element of Section 13(2)(iv), the High Court proceeded to re- examine the evidence on the records, and reversed the finding of facts concurrently arrived at by the trial Court and the first appellate court. An examination of the facts and circumstances of this case indicates that the reconsideration of the evidence by the High Court was not justified.
On the other hand learned counsel for the appellant has relied on Mrs. Mohini Suraj Bhan vs. Vinod Kumar Mital, (1986) 1 SCC
687. This Court observed:
It cannot be disputed that the powers of the High Court under Section 15(5) of the Act are wide and not confined merely to examining the legality of the appellate authoritys order nor are those powers akin to the revisional powers of the High Court under Section 115 of the CPC.
The pith and substance of these authorities, to which appellant relies is that Court under its revisional jurisdiction cannot disturb finding of facts nor could it reappraise evidence on record, it can only interfere if there is impropriety and illegality in the impugned order. One of the submissions for the appellant is that the High Court in its revisional jurisdiction should not have permitted the inspection of the disputed shop by the local Commissioner while exercising its revisional jurisdiction. The submission is, the revisional court could only take into consideration the fact existing on the date of filing of the eviction petition supported by evidence on record, thus by bringing on record the aforesaid report of the local Commissioner which was called after 18 years of the pendency of the revision in the High Court cannot be said to be within the jurisdiction of the Revisional courts.
The law on the subject is also settled. In case subsequent event or fact having bearing on the issues or relief in a suit or proceeding, to which any party seek to bring on record, the Court should not shut its door. All laws and procedures including functioning of courts are all in aid to confer justice to all who knocks its door. Courts should interpret the law not in derogation of justice but in its aid. Thus bringing on record subsequent event, which is relevant, should be permitted to be brought on record to render justice to a party. But the court in doing so should be cautious not to permit it in a routine. It should refuse 470 OA No. 170/00961/2019 & Ors/CAT/BANGALORE where a party is doing so to delay the proceedings, harass other party or doing so for any other ulterior motive. The courts even before admitting should examine, whether the alleged subsequent event has any material bearing on issues involved and which would materially effect the result. In Pasupuleti Venkateswarlu vs. The Motor & General Traders, (1975) 1 SCC 770, this Court has very clearly held to the same effect:
It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink as it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.
This Court in Ramesh Kumar vs. Kesho Ram, 1992 Supp. (2) SCC 623 held:
The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a cautious cognizance of the subsequent changes of fact and law to mould the relief. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri Chief Justice Sir 471 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Maurice Gwyer observed: (AIR p.6) But with regard to the question whether the court is entitled to take into account legislative changes since the decision under appeal was give, I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In Patterson v. State of Alabama, Hughes C.J. said:
We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or law, which has supervened since the judgment was entered.
This decision also relied in the case of Pasupuleti Venkateswarlu vs. The Motor & General Traders, (1975) 1 SCC 770 (supra).
In the background of the aforesaid well settled legal principle we perused the application of the respondent dated 31st March, 1999, before the High Court, for the appointment of a local Commissioner. It is unfortunate, but the fact is that civil revision remained pending in the High Court for more than 18 years when the said application was made. The relevant portion of the application is quoted hereunder:- That during the pendency of the present revision petition, the roof of the shop in dispute has also fallen down and the condition of the shop in dispute has further deteriorated as would be clear from a perusal of the photographers attached as ANNEXURE P-1. It is well settled that subsequent events which have taken place during the pendency of the revision petition can and should be taken into consideration and the relief moulded accordingly.
The respondent through this application states that the roof of the shop has since also fallen down and its condition further deteriorated, during the pendency of this revision, hence sought for the appointment of a local Commissioner which was allowed. On these facts, in view of the issue, whether the accommodation in question is fit for human habitation, with the long passage of eighteen years, if fresh assessment was sought through a local Commissioner, it cannot be said, in allowing such Commission the High Court exceeded in its revisional jurisdiction.
Now, we proceed to examine the submissions for the appellant, which is primarily based on the objections recorded in his reply affidavit to the respondents application for the appointment of a 472 OA No. 170/00961/2019 & Ors/CAT/BANGALORE local Commissioner and the objections dated 10th January, 2000 to the said Commissioner report dated 7th July, 1999. The objection as recorded therein are; (a) when the application for ejactment was filed, there was no crack in the wall of the disputed shop (b) the cracks are from the Dehori side which are in possession of the landlord, (c) Similarly when the application for ejactment was made the roof of the shop was in absolute perfect condition, (d) the landlord has deliberately damaged the roof for which the appellant filed a complaint to the police. Each of these objections has no force. The objection with respect to the cracks on the wall and the condition of the roof is, when the application for eviction was filed there were no cracks in the wall.
This objection has no merit, as per own evidence of the appellant, he testified existence of such cracks but said, for this reason it cannot be said it to be unfit for human condition. The submission that court could only take into consideration on the facts existing on the date of suit only has also no merit.
In view of the legal principle we have stated herein before, a Court could take into consideration subsequent facts, event or happening which are relevant, and in the present case after expiry of about two decades if fresh local Commissioner was appointed to find out the condition of shop, and it found two big cracks on two walls of the disputed shop, it cannot be said consideration of such evidence to be illegal. On the merits it is submitted, one of the cracks is on the Dehori side which is in possession of the landlord. Even if this to be, this would make no difference for drawing any inference about the condition of the wall. There are always two sides of any wall, cracks on any side of the wall, if it weakens the wall, may not be on the side of such an occupant, it would make no difference. Even if the cracks on the wall are on the other side which is a passage, still as it constitutes the same wall as that of the shop would have the same result. If the cracks have weakened the wall, it would crumble not withstanding it is not on the side of the shop. This coupled with the condition of the roof which deteriorated as found by the local Commissioner would be a valid consideration to find whether the shop is unfit for human consumption. So far the submission that the appellant has filed a complaint against the landlord for causing damage to the roof, we have perused the FIR. Though FIR records allegations directly against the landlord but records no allegation of landlord damaging the roof.
473 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Next submission is based on the objection filed to the local Commissioner report. The objection is, the tenant was not allowed to go on the roof to which landlord has an access. If he was permitted he could have pointed out to the Commissioner that hole has been dug purposely and deliberately by the landlord. Further, the Commissioner remained closet in the room with the landlord for about half an hour. He sought this local Commissioner report be ignored and another local Commissioner be appointed. We do not find any error in the High Court judgment in not issuing another local Commissioner. The appellant merely sought to show that roof of the disputed shop was damaged by the landlord, to proof this how Commissioner would have been able to find this.
The question whether the roof was damaged by the landlord or was damaged because of the building being old and dilapidated is a question of fact, proof of it could only be, if at all, through leading evidence and not through a local Commissioner. A local Commissioner could only report the fact of existing condition of the building and not who did it. It was open for him, if appellant so desired for praying to the Court to grant time to lead evidence in this regard. Since court permitted, a local Commissioner to report, so it would have granted the prayers for leading evidence. Hence we do not find any of the objections raised by the appellant, have any merit. The High Court considered the said report, and there exists a hole on the roof which is not disputed. It further records, even if the same is ignored, there are big cracks found by the Commissioner on the beginning of the wall extending from top to more than middle, and another big crack on another wall. The report records the depth of the crack, not merely the length of the crack showing the bad condition of the two walls of the disputed shop. Mere length of crack by itself may not have foundation to hold its condition of structure of the shop to be bad but it would be, where the crack measures 2 x 7.5 depth in one wall on the upper side and 1.5 (illegible) on the lower side and another crack measuring 2 x 8 from the upper side and 2 x 7 from the lower side. This along with condition of roof, if was considered by the High Court to draw the inference of the condition of the shop, it cannot be said such finding is perverse or illegal which calls for interference by this Court. Once the said local Commissioners report was brought on the record, as part of evidence to show the subsequent event or condition of building, it was incumbent on the High Court to have considered it, which it rightly did and if in doing so an inference is drawn, that the disputed accommodation is not fit for human habitation it is not such which calls for interference. Normally, as revisional 474 OA No. 170/00961/2019 & Ors/CAT/BANGALORE court, it could not have embarked upon recording finding of facts but where any subsequent fact was legally brought on record, it could enter into and decide the question, which could inevitably include recording find of fact.
Lastly, the submission was that the case may be remitted back to the court for permitting the appellants to lead evidence to contradict, what is brought through the Commissioner report. We have examined this aspect also. Normally if parties so desire, in a case where fresh facts are brought on the record as a relevant subsequent event, the court grants such prayer. In the present case, we find that before the High Court, at no stage, the appellant made any such request. Even in this appeal before us, the appellant could not point any such ground been raised. It is not even pleaded nor raised any ground that the High Court refused such a request for leading any such evidence. In view of these facts in the present case we do not find any merit even of this last submission. In view of the finding recorded by us we record our conclusions to the aforesaid two questions raised in the appeals to the following effect:
(1) On the facts and circumstances of this case, where fresh evidence was permitted to be brought on the record, reversing of the finding of fact by the High Court, while exercising Revisional jurisdiction, cannot be said to be such that it acted beyond its jurisdiction vested to it under the law. (2) Once, court could bring on the record, subsequent fact, event or happening, which has direct bearing on the issues or relief claimed, on the facts and circumstances of this case, then the High Court committed no error of jurisdiction to permit the Commissioner report to be placed on the record and then on which to rely while exercising its revisional power under sub- section 5 of Section 15 of the aforesaid Act.
In view of the aforesaid findings recorded by us we do not find any merit in these appeals, which are accordingly dismissed with costs on the parties.
Lastly, learned counsel made request to grant substantial time to the appellant to vacate the premises in question as he has been in possession of this shop for a very long time, otherwise it would affect his business adversely. Looking to the facts and circumstances of this case we grant time to the appellant to vacate the premises in question by or before 31st December, 2001 subject to the usual undertaking to be filed within four weeks from today.
475 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
117. They also place reliance on the decision of the Hon'ble Apex Court in Sheshambal through LRs Vs. M/s Chelur Corporation Chelur Building and Others in Civil Appeal No. 565/2005 dated 17.02.2010, which we quote:
"IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO. 565 OF 2005 Seshambal (dead) Through L.Rs. ...Appellants Versus M/s Chelur Corporation Chelur Building & Ors. ...Respondents JUDGMENT T.S. THAKUR, J.
1. This appeal by Special Leave arises out of an order passed by the High Court of Kerala at Ernakulam whereby C.R.P. No.558 of 1994 has been dismissed and the orders passed by the Rent Controller and the Rent Control Appellate Authority dismissing the eviction petition filed against the tenant wife affirmed. In a nutshell, the facts giving rise to the controversy are as under:
2. Late Shri K. Sachindanda Iyer and his wife late Smt. A Sheshambal Sachindanda Iyer owners of the premises in dispute let out the same to respondent No.1 for a period of three years in terms of a lease dated 12th April, 1983. On the expiry of the lease period the owners filed RCP No.116 of 1986 before the Rent Controller at Ernakulam seeking eviction of the tenant-
occupant on the ground that they required the same for their bona fide personal occupation within the meaning of Section 11(3) of the Kerala Buildings (Lease and Rent Control Act), 1965. The prayer for eviction was opposed by the tenant, inter alia, on the ground that the owners did not require the demised premises 476 OA No. 170/00961/2019 & Ors/CAT/BANGALORE and that the tenant would find it difficult to shift its business to any other premises on account of non-availability of a suitable accommodation for being so. The Rent Controller eventually came to the conclusion that the owners had failed to establish their bona fide requirement of premises. The Rent Controller held that the owners had shifted their residence from Cochin and were living with their daughter and son-in-law who were running a nursing home in that city.
3. Aggrieved by the order passed by the Rent Controller, the owners appealed to the Appellate Authority who affirmed the decision taken by the Rent Controller holding that the owners were residing with their daughter and son-in-law at Ernakulam in a building owned by the owners. The Appellate Authority also found that the owners had a cottage at Kodaikanal and that being fairly old had no reason to shift back to Ernakulam in search of better medical facilities especially when their own son-in-law was running a nursing home at Coimbatore where such facilities were available to them. Absence of any medical evidence to show that the owners suffered from any illness was also cited as a ground for dismissal of the prayer for eviction.
4. Aggrieved by the orders passed by the Rent Controller and the Appellate Authority the owners brought up the matter before the High Court of Kerala in a revision with a view to have the concurrent findings recorded by the Courts below set aside. The High Court, as noted earlier, has refused to intervene in the matter and dismissed the revision petition. The High Court held that it was not expected to reappraise the evidence produced by the parties in the exercise of its revisional jurisdiction and that the limited question that fell for its consideration was whether the procedure followed by the Rent Controller and the Appellate Authority was illegal, irregular or improper. The High Court noted that the rent of the premises paid by the tenant had not been revised since the year 1973. The same was, therefore, enhanced to Rs.10,000/- p.m. w.e.f. 1.11.2003 onwards with liberty to the parties to approach the competent Court for fixation of fair rent for the demised premises. The present appeal, as seen earlier, calls in question the correctness of the above orders.
5. It is not in dispute that during the pendency of the revision petition before the High Court the landlord Shri K. Sachindanda Iyer passed away on 24th April, 1996 leaving behind his wife Smt. A. Sheshambal Sachindanda Iyer as the sole revision petitioner seeking eviction of the respondent- tenant. Consequent upon the dismissal of the revision petition the present appeal was 477 OA No. 170/00961/2019 & Ors/CAT/BANGALORE filed by Smt. A. Sheshambal Sachindanda Iyer alone who too passed away before this appeal could be heard for final disposal. IA No.7/2008 filed on 14th November, 2008 sought substitution of the legal representatives of the appellant on the basis of a Will left behind by the deceased according to which the property in question has to devolve upon the three daughters left behind by the deceased. It is common ground that two of the daughters are living in India one each at Coimbatore and Bihar the third daughter is settled in America.
6. The short question that was, in the above backdrop, argued by learned counsel for the parties at considerable length was whether the proceedings instituted by the deceased-owners of the demised property could be continued by the legal heirs left behind by them. Mr. K.V. Vishwanathan, learned senior counsel, appearing for the legal heirs of the deceased-appellant contended that it was permissible for the legal heirs to continue the present proceedings and seek eviction of the tenant on the basis of the requirement pleaded by the erstwhile owners in the eviction petition filed by them. The rights and obligations of the parties, argued Mr. Vishwanathan, get crystallized as on the date of the filing of the petition. Any subsequent development, according to the learned counsel, would be irrelevant to the maintainability or the continuance of the proceedings after the death of the original petitioners. Reliance in support of that submission was placed by the learned counsel upon the decisions of this Court in Shamshad Ahmad vs. Tilak Raj Bajaj (2008 (9) SCC 1), Maganlal Vs. Nanasaheb (2008 (13) SCC 758), Pratap Rai Tanwani Vs. Uttam Chand (2004 (8) SCC
490), Gaya Prasad Vs. Pradeep Srivastava (2001 (2) SCC 604), Kamleshwar Prasad Vs. Pradumanju Agarwal (1997 (4) SCC
413), Shakuntala Bai Vs. Narayan Das (2004 (5) SCC 772), G.C. Kapoor Vs. Nand Kumar Bhasin (2002 (1) SCC 610) and Shantilal Thakordas Vs. Chimanlal Maganlal Telwala (1976 (4) SCC 417).
7. On behalf of the respondent-tenants Mr. L. Nageswara Rao, learned senior counsel, placed heavy reliance on the decisions of this Court in Pasupuleti Venkateswarlu Vs. Motor and General Traders (1975 (1) SCC 770), Om Prakash Gupta Vs. Ranbir B. Goyal (2002 (2) SCC 256), Hasmat Rai Vs. Raghunath Prasad (1981 (3) SCC 103) and Baba Kashinath Bhinge Vs. Samast Lingayat Gavali (1994 Supp (3) SCC 698). It was argued by Mr. Rao that the legal position as to whether the Court could take note of the subsequent 478 OA No. 170/00961/2019 & Ors/CAT/BANGALORE developments stood settled by the above decisions which left no manner of doubt that all such developments as have an impact on the rights and obligations of the parties must be taken into consideration by the Court and the relief suitably moulded.
8. The eviction petition, as noted earlier, was filed in terms of Section 11(3) of the Kerala Buildings (Lease and Rent Control Act), 1965, which reads:
"Section 11(3): A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.
Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so; Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:
Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument: Provided further that if a landlord after obtaining an order to be put in possession transfer his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him."
9. It is not in dispute that in the eviction petition the owners had pleaded their own requirement for the premises to be occupied by them for residential as well as commercial purposes. The eviction petition was totally silent about the requirements of any member of the family of the owners- petitioners leave alone any 479 OA No. 170/00961/2019 & Ors/CAT/BANGALORE member of their family who was dependant upon them. That being so the parties went to trial before the Rent Controller on the basis of the case pleaded in the petition and limited to the requirement of the owners for their personal occupation. Neither before the Rent Controller nor before the Appellate Authority was it argued that the requirement in question was not only the requirement of the petitioner-owners of the premises but also the requirement of any other member of their family whether dependant upon them or otherwise. Not only that, even in the petition filed before this Court the requirement pleaded was that for the deceased-widowed owner of the demised premises and not of any member of her family. Super added to all this is the fact that the legal representatives who now claim to be the family members of the deceased are all married daughters of the deceased couple each one settled in their respective matrimonial homes in different cities and at different places. That none of them was dependant upon the deceased- petitioner is also a fact undisputed before us. Even otherwise in the social milieu to which we are accustomed, daughters happily married have their own families and commitments financial and otherwise. Such being the position we find it difficult to see how the legal representatives of the deceased- appellant can be allowed to set up a case which was never set up before the Courts below so as to bring forth a requirement that was never pleaded at any stage of the proceedings. Allowing the legal heirs to do so would amount to permitting them to introduce a case which is totally different from the one set up before the Rent Controller the Appellate Authority or even the High Court. The position may indeed have been differentiated if in the original petition the petitioner-owners had pleaded their own requirement and the requirement of any member of their family dependant upon them. In such a case the demise of the original petitioners or any one of them may have made little difference for the person for whose benefit and bona fide requirement the eviction was sought could pursue the case to prove and satisfy any such requirement.
10. Confronted with the above position Mr. Vishwanathan made in generous submission. He contended that the rights and obligations of the parties get crystalized at the time of institution of the suit so that any subsequent development is not only inconsequential but wholly irrelevant for determination of the case before this Court. Learned counsel sought to extend that principle to the case at hand in an attempt persuade us to shut out the subsequent event of the death of the original petitioners from consideration. We regret to say that we do not see any basis for the submission so vehemently urged before us by Mr. 480 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Vishwanathan. While it is true that the right to relief must be judged by reference to the date suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the Court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted. That proposition of law is, in our view, fairly settled by the decisions of this Court in Pasupuleti Venkateswarlu case (supra). Krishna Iyer J. (as His Lordship then was) has in his concurring judgment lucidly summed up legal position in the following words:
"....................If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed............."
11. To the same effect is the decision of this Court in Om Prakash Gupta's case (supra) where the Court declared that although the ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit 481 OA No. 170/00961/2019 & Ors/CAT/BANGALORE yet the Court has power to mould the relief in case the following three conditions are satisfied:
"........(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise......"
12. In Hasmat Rai's case (supra), this Court observed that if the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the court, including the appellate court, has to examine, evaluate and adjudicate upon the same.
13. To the same effect is the decision of this Court in Baba Kashinath Bhinge's case (supra) where relying upon the decision in Hasmat Rai's case (supra) this Court held that in a case of bona fide requirement it is necessary to establish that the landlord needs the premises and the need subsists till a decree is passed in his favour. In a case where such need is available at the time of the filing of the petition but becomes extinct by the time the matter attains finality in appeal for revision no decree will be justified. For that purpose the Court should take all the subsequent events into consideration and mould the relief accordingly. Following passage provides a complete answer to the question raised before us:
"Equally it is settled by this Court in series of judgments and a reference in this behalf would be sufficient by citing Hasmat Rai v. Raghu Nath Prasad that in a case of bona fide requirement, it is always necessary, till the decree of eviction is passed that the landlord should satisfy that the need is bona fide and the need subsists. In a case where the need is available at the time of filing the petition, but at the time of granting decree it may not continue to subsist, in that event, the decree for eviction could not be made. Similarly pending appeal or revision or writ petition, the need may become more acute. The court should take into account all the subsequent events to mould the relief. The High Court may not be justified in omitting to consider this aspect of 482 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the matter but that does not render the judgment illegal for the subsequent discussion we are going to make."
(emphasis supplied)
14. Reference may also be made to Ramesh Kumar Vs. Kesho Ram (1992 Supp (2) SCC 623) where Venkatachaliah, J. (as His Lordship then was) expressed a similar view in the following words:
"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a `cautious cognizance' of the subsequent changes of fact and law to mould the relief."
15. Similarly, in Maganlal's case (supra) all that this Court held was that if the litigation keeps extending and number of developments sprouting up during the long interregnum, the Court should adopt a pragmatic approach in the matter and determine whether or not the development pending finalization of the litigation is such as would completely non-suit the party concerned. This decision is, in our view, no authority for this proposition that subsequent developments having material impact on the rights and obligations of the parties can be ignored by a Court simply because such rights and obligations have to be determined by reference to the date on which the litigation was instituted.
16. The decision of this Court in Kedar Nath Agrawal (dead) and Anr. Vs. Dhanraji Devi (dead) by LRs. and Anr. (2004 (8) SCC
76) has reiterated the legal position after a detailed review of the case law on the subject. That was also a case where two applicants seeking eviction of the tenant had passed away during the pendency of the eviction petition and the question was whether the three married daughters left behind by the couple could continue with the same. This Court observed:
"31. In view of the settled legal position as also the decisions in Pasupuleti Venkateswarlu5 and Hasmat Rai1, in our opinion, the High Court was in error in not considering the subsequent event 483 OA No. 170/00961/2019 & Ors/CAT/BANGALORE of death of both the applicants. In our view, it was power as well as the duty of the High Court to consider the fact of death of the applicants during the pendency of the writ petition. Since it was the case of the tenant that all the three daughters got married and were staying with their in-laws, obviously, the said fact was relevant and material....."
17. The decisions of this Court in Pratap Rai Tanwani's case (supra), Gaya Prasad's case (supra), Kamleshwar Prasad's case (supra), Shakuntala Bai's case (supra), G.C. Kapoor's case (supra), and Shantilal Thakordas Vs. Chimanlal Maganlal Telwala (1976 (4) SCC 417), Pukhraj Jain Vs. Padma Kashypa (1990 (2) SCC 431) do not, in our opinion, lend any support to the proposition that subsequent developments cannot be noticed by the Court especially when such developments have an impact on the right of a party to the relief prayed for.
18. We may in particular refer to the decision of this Court in Shantilal Thakordas's case (supra) in which this Court had overruled the earlier decision rendered in Phool Rani & Ors. Vs. Naubat Rai Ahluwalia (1973 (1) SCC 688) and held that the law permitted the eviction of the tenant for the requirement of the landlord for occupation of the landlord as residence for himself and members of his family and that such a requirement was both of the landlord and the members of his family so that upon the death of this landlord the right to sue survived to the members of the family of the deceased. That is not the position in the instant case. As noticed earlier, the requirement pleaded in the eviction petition by the original petitioners was their own personal requirement and not the requirement of the members of their family whether dependant or otherwise. Indeed if the deceased landlords had any dependant member of the family we may have even in the absence of a pleading assumed that the requirement pleaded extended also to the dependant member of their family. That unfortunately, for the appellants is neither the case set up nor the position on facts. The deceased couple did not have any dependant member of the family for whose benefit they could have sought eviction on the ground that she required the premises for personal occupation.
19. In the light of what we have stated above, we have no hesitation in holding that on the death of the petitioners in the original eviction petition their right to seek eviction on the ground of personal requirement for the demised premises became 484 OA No. 170/00961/2019 & Ors/CAT/BANGALORE extinct and no order could on the basis of any such requirement be passed at this point of time.
20. There is one other aspect to which we must advert at this stage. The High Court had, while disposing of the revision petition filed before it, come to the conclusion that the demised premises is large and located in a popular commercial area of the city of Cochin. It has found that the rent for the premises was very low and had not been revised since the year 1973. The High Court accordingly revised the rent to Rs.10,000/- per month payable w.e.f. 1.11.2003 onwards leaving it open to the parties to get the fair rent determined for the demised premises.
21. During the pendency of this appeal, the appellants had filed an application seeking a direction against the respondent for payment of rent @ Rs.50,000/- per month. The application supported by an affidavit, inter-alia, alleges that the market rent of the premises in question was not less than Rs.50,000/- per month as in September 2005 when the application was filed. A Valuation Certificate issued by Shri K. Radhakrishnan Nair, Chartered Engineer & Approved Valuer, is also enclosed with the application, according to which the market value of the plot in question was not less than Rs.7,00,000/- per cent and the current market rent for the building not less than Rs.8/- per square feet. As per the lease deed entered between the deceased owners and the respondents, the premises in question is constructed over an area measuring about 20 cents. The covered area is said to be 5000 sq. ft. or so. In the circumstances while the High Court was justified in tentatively revising the rent for the premises, the revision was not, in our opinion, adequate. Keeping in view the totality of the circumstances, we are of the view that instead of Rs.10,000/- determined by the High Court, the respondents shall pay Rs.15,000/- per month towards rent w.e.f. 1.11.2003. The same shall stand revised to Rs.25,000/- per month w.e.f. 1.1.2009. The differential amount thus payable shall be deposited by the respondents before the Rent Controller within six months from today whereupon the Rent Controller shall take steps to disburse the same to the appellants, the current owners of the premises. Needless to say that the revision ordered by us is also tentative and shall not prevent the parties from seeking determination of the fair rent for the premises by instituting proceedings before the competent Court/authority in accordance with law.
22. With the above modification, this appeal is disposed of leaving the parties to bear their own costs."
485 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
118. The fulcrum of these cases is that the subsequent events will mould the reliefs in any litigation and therefore the applicants would claim that in view of them having become officers of the Indian Administrative Service then the inclusive clause in Section 14 which would mandate that cases of Indian Administrative Service officers would only be heard by the Central Administrative Tribunal and the exclusionary clause in Section 15 of the Administrative Tribunals Act which says that no case of an Indian Administrative Service officer can be heard by the Karnataka Administrative Tribunal has to be read harmoniously and interpreted harmoniously. They would say that, since they have already become Indian Administrative Service officers, the benefits and responsibilities attached to that position became paramount for them and the direction 6 of the order has to be read in harmony with that interpretation as, when the direction No. 6 was passed, all of them were KAS officers and therefore coming under the ambit of the Karnataka Administrative Tribunal.Due to efflux of time and positive selection of merit, they became Indian Administrative Service officers and which right of theirs was upheld by the Hon'ble Apex Court. Therefore, the result as mentioned in the SLP order of the Hon'ble Apex Court pertains to only the generality of direction given by the Hon'ble High Court in the 6 directions given. They would say, quoting from the KPSC, that the first direction was obliterated by passage of law by the Karnataka Legislature. The second and third 486 OA No. 170/00961/2019 & Ors/CAT/BANGALORE directions given seems to be in conflict with each other. Relating to the direction no. 6 it only pertains to "providing them a fora for adjudication of their individual issues as these individual issues were not handled by the second instance Bench at all." Therefore, the second instance judgment is not a conclusive one as it laid open the parameters of litigation for further adjudication by a competent body. It would be tantamounting to an order passed in a preliminary decree which necessitates the passing of a final decree after further verification was done. They would further say that in this case further elucidation and expansion of parameters would be required as the individual situation of none of the applicants were gone into by the second instance Court. Therefore, they would claim that in view of the law declared by the Hon'ble Apex Court and the nature in which the direction No. 6 was given it was only intended to provide a fora for adjudication and the correct fora, therefore, is the Central Administrative Tribunal.
119. The learned counsel for the applicants point out that, in fact, this OA was reserved for orders, but the learned counsel for the impleading respondents requested for some time to file an argument note. Even though reserved for orders, this request of Shri Narayan Bhat was allowed as the Courts in such serious issues must grant full opportunity to the counsels to present their case.
487 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
120. They refer to para 33 of the WP (C) 50238/2019 which says "The matters which were listed on 22.10.2019 were heard and are now adjourned to 31.10.2019. The interim orders were not vacated."
121. They would say that some suppression of fact is material here as the impleading respondents suppressed the fact that the matter was reserved for orders and only on the request of Shri Narayan Bhat that he was given an additional chance of filing another argument note. Shri Narayan Bhat could not answer this point. However in many cases counsels are at the mercy of their clients or those who sponsor them.
So, we do not want to dwell on this point.
122. Thereafter the matter was heard and we passed the following daily orders as shown below:
"Sl. No.SL1-SL5 KBS(MJ)/CVS(MA) 15.04.2019 Issue notice by dasti to the respondents. Applicant to take out notice and have it served on the respondents within 7 days next and produce appropriate evidence for having done so. They will also give a direct copy to the Secretary, KPSC, the learned Advocate General of Karnataka and Shri Sathyanarayana Singh, learned government advocate of Karnataka. In the meanwhile, Annexure-A5 so far as it relates to the applicant will remain stayed.
Post the matter for further hearing on 25.04.2019."
"S.No. 32-38 KBS(MJ)/CVS(MA) 25.04.2019 488 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Shri Nagaprasanna reads out a portion from the judgment of the Hon'ble High Court which indicates that since the High Court had not considered the individual grievances of the persons and had relied on the methodology apparently suggested by the High Power Committee eventhough it may not have been approved by the KPSC, a liberty was granted to all those persons who have aggrieved by the proceedings to be taken by the KPSC that they can challenge those issues before the Karnataka Administrative Tribunal as apparently at that point of time they were in the jurisdiction of that Tribunal. Now because of efflux of time atleast some of them have been promoted and they became IAS officers. Now their jurisdiction comes under the Central Administrative Tribunal. Therefore, we have put a specific question to the Learned Govt. Advocate Shri Satyanarayana Singh that if that order of the Hon'ble High Court is correct, would it not be maintainable or not. He was gracious enough to concede that it is maintainable. We accept his views and therefore it is stated to be maintainable. He submits that he can file reply before 06.06.2019.
Shri Nagaprasanna submits that on 18.06.2019 he can file rejoinder. Shri K.M.Prakash undertakes to appear for KPSC. He is also permitted to file his reply. From the proceedings of the Hon'ble High Court, it appears that KPSC had filed an affidavit in the Court but not pressed it. He will also mention why it was not pressed at that point of time.
Post the matter for hearing and disposal on 19.06.2019.
Interim order is extended till the next date."
"96 to 102 DR.KBS(MJ)/CVS(MA) 19.06.2019 Learned counsel for both sides are present. Learned counsel for KPSC seeks some more time to file reply. Allowed. 2 more weeks for reply. 2 weeks for rejoinder. Post the matter on 30.7.2019.
Interim order extended till then."
"S.No. 38-44 KBS(MJ)/CVS(MA) 30.07.2019 489 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Learned counsel for both parties are present. Reply filed. 2 weeks for rejoinder.
Post for hearing on 05.09.2019 Interim order to continue until further orders."
"20 to 26 DR.KBS(MJ)/CVS(MA) 5.9.2019 Learned counsel for both sides are present. Reply filed. 2 weeks for rejoinder. Post the matter on 10.10.2019 for hearing & disposal."
"Sl. No.21-27&33-36 KBS(MJ)/CVS(MA) 10.10.2019 MA No. 643/2019 for amendment and other similar MAs are allowed. Amended copy will be served on the respondents. MA No. 625/2019 for impleadment and other similar MAs are allowed. They seek one week's time to file reply. Allowed. Application for vacation of interim order will be taken up and disposed on the next date. All the cases will be heard together. Post for disposal on 16.10.2019."
"Sl. No.17-23 KBS(MJ)/CVS(MA) 16.10.2019 Learned counsel for all the parties are present. The impleading applicants file their reply. KPSC has already filed their reply. Let them also produce a copy of the clarificatory application filed by the Secretary at that point of time when the matter was being taken up in the Hon'ble High Court. Post for hearing and disposal on 22.10.2019."
"40 to 46, 59 to 62 DR.KBS(MJ)/CVS(MA) 22.10.2019 Heard Learned counsel for both sides. We also direct all the parties to file written argument notes but with reference to each of the candidates. KPSC will file reply to that in reference to each candidate. Shri 490 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Narayan Bhat is allowed to file reply to that in reference to each candidate.
By common consent we have taken OA.961 as the designated leading case and all arguments will be addressed in relation to that.
Let applicant file written argument note in next 2 days time. Let others file within next 3 days time. We will grant one or 2 days time to file rejoinder to that written argument note. Let all the parties file written argument note along with the rulings on which they rely upon with significant portion marked with marker ink. Post on 31.10.2019 for hearing and disposal."
"Sl. No.17-21,24,25 & 27-30 KBS(MJ)/CVS(MA) 31.10.2019 Learned counsel for both parties are present.
Heard. Reserved for orders. All the learned counsels are requested to file written argument note based on the discussions made in the Court. They may also produce whatever rulings they want to produce along with significant portions marked with a marker ink. But still, post the matter for further elucidation, which we may have.
In the meanwhile, applicant to produce the full Fact Finding Committee report.Post on 08.11.2019."Sl.No. 20 & 30
KBS(MJ)/CVS(MA) 08.11.2019 Smt Bhanu, learned counsel for R-4 submits that the High Court had stayed the continuance of this matter, which was reserved for Judgment. On the last posting on 22.10.2019 the following order was passed:
" Heard learned counsel for both sides. We also direct all the parties to file written argument notes but with reference to each of the candidates. KPSC will file reply to that in reference to each candidates. Shri Narayan Bhat is allowed to file reply to that in reference to each candidate.
491 OA No. 170/00961/2019 & Ors/CAT/BANGALORE By common consent, we have taken OA.961 as the designated leading case and all arguments will be addressed in relation to that.
Let applicant file written argument note in next 2 days time. Let others file within next 3 days time. We will grant one or 2 days time to file rejoinder to that written argument note. Let all the parties file written argument note along with the ruling on which they rely upon with significant portion marked with marker ink. Post on 31.10.2019 for hearing and disposal."
Thereafter the matter was taken up on 31.10.2019 and we passed the following order:
"Learned counsel for both parties are present. Heard.Reserved for orders. All the learned counsels are requested to file written argument note based on the discussions made in the Court. They may also produce whatever rulings they want to produce along with significant portions marked with a marker ink. But still, post the matter for further elucidation, which we may have.
In the meanwhile, applicant to produce the full Fact Finding Committee report.Post on 08.11.2019."
But now it is submitted at the bar by SmtBhanu, that W.P.No.50238/2019 is filed and the High Court issued rule nisi. Therefore, let the matter remain as it is. Post the matter for further elucidation on 27.11.2019."
"Sl. No.54 KBS(MJ)/CVS(MA) 27.11.2019 All counsels agree that the matter can be taken up on 10.12.2019. Post for being spoken to on 10.12.2019.
Registry to show the name of Shri Putte Gowda as counsel for the applicant."
"KBS(MJ)/CVS(MA) 02.12.2019 OA 437-441/2019, 448-449/2019 & 961-964/2019 As the Hon'ble High Court has directed disposal of the matters by 10th of December, 2019, all these cases are advanced and posted on 05.12.2019."
"05.12.2019 ORDER OF THE TRIBUNAL (HON'BLE DR. K.B. SURESH, MEMBER (J) We heard the Additional Advocate General first of all and we had postulated a few questions to him:
492 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Question) Whether following the selection made in 1998 by the KPSC, has the Government issued any directions to the KPSC to change their procedure and, if so, in what way? (This is in relation to the statement made by the contesting party respondents).
Ans. The Additional Advocate General submits that he has to get instructions on this matter.
Question) Is the KPSC following the same pattern of evaluation which is followed by the UPSC or otherwise?
Ans. The Additional Advocate General submits that he has to get instructions on this matter.
Question) Has anyone to your knowledge made any personal allegations against any of the applicants?
Ans. The Additional Advocate General does not know. Question) Under Article 311 of the Constitution of India, if any government servant has to be diminished in service, he has to be told the reason for it. Is it not so?
Ans. Strictly yes.
Question) Have you given any notice to the applicants pointing out their individual infractions in any manner? Ans. The Additional Advocate General submits that he has to get instructions on this matter.
We heard the learned Additional Advocate General. We grant him permission to file a written argument note within tomorrow.
2. We have put a specific question to the learned counsel appearing for the KPSC:
Question) What is the pattern of selection and evaluation you have followed in 1998 which you have changed in the subsequent years and in what way?
Ans. The learned counsel takes one day's time to file written statement on this.
Question) After you have filed one illustrative memo before the Hon'ble High Court, you had filed an explanatory statement by Shri Harish Gowda, the then Secretary of the KPSC. Where is the document?
At this point of time, we decide that we need to have the assistance of the current Secretary of the KPSC Smt Sathyavathi. Let her be present tomorrow.
493 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Question) After the selections of 1998, 1999 and 2000 were held, is there any fundamental changes that you have made to your selection process?
Ans. The learned counsel takes one day's time to file a written statement on this.
Question) In what all ways does your selection methodology differ from that of the UPSC?
To this question also the learned counsel takes one day's time to reply by a written argument note. Allowed.
Question) Have you pointed out to any of the applicants their individual infractions in any way?
To this question also the learned counsel seeks some more time to answer. We grant him one day's time to file a written argument note on this.
At this point of time the learned counsel for the KPSC would hasten to add that they have only just followed the direction given in the PIL by the Hon'ble High Court.
Question) Have you ignored the earlier order passed by Hon'ble Justice Raveendran?
Ans. He would say that they had also complied with the order of Hon'ble Justice Raveendran and Justice Manjunath and moderation/scaling down was conducted and orders issued in 2006. But then when the PIL order was passed he would say that there is in fact no deviation in the results of both exercises. He would also say that they have apparently adopted the same method. He would further say that the Hon'ble High Court had not clarified as to whether the first Fact Finding Committee or the second Fact Finding Committee has to be given credence. Question) What is the procedure you have followed? Is there any rule which will enable you to follow any specific procedure? Ans. It will be furnished tomorrow.
Question) Is there anything you want to tell us? Ans. The learned counsel would say that they have earlier followed the directions issued by Hon'ble Justice Raveendran and Hon'ble Justice Manjunath and issued an order in 2006 and thereafter when in 2016 a different order came through the orders of Justice Kumar and Justice Veerappa, they had followed that also.
Question) In what way these two orders fundamentally differed?
494 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Ans. The learned counsel takes one day's time to file an additional written argument note to answer this question. He does not want to add anything more.
3. Shri Satish, learned counsel for the applicant, would say that the Central Administrative Tribunal alone has the jurisdiction as rightly or wrongly as under Section 14 of the Administrative Tribunals Act a person who is in the Indian Administrative Service can only approach the Central Administrative Tribunal and no other forum. He also files a list of citations quoting several judgments which we will look into. He is also permitted to file a written argument note.
4. Shri Narayan Bhat, learned counsel for the contesting respondents, first of all produces the order of the Hon'ble High Court. It is taken on record.
Question) Have you raised an allegation of individual infractions against any of the applicants anywhere?
Ans. Shri Narayan Bhat submits on this regard that as of now he has no data about individual situations of any of the applicants but he would say that data might be available either with the KPSC or the State Government. He says that he had made allegations against KPSC that they are sailing with the applicants.
Question) In your pleadings you have raised a question that the wrong reservation policies have resulted in this mess. Can you please explain it?
Ans. This is contained in the order of the Hon'ble High Court of Karnataka. In direction 1, 2 & 3 it has been clearly mentioned. The learned counsel very graciously submits that when the list was web hosted pursuant to the order, four people were not in the list. 1) Shri Shivashankara, applicant in OA No. 961/2019, 2) Smt. Meena Nagaraj, applicant in OA No. 962/2019 (both are General Merit candidates), 3) Shri R.S. Peddappaiah, applicant in OA no. 963/2019 (ST), and 4) Shri Akram Pasha, applicant in OA No. 964/2019 (Category 2B).
5. At this point of time, Ms. Suvarna, learned counsel, would submit that Shri Shivashankara was actually in the list of Category 3A but then because of his high merit he was put in general merit. At this point of time, learned counsel for the KPSC would say that not only because of his merit but also because that he had not furnished valid documentation regarding his Category 3A status that he was put in general merit.
495 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
6. At this point of time, Shri Narayan Bhat would elucidate that in relation to the direction No. 6 of the Hon'ble High Court it stipulates that since the Hon'ble High Court had not passed any orders on individual predicaments such matters shall be adjudicated by the Karnataka Administrative Tribunal or any other competent authority. He would further say that this Tribunal may not have the vested jurisdiction to determine the issue. Question) Before the list was web hosted, were any of them informed of the individual infractions against any one of them? Ans. They were given opportunity to file objections to this web hosting.
Question) Therefore, this web hosting is not final. Ans. The web hosting was not final.
Question) But what is final is that the direction given in direction No. 6 granting opportunity of approaching the competent forum? Ans. Shri Narayan Bhat would say at this juncture everyone was given an opportunity to object.
Question) Has any finding been made by the Court on any of these objections as these objections were filed in the Court? Ans. Shri Narayan Bhat would say that, as the Hon'ble High Court had approved the objections, the case filed by the applicants in this Tribunal or even the Karnataka Administrative Tribunal is thus barred as a finality had been achieved by the approval of the objection filed by the concerned respondents in that matter, who are the applicants herein.
Shri Narayan Bhat would say at this point of time that 7 of the applicants herein had filed SLP No. 29245/2016 as either the petitioners or respondents and this SLP has been disposed off, the finality given to the objections filed earlier to that would be concretised and it is thus concretized. Then the Review Petition and the Curative Petition were also filed which were also dismissed.
7. At this point of time, we explain to Shri Narayan Bhat that there seems to be a contradiction in terms. If the Hon'ble High Court in PIL had approved the objection filed by the contesting parties, then the High Court could not have passed the order in the PIL in the fashion it has been fashioned. So, when it was pointed out to him, the learned counsel would say that it is the order of the Hon'ble High Court. It is true. He does not have to be responsible for any of the order passed by any of the adjudicating 496 OA No. 170/00961/2019 & Ors/CAT/BANGALORE authorities but then we wanted a clarification on this point. It behoves them that if the objections of these contesting parties were heard and approved by the Hon'ble High Court at that point of time, there was no reason for the genesis of the order in which it has been fashioned. However, we will deal with this matter after we allow Shri Narayan Bhat to file a written argument note and hear him further tomorrow.
8. At this point of time the learned counsel refers to Annexure- R4-VI. He would say that this is a clarification order dated 05.07.2019 which has resulted in Annexure-R8, which is now impugned.
9. At this point of time Senior Advocate Shri Ponnanna would submit that the application by the KPSC was rejected. Therefore, we think that a contradiction in terms remains as it is and we would permit the learned counsel to file a written argument note which will explain all these matters once again.
10. At this point of time Shri Narayan Bhat would like to formulate certain issues to be answered:
1) This Tribunal may not have jurisdiction.
2) Shri Narayan Bhat submits that, as what happened in the SLP when the interim order was granted and later the SLP dismissed, the interim order merges into the final order. In any proceedings under Article 226 and its constituents, there is no question of any merger because if suppose a Civil Court passes an interim prohibitory injunction and later on finds reason to dismiss the suit, the earlier interim order will not merge as merger indicates a system of harmonizing both these orders. Shri Narayan Bhat would also say that in this case it can be presumed that the earlier interim order is vacated and the effect of the order already given is also erased out. That according to us may not be in terms of the law on the subject at present. The law on the subject is that, once an interim order is granted, till it is vacated that interim order remains. That is why at the end of each judgment it is stipulated interim order if granted is vacated or made absolute or whatever is the situation. So the interim order granted will remain in force unless the Court passes a final order or passes any further order either relegating it to the trash bin or upholding it for the interregnum.
11. At this point of time Shri Narayan Bhat wants to place few judgments before us. We accept it with gratitude. First judgment is (2009) 3 SCC Page 250 paragraph 28.
497 OA No. 170/00961/2019 & Ors/CAT/BANGALORE We think that after discussion of this judgment that it is cited out of context as this judgment deals with a situation wherein the Division Bench having taken umbrage to the fact that the State Government had not filed an appeal against the interim order and therefore held that there is a dilution in facts. That situation may not be applicable herein.
12. Thereafter he relies on (2010) 1 SCC Page 417, paragraph
17. At this point of time Shri Narayan Bhat would say that by virtue of merit the contesting respondents stand higher than the applicants. We will permit the applicants to answer this question postulated by the learned counsel which is of course a pertinent point to be looked into.
13. He relies on (2003) 8 SCC Page 648 based on a decision in Rodger v. Comptoir D' Escompte de Paris which we quote:
"One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors, and when the expression, 'the act of the court' is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case."
We feel that a very pertinent point had been raised by the learned counsel for the contesting respondents. Question) Therefore, why and how do you say that you rank higher?
Ans. He would say that in 2006 also 7 of the contesting parties are higher to the applicants. This we will leave it to be explained by the learned counsel for the applicants in their written argument note. This is a question which they need to answer.
14. Based on the decision of the Hon'ble Apex Court in (2007) 1 SCC 309, the learned counsel on an explanation of paragraph 15, 16, 17 and 28 submits that as happened in this case also there were two conflicting judgments but then after having obtained an opportunity of being heard in the second judgment it cannot be said that the applicant herein has acquired a right to be heard again. But then at this point of time we need to have one more elucidation from the learned counsel Shri Narayan Bhat.
Question) After Hon'ble Justice Raveendran's judgment, whether it be by form of a PIL or any other, can the Hon'ble High Court 498 OA No. 170/00961/2019 & Ors/CAT/BANGALORE judgment in the earlier case could have been questioned as it would be normally be barred by res judicata and constructive res judicata?
Ans. The learned counsel submits that if a fraud surfaces then the second Court obtains a responsibility to judicially interdict.
15. Therefore, one more question to the learned counsel. Question) What was the fraud which emanated from Hon'ble Justice Raveendran's judgment?
Ans. The learned counsel would clearly submit that the fraud erupted not from the judgment of the Hon'ble High Court which was passed earlier by Hon'ble Justice Raveendran and Hon'ble Justice Manjunath but by the subsequent conduct of the KPSC. He would further say that the KPSC took sides and made an effort to protect every one of the applicants. So also the Karnataka Government supported this list and concretized the issue. This we will leave to both the learned counsels to answer in their written argument note tomorrow.
16. He relies on (1996) 4 SCC 127. He relies on paragraph 13 and 19. The learned counsel submits that once a party obtains a benefit under an interim order if subsequently the SLP is rejected then whatever benefit they had obtained in the interregnum is automatically erased off. This also we will leave it to the learned counsel to answer at the time of hearing.
17. At this point of time Shri Narayan Bhat explains further that if the applicants have incorrectly obtained a position in the Indian Administrative Service then the platform on which they obtained this position will fall down once the SLP is rejected and then they cannot approach the Central Administrative Tribunal. We therefore queried him as to which forum they should approach. But he declined to answer it. He would further say that it is for the learned advocate appearing for them to decide which forum they should approach.
Question) Did you not file OA No. 87/2017?
Ans. Shri Narayan Bhat is not in a position to answer this question. We will permit him to explain it in a written argument note.
18. We heard senior counsel Shri Ponnanna also in great detail. We permit him also to file a written argument note by tomorrow morning.
499 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
19. Therefore, tomorrow we need the assistance of the Secretary of the KPSC. Let all the counsels file a detailed argument note with further rulings on which they rely. Let the learned counsels cover both the elements in their written argument notes. We will permit the learned counsels to elucidate on the written argument notes also tomorrow.
20. Reserved for orders. Post for further elucidation at the top of the list on 06.12.2019.
21. A copy of this order to be given to all the parties immediately."
Sl.No.1-11 KBS(MJ)/CVS(MA) 06.12.2019 Learned counsel for both parties are present. ShriRajagopal, Sr. counsel files written argument note today.
We have asked some questions to Smt. Sathyavathi.G, Secretary, KPSC and her replies to that as below:
Ques.1. You have not given any imputations against individual applicants and obtained a reply from them before taking a decision?
Ans: No. Ques.2. The answer you have made in your statement that relating to documentation and all that, you have asked questions during the personal interview?
Ans: The documentation verification is done. Ques.3. Have you found at any time any fraud committed by any of these applicants?
Ans: I am here only for the last 4 months. Prior to that my predecessors had given affidavits before the Court, which I have read.
Ques.4. By your own experience have you found anything?
At this point of time ShriRajagopal, Sr. counsel raises an objection that under the Administrative Tribunal's Act, the Tribunal can only ask questions from the learned counsel and no clarification can be sought by the court from the parties directly.
It is covered by Section 22 relating to procedures and powers of Tribunal. ShriRajagopal is obviously not correct. The Hon'ble Apex Court have held in T.Jayakumar vs. Gopu's case, the Tribunal has power to examine whether the reason assigned 500 OA No. 170/00961/2019 & Ors/CAT/BANGALORE by selection, holding candidates not eligible for selection was valid, unreasonable and arbitrary. Therefore, the objection raised by ShriRajagopal is rejected.
In view of the stand taken, we need not continue with the assistance of the Secretary, KPSC. She is discharged.
Heard the matter for a while .For the rest of the arguments post on 09.12.2019."
"Sl. No.1-11 KBS(MJ) 09.12.2019 Learned counsel for all the parties are present. Post on 11.12.2019."
"Sl. No.1-11 KBS(MJ)/CVS(MA) 11.12.2019 The State Government files a written submission on the questions raised. We heard the matter. We wanted to ask Senior counsel Shri Rajagopal certain things.
1) If you had been following the same matrix of procedure from 1975 to 2004, what is the exact infraction you have found in it and if you have found anything in it why did not you rescind the whole of the selection during this period?
Shri Narayan Bhat to answer what is fraud. Shri Narayan Bhat replies that fraud means illegality, bias and malafides.
We heard para 212 of the judgment which we quote.
"Under these circumstances, we are of the view that the KPSC has not taken into consideration the marks secured in 3rd valuation in respect of these 91 answer scripts and have not given effect to the order of the High Court to the same in the preparation of the merit list. It is pertinent to point out at this stage that, the Court summoned all these 91 answer scripts. It was kept in the open Court for inspection by the learned Counsel appearing for the parties as well as parties by themselves and it is only after giving such an opportunity, when nobody pointed out any illegality or irregularity in the said valuation, we have proceeded to pass this order. Even now, if there is any irregularity or illegality in any individual case and if by giving effect to the third valuation, if their 501 OA No. 170/00961/2019 & Ors/CAT/BANGALORE position is going to be affected, they are at liberty to approach the Karnataka Administrative Tribunal for redressal of their grievances."
Senior counsel Shri Rajagopal submits that in fact following the matter now pending as the applicants herein had filed a contempt application on the ground that instead of 91 answer scripts to be revaluated 119 were made and for which a contempt application is also pending before the Hon'ble High Court. Shri Rajagopal would submit that they have already prepared a memo in relation to it which they want us to take note of but would require 2 days time for it. In order for the matter to be more clarified as the Hon'ble High Court is in seisin of the matter, we will have the matter taken up on 17.12.2019 for hearing and disposal.
Learned counsel Shri Narayan Bhat requests that whether 91 or 119, continuation of interim order may not be justified. We will therefore look into this matter also on 17.12.2019. Learned counsel Shri Sathyanarayana Singh also to produce the connected files, any undertaking the applicants have given and the effect thereof. Let him explain this also on 17.12.2019.
Post on 17.12.2019 for hearing and disposal."
"Sl. No.1-11 KBS(MJ)/CVS(MA) 17.12.2019 Shri K.M. Prakash, learned counsel for the KPSC, submits that a connected contempt matter in CCC No. 1765/2019, 1785/2019, and 1790/2019 is now posted for hearing and orders on 19.12.2019. Therefore, post the matter for disposal on 20.12.2019."
123. But, now that a full hearing is afforded to all except for the production of an alleged undertaking the applicants have given to the effect that their promotion is subject to the result of the litigation.
Nobody, including the impleading respondents or the State 502 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Government is sure whether any such undertakings were given. A doubt is raised at the bar that, if at all, it might be given to the UPSC.
124. So, we will take an adverse presumption that they might have given such an undertaking. Then what is its effect?
125. The only effect is that the litigation as blessed by the direction No. 6 of the second instance High Court judgment and the effect of the first instance High Court judgment which attained finality in the Curative Petition stage and the decision of the Hon'ble Apex Court in Sanjay Singh and Another Vs. U.P. Public Service Commission and Another reported in 2007 (3) SCC 720 is still continuing and will continue till legitimate conclusion. Therefore if any such undertaking exists, it will have effect only on the conclusion of the litigation.
126. The main issues in this case relate to the maintainability of the application before the CAT, the continuation of the interim order granted staying the notifications dtd.25.1.2019 and 22.8.2019 of the KPSC and further process in this case. There is no doubt that the applicants are IAS officers and therefore by virtue of Section-14(1), the CAT will only have jurisdiction over their recruitment and all matters concerning recruitment. Further as noted in Section-15(4) of Administrative Tribunal's Act 1985, the KAT of the State shall not have the jurisdiction, powers and the authority with respect to any of the matters in relation to which such jurisdiction, powers and authority of 503 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the CAT extend or is exercisable. Therefore, any diminishment of the services of the applicants as IAS officers will definitely have to be agitated before the CAT and there is no doubt on the jurisdiction of the CAT in this regard. However, the point to be noted at this juncture is that based on a series of litigations, certain processes have been commenced by KPSC in obedience to the orders of the Hon'ble High Court of Karnataka and the Hon'ble Apex Court. This has been going on since the year 2002 and due to efflux of time, the applicants have got to the situation of getting promoted to the IAS. Since the SLP.No.29245/2016 was pending in the Hon'ble Apex Court arising out of the impugned final judgment and order dtd.21.6.2006 in WP.No.27674/2012 passed by the Hon'ble High Court of Karnataka, the Hon'ble Apex Court in its order dtd.27.11.2017 ordered as follows:
"Any promotion/appointment made in the meantime, shall be subject to the outcome of the present Special Leave Petition, and the same shall be intimated to the persons promoted/appointed, so that he/she cannot claim any kind of equity."
The SLPs against the order of the Hon'ble High Court was dismissed on 11.4.2018 and the review petition was also dismissed on 27.2.2019.
In other words, the promotion to the IAS which was granted to the applicants being subject to the outcome of the Special Leave Petitions, any further action pursuant to the dismissal of the Special Leave Petition will have to be adjudicated by the appropriate forum. In our opinion, the two notifications issued by the KPSC dtd.25.1.2019 and 504 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 22.8.2019 relate to the selection of the candidates to the State Services of Karnataka. The two notifications therefore will squarely come under the ambit of the Karnataka Administrative Tribunal. There is no whisper anywhere relating to the further process at present on the diminishment of the applicants' service in the Indian Administrative Service. Any relative changes in the merit order, change of service etc., pursuant to the said notifications of KPSC will have to be gone into in detail in case of any individual grievances which the applicants may have. The right of the applicant has also been clearly spelt out in the order No.6 of the Hon'ble High Court of Karnataka in its order dtd.21.6.2016 precisely because the individual issues had not been dealt with in the second round of litigation before the Hon'ble High Court and therefore these individuals have been given an opportunity for defending themselves. We cannot take a plea that since no specific infraction is alleged against any of the applicants and no show cause notice etc., have been given to them providing them an opportunity, we can interfere in the proceedings being undertaken by the KPSC which is strictly relating to the State services of the State of Karnataka. But at the same time, since the applicant belongs to an All India Service, any action to be taken against them will have to necessarily follow the procedure relating to their service as per the All India Service Rules and adequate opportunity has to be given under Article 311. At this juncture, there appears to be no reason for us to interfere in view of the 505 OA No. 170/00961/2019 & Ors/CAT/BANGALORE decision we have taken even though technically it is possible that subsequent to the redrawal of the selection list by the KPSC, some of the applicants may not be in the zone of consideration for the purpose of promotion to the IAS. However, that stage has not yet been reached and therefore there is no need for us to interfere at this juncture.
127. Therefore, on cumulative conspectus we hold as below:
1) We hold that only the Central Administrative Tribunal can have jurisdiction in the matter relating to the service conditions and recruitment into All India Services like the IAS on a harmonious reading of Section 14 and 15 of the Administrative Tribunals Act
(a)All the further consequences, which may befall an I.A.S. officer are to be guided by the UPSC and the Union government under the statutory formations.
To illustrate, if a doubt arises as to the date of birth of an IAS officer, after he has become an IAS officer, such matters can only be dealt with by the Central Administrative Tribunal.
(b) At this juncture, even though the relative position of the applicant has been modified in the selection list notified by the KPSC on 25.1.2019 and 22.8.2019, it is not clear 506 OA No. 170/00961/2019 & Ors/CAT/BANGALORE whether his selection to the IAS will also be affected. At any rate, the Govt. of Karnataka and the Union Government will have to be guided by the well laid out procedures under the AIS Service Rules and the Constitution of India relating to any action contemplated against any individuals who are members of an All India Service. We would like to particularly reiterate the following points:
(i)There are no individual allegations against any of the applicants.
(ii)Some of them had secured even more marks in the second evaluation.
(iii)The KPSC had been following the same pattern from 1975 to 2005 and only during the years of 1998, 1999 and 2004 such complaints were seen to be generated.
(iv)The allegations seem to be based on the patterns of ratio and reservations, which is actually covered by at least 100 Hon'ble Apex Court judgments.
(v) None of the applicants were ever told what infraction they had committed, they were never given an opportunity to specifically answer any charge against them and even the impleading respondents would admit that they have no individual infractions to point out against the applicants.
507 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
2) At the cost of repetition, we would like to state that having acquired the rights to be promoted into the IAS after following due procedure, any further action against the applicant can only be taken by giving adequate opportunity to the applicant to explain his position in this regard.
128. Even though we have no doubt that only the Central Administrative Tribunal has the jurisdiction to entertain any matters relating to the recruitment to the IAS as well as the service matters relating to the applicant who is an All Indian Service officer, based on the Hon'ble Apex Court judgments cited and quoted extensively by us, we are informed that the Hon'ble High Court of Karnataka has expressed some anguish in the applicants not following the literal meaning of the direction No.6 of the second instance of High Court Order.
129. But then, the learned counsels for the impleading respondents made some allusions to paras 33 and 40 of the WP (C) No. 50238/2019, which we quote:
"33. The matters which were listed on 22.10.2019 were heard and are now adjourned to 31.10.2019. The interim orders were not vacated."
"40. The challenge before the Hon'ble CAT is the select list dated 25th of January 2019 and 22nd of August 2019. They relate to the selection to the post of Assistant commissioners. The said select lists have been prepared on the basis of the mandamus issued by this Honourable court. This Honourable court has expressed anguish on the acts of 508 OA No. 170/00961/2019 & Ors/CAT/BANGALORE the private respondents in approaching the Hon'ble CAT by filing original applications. This could be seen from the orders which have been produced at Annexure-H. In this view of the matter the proceedings before the Hon'ble CAT are not maintainable. The mandamus issued by this Honourable court is required to be obeyed by the KPSC. The applicant being parties, they are bound by the said orders. If they had any individual grievances which were not addressed, this Honourable Court had observed that their remedy lies before the Hon'ble Karnataka State and administrative Tribunal. The contention of the private respondents that the Karnataka administrative Tribunal will have to be interpreted and read as Central Administrative Tribunal is devoid of merit."
130. We therefore decide to transfer the matter to the Hon'ble Karnataka Administrative Tribunal. The Registry is directed to send the whole files to the Hon'ble Karnataka Administrative Tribunal for it to determine the issue by Registered Parcel/Acknowledgement Due forthwith. In the interregnum, interim orders we have issued in this regard will continue till the Karnataka Administrative Tribunal takes a decision on merit.
(C V SANKAR) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
Cvr/Ksk
1 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION No.170/00961/2019
WITH
ORIGINAL APPLICATION Nos.170/00437, 00438, 00439, 00440, 00441, 00448, 00449, 00962, 00963, 00964 of 2019 DATED THIS THE 05TH DAY OF MARCH, 2020 HON'BLE DR.K.B.SURESH, MEMBER (J) HON'BLE SHRI C V SANKAR, MEMBER (A) OA No.961/2019 Dr.N.Shivashankara, IAS, S/o Late Ninge Gowda, Aged about 47 years, Earlier Working as Chief Executive Officer, Karnataka Industrial Areas, Development Board, Kanija Bhavan, (Now awaiting posting after transfer) Race Course Road, Bengaluru-560001.
...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110 001.
2. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
2 OA No. 170/00961/2019 & Ors/CAT/BANGALORE3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Union Public Service Commission, By its Secretary, Dholpur House, New Delhi-110 069.
5. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
6. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, 3 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
8. Sushilamma N D/o Narayanappa M, Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
9. Praveen P. Bagewadi, S/o Pandit, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201.
10. Seema Naik B Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068.
11. Shivakumar H.R S/o H.C. Ramaiah, 4 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022.
12. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
13. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at No.880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13) 5 OA No. 170/00961/2019 & Ors/CAT/BANGALORE OA No.437/2019 Mr.H.Basavarajendra, IAS, S/o B.Honnappa, Aged about 52 years, Presently working as CEO, Zilla Panchayat, Davangere.
...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110 001.
2. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
6 OA No. 170/00961/2019 & Ors/CAT/BANGALORE5. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belong to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
7. Sushilamma N D/o Narayanappa M, Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
8. Praveen P. Bagewadi, S/o Pandit, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously 7 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201
9. Seema Naik B Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068
10. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022
11. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram, Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
8 OA No. 170/00961/2019 & Ors/CAT/BANGALORE12. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at 880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12) OA No.438/2019 Mr.Shivanand Kapashi, IAS, S/o Bhimappa Kapashi, Aged about 51 years, Working as Registrar, Rajiv Gandhi University of Health Sciences, Bangalore & residing at No.12, Shivakrupa, Ground Floor, 8th Main, I Cross, Ganesh Block, Mahalakshmi Layout, Bangalore.
...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110 001.
2. State of Karnataka, By its Chief Secretary, 9 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
5. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belong to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Hubli and 10 OA No. 170/00961/2019 & Ors/CAT/BANGALORE R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
7. Sushilamma N D/o Narayanappa M, Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
8. Praveen P. Bagewadi, S/o Pandit, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201
9. Seema Naik B Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068
10. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, 11 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022
11. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
12. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at 880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12) 12 OA No. 170/00961/2019 & Ors/CAT/BANGALORE OA No.439/2019 Mrs. Kavitha S. Mannikeri, IAS, D/o S.K. Mannikeri, Aged about 46 years, Working as Chief Executive Officer, Zilla Panchayat, Yadgir, Gulbarga District ...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110 001.
2. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
13 OA No. 170/00961/2019 & Ors/CAT/BANGALORE5. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
7. Sushilamma N D/o Narayanappa M, Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
8. Praveen P. Bagewadi, S/o Pandit, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously 14 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201
9. Seema Naik B Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068
10. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022
11. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram, Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
15 OA No. 170/00961/2019 & Ors/CAT/BANGALORE12. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at 880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12) OA No.440/2019 Dr. H.N. Gopalakrishna IAS, S/o late Narayana Gowda, Aged about 46 years, Working as Managing Director, CESC, Mysore and Director Administration & Human Resources, KPTCL, Bangalore and residing at No. 253, Girinivas, 15th 'D' Cross, Mahalakshmipuram, Bengaluru 560 086 ...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110 001.
16 OA No. 170/00961/2019 & Ors/CAT/BANGALORE2. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
5. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously 17 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Working as Deputy Commissioner, Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
7. Sushilamma N D/o Narayanappa M, Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
8. Praveen P. Bagewadi, S/o Pandit, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201
9. Seema Naik B Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068 18 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
10. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022
11. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram, Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
12. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at 880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12) 19 OA No. 170/00961/2019 & Ors/CAT/BANGALORE OA No.441/2019 Mr. G.C. Vrushabendra Murthy, IAS, S/o late G.N. Chandrashekaraiah, Aged about 59 years, Presently working as Director, MSME, Department of Industries & Commerce, Kanija Bhavan, Bangalore & r/a No. 6/8, Namma Mane, 1st Main Road, Konenaagrahara, HAL, Bengaluru 560 017 ...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110 001.
2. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, 20 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
5. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belong to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
7. Sushilamma N D/o Narayanappa M, Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
8. Praveen P. Bagewadi, S/o Pandit, 21 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201
9. Seema Naik B Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068
10. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022
11. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural 22 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
12. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at 880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12) OA No.448/2019 Mr. Karee Gowda, IAS, S/o Sidde Gowda, Aged about 48 years, Working as Deputy Commissioner, Bangalore Rural District, Bangalore & r/a No. 1144, 64th Cross, 18th B Mai, Behind National Public School, Rajajinagar, Bengaluru 560 010 ...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public 23 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Grievances & Pensions, North Block, New Delhi-110 001.
2. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
5. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
6. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, 24 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belong to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
7. Sushilamma N D/o Narayanappa M, Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
8. Praveen P. Bagewadi, S/o Pandit,Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201
9. Seema Naik B Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068 25 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
10. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022
11. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
12. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at 880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, 26 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 4 to 12) OA No.449/2019 Shri P. Vasantha Kumar, IAS, S/o Late Puttamadaiah, Aged about 46 years, Working as Commissioner, Backward Classes Welfare Department, Devaraj Urs Bhavan, Vasanth Nagar, Bangalore 560 001 ...Applicant (By Advocate Shri M.S. Bhagwat) Vs.
1. Union of India, Represented by its Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, Central Secretariat, Sardar Patel Bhavan, Parliament Street, Sansad Marg, New Delhi-110 001.
2. The State of Karnataka, Represented by its Chief Secretary, Vidhana Soudha, Bangalore-560 001.
3. The State of Karnataka, Represented by its Principal Secretary, Department of Personnel and Administrative Reforms, Vidhana Soudha, Bangalore 560 001
4. Karnataka Public Service Commission, Represented by its Secretary, Udyog Soudha, Bangalore-560 001.
5. Ramappa Hatti, S/o Irappa, Aged about 59 years, posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously 27 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
6. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begam Walikar D/o G M Olekar, Aged about 45 years, selected as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belong to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
8. Sushilamma N D/o Narayanappa M, Aged about 45 years, posted as Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 28 OA No. 170/00961/2019 & Ors/CAT/BANGALORE 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
9. Praveen P. Bagewadi, S/o Pandit, Aged about 45 years, posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201
10. Seema Naik B Aged about 45 years, Selected Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM IInd Stage, Bengaluru- 560 068
11. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022
12. Smt. B.V. Roopashree, D/o Late B. Venkatramana, W/o B. Jayaram 29 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Aged about 46 years, Selected as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
13. Manjunatha swamy G.N S/o N. Narasimhaiah, Aged about 53 years, Posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at 880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2&3, Shri K.M. Prakash, Counsel for Respondent No. 4 and Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13) OA No.962/2019 Mrs.Meena Nagaraj, IAS, W/o Arjuna Reddy, Aged about 45 years, Working as Director of Treasuries, V.V.Towers, Dr.Ambedkar Veedhi, Bengaluru-560 001.
...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, 30 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110 001.
2. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Union Public Service Commission, By its Secretary, Dholpur House, New Delhi-110 069.
5. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
6. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, 31 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch previously Working as Deputy Commissioner, Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
8. Sushilamma N D/o Narayanappa M, Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
9. Praveen P. Bagewadi, S/o Pandit, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201.
10. Seema Naik B Aged about 45 years, 32 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068
11. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022.
12. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
13. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant 33 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Commissioner, Now reported for duty & Waiting for Posting order and R/at No.880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13) OA No.963/2019 R S Peddappaiah, IAS, S/o Sanjeevarayappa, Aged about 57 years, Working as Commissioner, Social Welfare Department, M.S.Building, Bengaluru-560 001 ...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110 001.
2. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Union Public Service Commission, By its Secretary, Dholpur House, New Delhi-110 069.
34 OA No. 170/00961/2019 & Ors/CAT/BANGALORE5. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
6. Veerabhadra Hanchinal, S/o Bhimappa, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch previously Working as Deputy Commissioner, Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
8. Sushilamma N D/o Narayanappa M, 35 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
9. Praveen P. Bagewadi, S/o Pandit, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as KAS (Junior Scale) As Deputy Commissioner, Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201.
10. Seema Naik B Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068.
11. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, 36 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022.
12. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
13. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at No.880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13) OA No.964/2019 Akram Pasha, IAS, S/o late Sri Nanne Jan, Aged about 49 years, Earlier Working as Deputy Commissioner, Hassan District, 37 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Hassan-573 201 (Now on order of transfer and awaiting posting) ...Applicant (By Advocate Shri K. Putte Gowda) Vs.
1. Union of India, By its Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110 001.
2. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru-560 001.
3. Karnataka Public Service Commission, By its Secretary, Udyoga Soudha, Bangalore-560 001.
4. Union Public Service Commission, By its Secretary, Dholpur House, New Delhi-110 069.
5. Ramappa Hatti, S/o Irappa, Aged about 58 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts City Corporation Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 714, Shivasampad, Pantanagar, Pant Balekundri, Belagavi 591 103.
6. Veerabhadra Hanchinal, S/o Bhimappa, 38 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No. 40/1, Flat No.201, 2nd floor, 30th Cross, 7th Block, Jayanagar, Bengaluru 560 082.
7. Yasmin Begum Walikar D/o G M Olekar, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belong to 1998 batch previously Working as Deputy Commissioner, Commercial Taxes, Hubli and R/a No. 43/D, KCC Bank Layout Near Sahasrarjun Circle, Navanagar, Hubli 580 025
8. Sushilamma N D/o Narayanappa M, Aged about 45 years, Group-A, Gazetted Probationer, Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Joint Controller of State Accounts, KUWSSB, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.1872, 2 A Main 7th Cross, Judicial Layout, Yelahanka Bengaluru- 560 065.
9. Praveen P. Bagewadi, S/o Pandit, Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as KAS (Junior Scale) As Deputy Commissioner, 39 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Revenue City Corporation, Belagavi, Now relieved and posted as Assistant Commissioner, Now reported for duty & waiting for posting order and R/a Dr. Ambedkar Nagar At P.O: Chikkodi, District: Belgaum 591 201.
10. Seema Naik B Aged about 45 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now Working as Deputy Commissioner, Commercial Taxes, Koramangala, Bengaluru And R/a No. 3, 37th Main, BTM 2nd Stage, Bengaluru- 560 068.
11. Shivakumar H.R S/o H.C. Ramaiah, Aged about 52 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Deputy Commissioner, Commercial Taxes, Now relieved and Posted as Assistant Commissioner, Now reported for duty & waiting for Posting order and R/a No.705, 'A' Block, RNS Shantinivas, Yeshwantpur, Bengaluru- 560 022.
12. Smt. B.V. Roopashree, D/o Late B. Venkatramanna, W/o B. Jayaram Aged about 46 years, Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and now working As Financial Controller, Karnataka Rural Road Development Agency, 3rd floor, Grameenaabhirudhi Bhavan, Anand Rao Circle, Bangalore 560 009 and R/at No.661, 8th Cross, 60 feet road, BEML 4th Stage Rajarajeshwarinagar, Bangalore 560 098.
40 OA No. 170/00961/2019 & Ors/CAT/BANGALORE13. Manjunathaswamy G.N S/o N. Narasimhaiah, Aged about 53 years, Posted as Group-A, Gazetted Probationer Assistant Commissioner, Junior Scale Belonged to 1998 batch and previously Working as Chief Financial Officer, National Health Mission, Bangalore Now relieved and posted as Assistant Commissioner, Now reported for duty & Waiting for Posting order and R/at No.880, 22nd cross, 7th Sector, 6th Main, HSR Layout Bangalore 560 002. ...Respondents (By Shri Dhyan Chinnappa, Additional Advocate General, Shri R.B. Sathyanarayana Singh, Counsel for Respondent No.2, Shri K.M. Prakash, Counsel for Respondent No. 3 and Shri M. Narayan Bhat, Counsel for Respondent No. 5 to 13) ORDER (HON'BLE DR. K.B. SURESH, MEMBER (J) All these matters arise from the very same issue and present different sides of the issue. It relates to a selection made in 1998 by the Karnataka Public Service Commission and the consequences of it.
Apparently this selection was challenged on the basis that one or other communities had gained appreciably more because of the communal implications of the selectors and therefore the others stood diminished in their expectations.
2. A challenge was made to the Hon'ble Karnataka Administrative Tribunal which called for certain documentation. However, the Karnataka Public Service Commission took a stand that these 41 OA No. 170/00961/2019 & Ors/CAT/BANGALORE documents cannot be given to the Court and the Court took adverse presumption and directed re-evaluation.
3. It was taken up in challenge before the Hon'ble High Court which is the jurisdictional body to decide the service matters and it had, after examining the matter, passed a detailed order. In the original order we have rendered, we have explained clearly the chronology of events and the consequences thereof very clearly in our 500 pages judgment.
Therefore, that need not be explained any further but it will also form a part of this order.
4. This matter was also challenged before the Hon'ble Apex Court and the Hon'ble Apex Court having approved it and we find from records that this view of the Hon'ble High Court had been reflected in several other orders of the Hon'ble Apex Court and therefore can be said to have finally triumphed as this is the method apparently followed by the Union Public Service Commission also to this day.
5. But apparently in 2012 a Public Interest Litigation was filed challenging the selection made in 1998 and it was taken up through various stages of hearing which ended in an order of setting aside of appointment of some people and since all of them had, at that point of time, been under the sovereign jurisdiction of the Karnataka 42 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Administrative Tribunal, it was mentioned in the order that individual grievances can be agitated.
6. By efflux of time, these people became competent to be considered for promotion to Indian Administrative Service and after such consideration the DPC approved their selection and they were selected to Indian Administrative Service. It is to be understood in this connection that this is not a natural progression based on seniority but a case of selection. They thus obtain a new identity. In the meanwhile, the Hon'ble Apex Court was approached by the aggrieved parties but the Hon'ble Apex Court while upholding their right to be considered for a selection held that it is subject to any litigation thereof. When the matter was taken up in contempt before the Hon'ble High Court, the Government had passed an order seeking to revert these people and on which they approached the Central Administrative Tribunal which had granted an interim stay. That stay order is still in force. In the meanwhile, the matter was heard in detail and order in OA No. 170/00961/2019 and other connected cases was pronounced. It directed the transmission of the file to the Karnataka Administrative Tribunal as apparently the Division Bench of the Hon'ble High Court, according to Shri Narayan Bhat, learned counsel for the impleading parties, had opined that the Karnataka Administrative Tribunal should have some jurisdictional value. This, this Tribunal considered to be not 43 OA No. 170/00961/2019 & Ors/CAT/BANGALORE in accordance with law as under Section 14 and 15 of the Administrative Tribunal's Act as only the Central Administrative Tribunal could adjudicate on this matter. However, since a reference seems to be passed under Section 113 of the CPC, the view of the Karnataka Administrative Tribunal was decided to be sought for and therefore, after having issued judicial declaration and interdictions, the matter was conveyed to the Karnataka Administrative Tribunal which returned it on the ground that the Administrative Tribunal's Act do not contain any provision for lateral transmission.
7. Probably, this view may not be correct as the CPC is still the guiding star for deciding matters of jurisdiction and adjudication especially when the concerned statute speaks nothing about the situation which have arisen. However the applicant and other impleading parties points out to two elements contained in letter No. DPAR 1 SAS 2017 dated 11.02.2020, which we quote:
"GOVERNMENT OF KARNATAKA No.DPAR 1 SAS 2017 Karnataka Government Secretariat, Vidhana Soudha, Bengaluru, dated 11.02.2020 From The Chief Secretary to Government, Vidhana Soudha, Bengaluru-560 001.
Sir, 44 OA No. 170/00961/2019 & Ors/CAT/BANGALORE The Secretary Union Public Service Commission, Dholpur House, Shahajahan Road, New Delhi-110 001.
Sir, Subject: Selection Committee Meeting (SCM) to prepare Select List-2016 for promotion of SCS officers to the IAS of Karnataka cadre-reg.
Reference: Your office Letter F.No.6/8/2019-AIS dated 31.01.2020.
-----
Your kind attention is invited to the Commission's letter dated 31.01.2020 wherein the Commission has observed that, it is not clear whether seniority of any other officer included in the eligibility list consisting of 56 officers considered for preparation of Select List of 2015 has been altered consequent upon revision of the seniority list of KAS.
Pursuant to this we wish to bring to the kind notice of the Commission the following facts for better clarity.
i) The eligibility list for preparation of Select List-2015 consisted of 56 officers. Among the 56, 18 officers from Sl.No.1 to 18 belong to 1998 batch, 17 officers from Sl.
No. 19 to 36 belong to 1999 batch, 17 officers from Sl.No.37 to 53 and Sl.No.55 belong to 2004, one officer each belongs to 2007 and 2009 batches. Out of this 56, 34 officers from Sl.No.1 to 33 and 35 were selected in Select List-2015. All eligible officers of 1998 batch have been considered and find place in the Select List of 2015. Apart from the 34 officers selected in the Select List of 2015, the 22 officers who were part of the original eligibility list belong to batches other than 1998 batch and are eligible to be considered for selection. (The list has been abstracted in Annexure-1)
ii) The High Court order dated 21.06.2016 has impact only on the 1998 batch. The 22 officers who were part of eligibility list of Select List-2015 and who are listed in eligibility list of Select List -2016 will not be affected by the High Court judgment. Their position in the seniority 45 OA No. 170/00961/2019 & Ors/CAT/BANGALORE list of KAS officers will not vary due to revision of seniority in 1998 batch as per High Court judgment. This is because within 1998 batch, in KAS seniority list 11 people will move out and 11 new people will enter and any inter se changes that will happen will be within 1998 bloc itself. The other batches from 1999 onwards will remain in the same seniority in KAS seniority list even after revision.
iii) Revision of Select List - 2015 will not in any way affect the seniority of KAS officers in the eligibility list. It will not in any way reduce the number of vacancies available for Select List-2016 either. If at all, there may be vacancies in the 1998 bloc which might spill over to be filled by subsequent batches.
In view of the above, it is requested to convene Selection Committee Meeting for Select List-2016 without waiting for convening RSCM for Select List-2015 Yours sincerely, Sd/-
(G. Shyama Holla) Under Secretary to Government, Department of Personnel and Administrative Reforms (Services-5) Name of the Officer Year of Selection to KAS
1. Satheesha BC 1998
2. Basavarajendra H 1998
3. Gopal Krishna HN 1998
4. Dr. Shiva Shankara N 1998
5. Dr. Arundathi Chandrashekar 1998
6. Dr. Ravi MR 1998
7. Ravindra PN 1998
8. Jyothi K 1998
9. Meena Nagaraj CN 1998
10. Akram Pasha 1998
11. Leelavathy K 1998
12. Vasantha Kumar P 1998
13. Karee Gowda 1998 46 OA No. 170/00961/2019 & Ors/CAT/BANGALORE
14. Shivananda Kapashi 1998
15. Gangu Bai Ramesh Mankar 1998
16. Kavitha S. Mannikeri 1998
17. Peddapaiah RS 1998
18. Vrushabendra Murthy GC 1998
19. Dr. Harish Kumar K 1999
20. Ravi Kumar MR 1999
21. Rajesh Gowda MB 1999
22. Mahantesh Bilagi 1999
23. Ramesh KN 1999
24. Patil Yalagouda Shivanagouda 1999
25. Honnamba S 1999
26. Latha R 1999
27. Srinivas K 1999
28. Archana MS 1999
29. Dayananda KA 1999
30. Jagadeesha G 1999
31. Janaki KM 1999
32. Sathyabhama C 1999
33. Rajamma A Chowdareddy 1999
34. Latha Kumari KS 1999
35. Zehera Naseem 1999
36. Praveen Kumar GL 2004
37. Vijayamahantesh B. 2004 Dhanammanavar
38. Govinda Reddy 2004
39. Prabhuling Kavali Katti 2004
40. Vyshali ML 2004
41. Ramya S 2004
42. Balachandra SN 2004
43. Bharathi D 2004
44. Yogesh AM 2004
45. Shivaprasad PR 2004
46. Gangadharaswamy GM 2004
47. Vidyakumari K 2004
48. Nagendraprasad K 2004
49. Kumara 2004
50. Venkatesh T 2004
51. Gayathri KM 2004
52. Poornima BR 2004
53. Jayavibhavaswamy 2004
54. Sangappa 2007
55. Nagaraju NR 1999
56. Major Siddalingayya Hiremath 2009 47 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Recommended Names for Select List - 2016 (SCS-Category)
1. M.V. Chandrakanth 1999
2. Rajamma A Chowdareddy 1999
3. Zehera Naseem 1999
4. Praveen Kumar GL 2004
5. Vijayamahantesh B. 2004 Dhanammanavar
6. Govinda Reddy 2004
7. Prabhuling Kavali Katti 2004
8. Vyshali ML 2004
9. Ramya S 2004
10. Balachandra SN 2004
11. Bharathi D 2004
12. Yogesh AM 2004
13. Shivaprasad PR 2004
14. Gangadharaswamy GM 2004
15. Vidyakumari K 2004
16. Nagendraprasad K 2004
17. Kumara 2004
18. Venkatesh T 2004
19. Gayathri KM 2004
20. Poornima BR 2004
21. Jayavibhavaswamy 2004
22. Sangappa 2007
23. Nagaraju NR 1999
24. Major Siddalingayya Hiremath 2009
8. The applicants would say that they are still Indian Administrative Service officers and only through due process of law can they be ejected from their position. Shri Narayan Bhat would contend that since rightly or wrongly they have been ejected from their position vide the Annexure, List of Eligibility officers for Select List-2015 (SCS-
Category), it has to be taken as implied that they have already been ejected even though it is covered by interim order issued by the Central 48 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Administrative Tribunal and the Karnataka Administrative Tribunal. Shri Narayan Bhat also demands that since these people have been ejected in their places, his client should find a place. In normal situation if these people are ejected there cannot be any doubt that the people who have been selected in their stead might find place. But the fact remains that these people are not ejected yet but then the Karnataka Government had formulated an opinion based on one portion of the Hon'ble High Court judgment which had set aside the ordered appointments but then forgot the proviso by which right was given to individuals to agitate their personal right as apparently the Hon'ble Court could not hear the individual grievances of the parties.
9. A view was canvassed that after the first instance judgment of the Hon'ble High Court, the second instance judgment could not have been issued but then it is also stated that this has been tested at the anvil at the Hon'ble Apex Court and the Hon'ble Apex Court having dismissed the SLP the result is the concretization of the second instance Hon'ble High Court judgment.
10. However, since all these matters are in the jurisdiction of the Karnataka Administrative Tribunal and since the learned counsel for some of the parties were not coming to the Court for several postings despite having been regularly informed through the learned 49 OA No. 170/00961/2019 & Ors/CAT/BANGALORE Government advocate, they were asked to state their minds and today some of them have filed withdrawal applications.
11. But Shri Narayan Bhat also produces a letter No. DPAR 01 SAS 2017 dated 16.12.2019, which we quote:
"Dear Sir, I invite your kind attention to our reply dated 13.05.2019 regarding the proposal of State Government pertaining to the Select List 2016 under SCS category submitted vide letter dated
12.03.2019. In these letters the clarification/comments (Annexure I) of the State Government with respect to the observation of the Commission and the compliance of the Hon'ble High Court's order (Annexure II) were submitted.
It was submitted that that the State Government was in the process of taking a suitable decision with regards to revised selection list published by KPSC in order to comply with Hon'ble High Court direction in WP No. 27674/2012.
The State Government has now taken a decision comply with the direction of the Hon'ble High Court in total.
The State Government has issued suitable order for relieving officers who have not secured the requisite ranks as per the revised final select list published by KPSC dated 22.08.2019.
As per the final list 11 out of 18 officers of 1998 batch promoted to IAS have lost their position as KAS (AC/SDM). They have not yet been relieved only because of stay orders of CAT. Hon'ble High Court in WP 50238/2019 (S-CAT) has given stay on further proceedings in these CAT cases as well. The issue of 1998 batch is thereby coming to a finality.
As explained in the earlier communication, Select List 2016 comprises of 4 officers of 1999 batch and officers of 2004 batch as whole. With the State Government having clearly decided to implement the High Court of Karnataka order and given the fact that 2016 Select List and vacancies are independent of 1998 batch, it is not justifiable to withhold the opportunities of eligible officers of the junior batches and deprive them of promotion to IAS cadre.
Thereby in the light of the finality in legal proceeding with regard to 1998 batch and in the light of State Government's 50 OA No. 170/00961/2019 & Ors/CAT/BANGALORE decision to implement the Hon'ble High Court order in totality, it is hereby requested that the SCM for Select List 2016 be convened without further delay With regards, Yours sincerely, Sd/-
(T.M. Vijay Bhaskar)"
12. Therefore, apparently they have decided to keep the 1998 batch issues in a case of suspended animation. Therefore, without any doubt, the 1998 batch cases should be decided separately but relating to his demands that his clients may be allowed to supplant the applicants may not be granted without hearing the other people and in view of the acceptance of the jurisdiction of the Hon'ble Karnataka State Administrative Tribunal at Bangalore in Application No. 147- 152/2020, we may not be correct in intruding into the matter at this time but we have reserved to ourselves the issue of jurisdiction and reiterate that in the case of IAS officers and those who wishes to become IAS officers the settled legal crux is that the jurisdiction shall only be with the Central Administrative Tribunal. But then the applicants seems to have filed through the learned counsel for the applicant, though without the signature of the applicant, but signed only by the learned counsel, a memo for withdrawal. Therefore, we have to approach it with a little more caution. Therefore, we quote from the memo filed in OA No. 170/00437/2019:
"IN THE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH 51 OA No. 170/00961/2019 & Ors/CAT/BANGALORE AT BANGALORE O.A. No. 437/2019 BETWEEN H.BASAVARAJENDRA ...APPLICANT AND THE UNION OF INDIA AND OTHERS ...RESPONDENTS MEMO FOR WITHDRAWAL The applicant respectfully submits as under: The applicant has filed the above Application challenging the impugned Select List dated 25.01.2019 and 22.08.2019 prepared and published by the Karnataka Public Service Commission and further sought for a direction to continue the applicant in the cadre of Indian Administrative Service.
On 20.12.2019, this Hon'ble Court was pleased to transfer the above application to the Hon'ble Karnataka State Administrative Tribunal at Bangalore. The order dated 20.12.2019 passed by this Hon'ble Tribunal has been challenged before the Hon'ble High Court of Karnataka by the private respondents in W.P. No. 406 of 2020 wherein the Hon'ble High Court on 10.01.2020 has stayed the order of this Hon'ble Tribunal with liberty reserved to the applicant to approach the Hon'ble Karnataka State Administrative Tribunal, Bangalore. Thereafter, the applicant has approached the Hon'ble Karnataka State Administrative Tribunal seeking similar reliefs.
In view of the subsequent developments, the applicant maybe permitted to withdraw the subject application and pursue the pending subject matter before the Hon'ble Karnataka State Administrative Tribunal in the interest of justice and equity.
BANGALORE sd/-
Date: 04.03.2020 Advocate for applicant"
13. Next the question is, what will happen if one party to a proceeding decides to extricate himself voluntarily from the jurisdiction 52 OA No. 170/00961/2019 & Ors/CAT/BANGALORE which is available to him? Shri Narayan Bhat would submit that in that case the in limine situation would prevail. Therefore, we had heard the matter for some time on this but the learned counsel for the applicants were unable to point out any significant issue involved in all these cases.
14. However, as a matter of jurisdictional responsibility, this Court cannot extinguish the jurisdiction in any manner. Therefore, we issue the following orders:
1) The judicial declaration issued earlier are retained;
2) The jurisdiction of the Tribunal is retained.
3) We will consider that the applicant wishes to not further prosecute the matter and therefore for non-prosecution we dismiss all these OAs.
15. Therefore, the OAs are dismissed as above. No order as to costs.
(C V SANKAR) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
Ksk