Karnataka High Court
Sri.Davalamalik Sab Takkalaki vs The State Of Karnataka on 7 January, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
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IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 07 T H DAY OF JANU ARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.106384/2018 (S- KAT)
BETWEEN:
SRI DAVALAMALIK SAB TAKKALAKI,
S/O. LATE KALE S AB,
AGED ABOUT 38 Y EARS,
WORKING AS ASSISTANT TEACHER ( KANNADA)
GOVERNMENT HIG H SCHOOL,
BUDNI P.M., MUD HOL TA LUK,
BAGALKOT D IS TRICT - 587124,
RESIDING A T KOPPA S.K.,
BILAGI TA LUK,
BAGALKOT D ISRTRICT - 587204.
...PETITIONER
(SRI. M.NAGARAJAN &
SRI. PRASHANT S . KADADEVAR, ADVOCATES)
AND:
1. THE S TA TE OF KA RNATAKA ,
REPTD. BY ITS SECRETARY ,
DEPARTMENT AOF COLLEGIA TE EDUCATION,
M.S.BUILDING,
BENGALURU-560001.
2. THE EXECU TIVE D IRECTO R &
SELECTION AU TH ORITY,
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KARNATAKA EXAMINA TION AU THORITY ,
18 T H CROSS, SAMPIGE ROAD,
MALLESHWARAM,
BENGALURU-560012.
3. SAYYAD SAB MUJAWAR S/O . NABISAB,
AGE MAJOR,
RESIDING A T POS T JUNJRAWAD,
ATHANI TALUK,
BELAGAVI-591304.
...RESPONDENTS
(SRI. V.S .KALASURMATH, HCGP FOR R1;
SMT. HEMA R.KU LKARNI FOR
SRI. R.M.KULKARNI, ADV. FOR R2;
NOTICE TO R3 S ERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONS TITUTION OF INDIA
PRAYING TO (I) QUASH THE ORDER DATED 26.08.2016
PASSED IN APPLICA TION NO .7294/2016 AND TH E
ORDER DATED 03.03.2017 IN R.A .NO.67/2017 BOTH
ON THE FILE OF THE HON'BLE KSAT RESPECTIVELY
VIDE ANNEXU RES- K & M , ETC.,
THIS WRIT PETITION COMING ON FOR FINAL
HEARING THIS DAY, K.N.PHANEEND RA, J., MADE THE
FOLLOWING:
ORDER
The present writ petition is filed for seeking the following reliefs:
(i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing the order :3: dated 26.08.2016 passed in Application No.7294/2016 and the order dated 03.03.2017 in R.A.NO.67/2017 both on the file of the Hon'ble KSAT respectively vide Annexure-K & M.
(ii) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing the final select list bearing No.ED/KEA/ADMN/CR-55/2014-
15 dated 02.01.2017 vide Annexure-J insofar as it relates to the selection of respondent No.3 herein holding that the petitioner has secured the prescribed minimum 30% marks in Paper-II (English) or In the alternative to direct the 2 n d respondent to undertake the reevaluation of the answer script of the petitioner in respect of paper-II (English) bearing No.184552CF vide Annexure-D.
(iii) Issue an order or direction, directing the 1 s t respondent to appoint the petitioner to the post of Assistant Professor (Kannada) pursuant to the order that may be passed by this Hon'ble Court in the above petition and grant him all the consequential benefits including seniority, increment, arrears of salary which he is :4: legally entitled to as if he is selected and appointed along with the candidates who are selected and appointed under category-IIB pursuant to the notification dated 22.01.2015 read with the corrigendum notification dated 16.07.2015 issued by the 2 n d respondent.
2. The brief factual matrix of the case as divulged from the writ petition and as well as the application filed before the KSAT are that, the petitioner is a graduate in Arts passed with first class conducted by the Karnataka University in the year 2002. He has also obtained Master Degree from the Karnataka State Open University in the year 2011. Subsequently, the petitioner appeared in the National Eligibility Test for Lectureship, conducted by the University Grants Commission and he was declared as qualified for Lectureship, held on 24.06.2012. Thereafter the petitioner also appeared for the State Eligibility Test for :5: Lecturer/Assistant Professorship, and was also qualified in the examination held on 10.11.2014.
3. It is alleged that, the 2nd respondent has issued a notification dated 22.01.2015 inviting applications for recruitment to the posts of Assistant Professors in Government First Grade Colleges in the State of Karnataka and the said notification was also followed by a corrigendum dated 16.07.2015. The method of recruitment for the post of Assistant Professor is governed by Rule called 'the Karnataka Educational Department Services (Collegiate Education Department) (Recruitment) (Special) Rules, 2014'. The petitioner who has all the eligibility criteria prescribed under the said Special Rules, has submitted online application as prescribed in the recruitment notification and the corrigendum notification dated 15.07.2015. The petitioner was fully confident that he would be qualified and selected. But after seeing the results vide merit list :6: dated 16.06.2017, he was declared as not eligible on the ground that he did not secure 30% of the marks in the compulsory paper i.e. Paper II in English etc.
4. It is contended that, the procedure followed for evaluation of the answer scripts of the petitioner has not been properly followed. There is discrimination made by the competent authority in allocating marks to the petitioner and other similarly placed candidates. The learned counsel also submitted that the answer script which has been evaluated of the petitioner has not been properly evaluated as the answers written by the petitioner was not properly compared with the standard key answers given by the examination authorities themselves, therefore, there is serious error or discrimination done by the respondents in allocating the marks to the petitioner and as well as committing discrimination with the other candidates. Therefore making such grounds the petitioner has in fact :7: approached the Karnataka State Administrative Tribunal (for short 'the KSAT') in Application No.7294/2016. The KSAT vide order dated 26.08.2016 has in fact rejected the said application on the ground that there are many mistakes in the answer scripts, however, the examiner has liberally awarded marks and the applicants does not deserve any more marks than what is awarded. Therefore, finding that there is no merit in the application, rejected the said application.
5 Being aggrieved by the said order, the petitioner has also filed a review application and vide order dated 03.03.2017, the KSAT has rejected the said application also finding that there was no merit in the review application.
6. Being aggrieved by the above said two orders, the petitioner has approached this Court. The learned counsel for the petitioner has drawn our attention to the answer script of the petitioner produced :8: and the question paper for the competitive examination 2016. He points out that the question No.13(g) has been properly answered by the petitioner, but no mark has been allotted to him. We have carefully perused the said question which reads as under:
"13(g). Why do people have plenty of leisure today?"
7. The learned counsel also brought to our notice the standard answers given by the examination authorities which is marked at Annexure-C, wherein the standard answer given to that question is depicted as follows :
"13(g). Because machines save time".
8. The learned counsel also drawn our attention to the answer script which is sought to be re- evaluated by him which is at Annexure-D. At page 107 of the writ petition (inside page 7), the answer given by the petitioner to question No.13(g) is, :9: "Machine save time and therefore people have plenty of leisure today."
9. The learned counsel also produced the marks allocated to this particular question as per Annexure-E at page 112 at particular page No.113. For question No.13(g) the maximum marks fixed was one and allocated was 00. Therefore, the learned counsel seriously argues before the Court that the said evaluation has not been properly done by the competent authority. If that one number would have been given, he would have secured 30% as per the eligibility criteria and he would have been eligible for the Assistant Professor's post. Therefore, this has paralysed the right of the petitioner which has not been properly considered and appreciated by the KSAT.
10. The learned counsel also brought to our notice that, another candidate who has answered in similar manner has been provided with one mark to the : 10 : said question. He has produced the document at Annexure-F at page No.115-127. The answer script of the said candidate at page No.124 is specifically drawn to our attention to question No.13(g). The said person has answered in the similar fashion that:
"Machine saves time and therefore, people have plenty of time today."
11. The allocation of the marks as noted above at Annexure-F itself at page No.117 the authorities have allocated one mark to the said answer i.e. 13(g). Therefore, the learned counsel rightly contends that, there is serious discrimination in allocating the marks.
12. The KSAT has not perused these materials on record perhaps on the basis of the submissions of the respondents counsel carried away and passed the impugned orders. In our opinion the KSAT would have gone through these materials. Therefore, we are of the opinion that, instead of sending back this matter to : 11 : KSAT, we feel it just and necessary to give proper and appropriate directions to the respondent Nos.1 and 2 themselves in order to consider the above said aspects in proper and legal perspective in the light of the above said observations made by us.
13 The KSAT in fact has made an observation that there are discrepancies in the answer scripts, but the authorities have given sufficient marks, but on what basis such observation is made is also not made known in the impugned orders.
14. Apart from the above facts, the learned counsel for 2nd respondent has raised a legal point. He contends that, there is no provision in the statute for revaluation of the answer scripts as prayed by the petitioner. In this context, it is worth to mention here the latest Judgment of the Apex Court reported in 2019 SCC Online SC Page 139 between High Court of Tripura through the Registrar General Vs. Tirtha : 12 : Sarathi Mukherjee and Others. At paragraph No.2 of the Judgment, the court has made certain factual aspects and observations which run as follows :
"In the review petition, the High Court finds that under the 2003 Rules, which apparently governed the conduct of the examination, there is no provision for re- evaluation of the answer scripts. It was, however, found that there is no prohibition against re-evaluation, provided Court finds any patent error. This may include not awarding any marks for a correct answer or treating a correct answer to be an incorrect answer. The Court, no doubt notes it has to be bear in mind that it cannot step into the shoes of the examiner and undertake the exercise of re-evaluation like a super examiner."
Having observed the same, at paragraph No.20 of the Judgment, the Apex Court also further observed that, "20. The question however arises whether even if there is no legal right to demand revaluation as of right could there arise circumstances which leaves the Court in any doubt at all. The case may arise where even though there is no provision for revaluation it turns out that despite giving the : 13 : correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having giving correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks.
15. Ultimately, the observation of the Apex Court is that, such constitutional powers under Section 226 can be exercised in rare and exceptional cases. At the penultimate paragraph, the Apex Court also observed at paragraph No.34 that, "However, we would like to rest our conclusion on the basis that not being armed with a right given by a provision providing revaluation and in the facts which we have already set out and the reasons we have alluded we would think that the High Court ought not to have allowed the review petition. We may incidentally also notice that the High Court has, on the one hand reasoned that : 14 : what was covered by the judgment in the writ petition was a complaint related to Paper III. Despite this, the direction is given for evaluation of Paper II and Paper III. It may be true that direction to evaluate Paper III may be a mistake but even if this is treated as Paper No.I & II, the High Court has premised its interference on the premise of answer to Paper No.II. In such circumstances, we allow the appeal and set aside the impugned judgment. The review petition filed before the High Court shall stand dismissed."
16. Looking to the above said Judgment of the Apex Court the Principle laid down is that though there is no Rule providing for any re-evaluation, but the writ court has jurisdiction to look into the materials on record in order to ascertain whether the party has got any other forum to approach for the purpose of venting out his grievances, when particularly the Court finds that the right of the party is paralyzed and no appeal or review or revision is provided to remedy such denial of the right to the party and a grave injustice has been caused by virtue of the orders passed by the authorities. In such circumstances, in order to remedy the injustice : 15 : the writ courts have got jurisdiction to correct the said error committed by the authorities and provide an opportunity to the authorities themselves to correct themselves the mistake committed by them.
17. The learned counsel for the petitioner also drawn our attention to another Ruling reported in (1886) 2 SCC 679 between Comptroller and Audigtor- General of India, Gian Prakash, New Delhi and another Vs. K.S.Jagannathan and another.
18. The learned counsel further brought to our notice the observation of the Apex Court to the effect that, "When injustice is apparent on the face of the record, the writ courts have even got powers not only to give directions to the competent authorities to correct themselves and adjudicate the rights of the parties in accordance with law, but the writ court has itself got jurisdiction to pass an order or give directions which the authorities or the public authorities should have passed or given had : 16 : it properly and lawfully exercised its jurisdiction."
19. Though some other portion of the Judgment have been brought to our notice, but this is the gist of the principle laid down by the Apex Court so far it refers to this case is concerned.
20. We are conscious of the above said observation made by the Apex Court. But in the said case also, the Apex Court has in detail discussed with regard to the great injustice that has been caused and it has been said that in rare cases, where circumstances so warrant the Court so that, it can completely remedy the parties, in such an eventuality only the court can venture upon to pass such an order stepping into the shoes of the authorities themselves. But, in other cases, the general principle is that the Court should not normally step into the shoes of the competent authority which can only adjudicate the rights of the parties : 17 : exercising their powers vested under the relevant statutes and the Court itself cannot usurp that power to adjudicate the rights of the parties which are vested with the competent authorities. Therefore, in order to exercise the power the court has to look into whether it is a rarest of rare case and falls under the exceptional cases in order to pass such an order.
21. In the above said backdrop, the Court has to again fall back upon the facts of this particular case. Of course the petitioner has sought for the remedies as noted above. In the event of the court itself passing any order adjudicating the rights of the petitioner than further the court has to look into the other person who has already been appointed by virtue of being successful in the eligibility test and whether he has to be replaced or whether he has to be removed or any alternate allocation has to be made without disturbing him, if suppose the petitioner is successful after the re- : 18 : evaluation of the answer script of the petitioner by the 2nd respondent. It is the power that has been vested with the respondent Nos.1 and 2 authorities to look into all these facts, how they can exercise their powers under the facts and circumstance with respect to the petitioner and the person who has already been appointed. Therefore, we are of the opinion, it is not a rarest of rare case and fit case where the court itself can exercise those powers vested in respondent Nos.1 and 2, but direct the respondent Nos.1 & 2 to exercise their statutory powers in accordance with law.
22. Under the above said facts and circumstances we are reluctant to pass such an order on merits and adjudicate the rights of the petitioner. However, the inconvenience and injustice that has been pleaded by the party before this Court have to be remedied by giving appropriate directions to the : 19 : respondent Nos.1 and 2. Therefore, with these observations, we proceed to pass the following:
ORDER
(i) The writ petition is partly allowed.
(ii) The respondent Nos. 1 and 2 are hereby directed to re-evaluate the answer script of the petitioner by appointing a competent authority with reference to the specific answer given in the answer script as quoted above with reference to the standard answer given by the examination authority and particularly the marks has to be looked into whether it can be allotted or accorded to the petitioner in accordance with law and thereafter the respondent Nos.1 and 2 have to pass appropriate orders with reference to the eligibility of the petitioner and if the petitioner succeeds by virtue of the order of the authorities then it has to look into how he can be accommodated in accordance with law and pass appropriate orders.
(iii) Respondent Nos.1 and 2 are hereby directed to comply with the aforesaid directions, within a period of three months from the date of receipt of the copy of this Order.: 20 :
With these observations, the writ petition is partly allowed.
SD/-
JUDGE SD/-
JUDGE *Svh/-