Karnataka High Court
Shivkumar S/O Maruti vs The State Of Karnataka And Ors on 20 September, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
WRIT PETITION NO. 202012 OF 2021 (S-RES)
C/W
WRIT PETITION NO. 201999 OF 2021 (S-RES)
IN WP NO.202012 OF 2021
BETWEEN:
FAKEERAPPA S/O MATHYAREPPA
AGED ABOUT 33 YEARS, OCC: NIL,
R/O TORANADINNI, TQ. MANVI,
DIST. RAICHUR-584120
...PETITIONER
(BY SRI. MAHESH PATIL, ADVOCATE)
AND:
Digitally
signed by B 1. THE STATE OF KARNATAKA
NAGAVENI REPRESENTED BY ITS
Location:
High Court Of PRINCIPAL SECRETARY,
Karnataka
DEPARTMENT OF SOCIAL WELFARE,
M.S.BUILDING, BENGALURU-560 001
2. THE EXECUTIVE DIRECTOR
KARNATAKA RESIDENTIAL EDUCATIONAL
INSTITUTIONAL SOCIETY
(A SOCIETY REGISTERED UNDER THE
SOCIETIES REGISTRATION ACT)
AN ORGANIZATION OF SOCIAL WELFARE
DEPARTMENT, NO.8,
MSB-1, 6TH AND 7TH FLOOR,
CUNNINGHAM ROAD,
BENGALURU-560 052
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3. THE KARNATAKA PUBLIC
SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY,
UDYOG SOUDHA, PALACE ROAD,
BENGALURU-560 001
4. SUBBANNA S. S/O KNOWN,
AGED ABOUT 28 YEARS, OCC: NIL,
R/AT GOLLA LINGAMMAHALLI,
VILLAGE AND POST SANDUR TALUKA
BELLARI DIST.-583112
5. BABU S/O TUKARAM
AGED ABOUT 33 YEARS,
OCC: NIL,
AT POST DESAI KALLUR,
TQ. AFZALPUR,
DIST. KALABURAGI-585301
6. JADEPPA H.
S/O SANNAFAKKERAPPA
AGED ABOUT 44 YEARS,
OCC: NIL,
NO.15, GONAL VILLAGE,
SUGGENAHALLI POST,
BELLARY DIST, HOSPETE TALUKA
BELLARY-583 129
7. SHIVARAJ DEVAPPA
S/O NOT KNOWN,
AGED ABOUT 35 YEARS,
OCC: NIL, DANDAMBALLI
#4-9, BUDDHA NAGAR BIRANUR,
TQ. SHAHAPUR,
DIST. YADGIRI-585304
8. SANTOSH KUMAR B.
S/O NOT KNOWN,
AGED ABOUT 40 YEARS,
OCC: NIL,
H.NO.127, FIRST FLOOR,
SUVARNAKAMALA
OPP. CADA OFFICE,
MALAVAGOPPA
SHIVAMOGGA-577 222
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9. SANTOSHKUMAR S/O NOT KNOWN,
AGED ABOUT 34 YEARS, OCC: NIL,
PLOT NO.61, SHIVA NILAYA
SAI LAYOUT, SHAKTI NAGAR,
KALABURAGI-585103
...RESPONDENTS
(BY SMT.ARATI PATIL, HCGP FOR R1;
SRI. SHARANABASAPPA K. BABSHETTY, ADVOCATE FOR R2;
SRI. R.J. BHUSARE, ADVOCATE FOR R3;
SRI.SANTOSH B.PATIL, ADVOCATE R4, R6, R7, & R8;
SRI. GANESH NAIK, ADVOCATE FOR R5 & R9)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED FINAL SELECTION LIST NOTIFICATION BEARING
NO.PSC/720/RTB(2)/2017-18/1344, DATED 23.09.2021 VIDE
ANNEXURE-J ISSUED BY THE 3RD RESPONDENT INSOFAR AS NON-
SELECTION OF THE PETITIONER AND SELECTION OF THE PRIVATE
RESPONDENTS HEREIN BY DECLARING THE SAME AS ILLEGAL AND
ETC.,
IN WP NO.201999 OF 2021
BETWEEN:
SHIVKUMAR S/O MARUTI
AGED ABOUT 33 YEARS, OCC: NIL,
R/O. VITHALPUR, POST. MEENKERA,
TQ. CHITGUPPA,
DIST. BIDAR-585227.
...PETITIONER
(BY SRI. MAHESH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF SOCIAL WELFARE,
M.S. BUILDING, BENGALURU-560001.
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2. THE EXECUTIVE DIRECTOR
KARNATAKA RESIDENTIAL
EDUCATIONAL INSTITUTION SOCIETY,
(A SOCIETY REGISTERED UNDER THE
SOCIETIES REGISTRATION ACT),
AN ORGANIZATION OF
SOCIAL WELFARE
DEPARTMENT, NO.8,
MSB-1, 6TH AND 7TH FLOOR,
CUNNINGHAM ROAD,
BENGALURU-560052.
3. THE KARNATAKA PUBLIC
SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY,
UDYOG SOUDHA, PALACE ROAD,
BENGALURU-560001.
4. NAGARAJ S/O NOT KNOWN
AGED ABOUT 32 YEARS,
OCC: NIL,
R/O. NAGARAGUNDA,
TQ. DEVADURGA,
DIST. RAICHUR-584111.
5. SHIVAPPA S/O NOT KNOWN
AGED ABOUT 32 YEARS,
OCC: NIL, AT POST. SANGANUR,
TQ. AFZALPUR,
DIST. KALABURAGI-585265.
6. DEVINDRA MIJEJI
S/O NOT KNOWN
AGED ABOUT 31 YEARS,
OCC: NIL,
R/O AT POST. KAWALAGA (B),
DIST. KALABURAGI-585308.
7. MAHANTESH GHANUR
S/O NOT KNOWN
AGED ABOUT 35 YEARS,
SHARANABASAVA JR.
COLLEGE OF SCIENCE,
SHORAPUR, DIST. YADGIRI-585215.
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8. SURYAKANTA S/O HANUMANTH
AGED ABOUT 34 YEARS,
AT. KUTOOR,
POST. KAWALAGARGA, TQ. JEWARGI,
DIST. KALABURAGI-585310.
...RESPONDENTS
(BY SMT.ARATI PATIL, HCGP FOR R1;
SRI. SHARANABASAPPA K. BABSHETTY, ADVOCATE FOR R2;
SRI.R.J.BHUSARE, ADVOCATE FOR R3;
SRI. SANTHOSH B. PATIL, ADVOCATE FOR R4;
R-5 TO R7 ARE SERVED
PETITION AGAINST R-8 IS DISMISSED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED FINAL SELECTION LIST NOTIFICATION BEARING
NO.PSC/720/RTB(2)/2017-18/1344, DATED 23.09.2021 VIDE
ANNEXURE-J ISSUED BY THE 3RD RESPONDENT INSOFAR AS NON-
SELECTION OF THE PETITIONER AND SELECTION OF THE PRIVATE
RESPONDENTS HEREIN BY DECLARING THE SAME AS ILLEGAL AND
ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In these writ petitions, the petitioners are assailing the Final selection list notification dated 23.09.2021 (Annexure-J) issued by respondent No.3 selecting the private respondents to the post of Social Science Teacher as illegal and contrary to law inter alia sought for -6- NC: 2023:KHC-K:7539 WP No. 202012 of 2021 C/W WP No. 201999 of 2021 appointment of petitioners to the post of Social Science Teacher in terms of the notification dated 23.06.2017.
2. Relevant facts for the adjudication of these writ petitions are that the petitioners made applications for the post of Social Science Teacher in terms of the notification dated 23.06.2017 (Annexure-A). Pursuant to the same, the petitioners have participated in the selection process and the names of the petitioners were short listed by the respondent-KPSC as per Annexure-D. The petitioners have also stated that the petitioners have scored more marks than the private respondents herein as per Annexure-E. The respondent-KPSC has notified the provisional selection list dated 22.06.2021 (Annexure-F in W.P.No.202012/2021) but, the names of the petitioners did not find place in the provisional list. The petitioners filed objections to the provisional selection list, however, the respondent-KPSC has issued the final selection list dated 23.09.2021 (Annexure-J) notifying the selection of the private respondents despite the fact that the -7- NC: 2023:KHC-K:7539 WP No. 202012 of 2021 C/W WP No. 201999 of 2021 petitioners contended that the private respondents are not qualified to be appointed to the post in terms of the notification dated 23.06.2017 (Annexure-A). Hence, these writ petitions are filed.
3. Heard Sri.Mahesh Patil, learned counsel appearing for the petitioners, Smt.Arati Patil, learned High Court Government Pleader, Sri.Sharanabasappa K.Babshetty, Sri.R.J.Bhusare and Sri.Santosh B. Patil, learned counsel appearing for the respondents.
4. Sri.Mahesh Patil, learned counsel appearing for the petitioners argued that the petitioners have passed relevant degree in the medium of Kannada, like the private respondents herein and the names of the petitioners have been notified in the short-list as per Annexure-D however, case of the petitioners has not been considered by the respondent authorities while issuing final selecting list and therefore, non-selection of the petitioners amounts to discrimination and accordingly, sought for interference of this Court. -8-
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5. Sri.Mahesh Patil, learned counsel further invited the attention of the Court to the documents produced by the private respondents herein particularly, referring to Annexure-R12 of the statement of objections filed by respondent No.6 in W.P.No.202012/2021 and argued that the respondent authorities have appointed the private respondents though they have studied in the medium of Kannada which is contrary to the notification issued by the respondent-KPSC. In this regard, he also emphasized on the letter dated 13.07.2021 (Annexure-L in W.P.No.202012/2021) issued by Vijayanagara University stating that one of the private respondents i.e., respondent No.6 in W.P.No.202012/2021 has studied in the medium of Kannada and accordingly, sought for interference of this Court.
6. Per contra, Sri.R.J.Bhusare, learned counsel appearing for the respondent-KPSC reiterates the averments made in the statement of objections and contended that the selection process has been made in -9- NC: 2023:KHC-K:7539 WP No. 202012 of 2021 C/W WP No. 201999 of 2021 terms of the notification produced at Annexure-A and the selection process has been completed. Therefore, no interference is called for in these writ petitions. He also submitted that particulars of the selected candidates was sent to respondent No.2 herein for verification of the documents and on their instructions, the selection process has been completed and accordingly, he sought for dismissal of the writ petitions.
7. Sri.Santosh B.Patil, learned counsel appearing for the private respondents reiterates the averments made in the statement of objections and contended that though respondent No.6 has stated in the application produced at Annexure-R8 that respondent No.6 has studied in Kannada medium however, he submitted that the competent University has issued the certificate that as per Annexure- R11, the medium of instruction of respondent No.6 is in English and therefore, sought for dismissal of the writ petition.
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8. In the light of the submissions made by the learned counsel appearing for the parties and on careful examination of the writ appears, it would indicate that pursuant to the direction issued by the respondent- Government, respondent No.3-KPSC has issued notification dated 23.06.2017 inviting applications from the eligible candidates for appointment to the various posts including the post of Social Science Teacher in the second respondent-society. The petitioners as well as the private respondents have made applications for the post of Social Science Teacher in the second respondent-society. One of the conditions stipulated in the notification dated 23.06.2017 (Annexure-A) reads as follows:
"ªÀ¸w À ±Á¯ÉU¼ À ÀÄ DAUÀè ªÀiÁzsÀåªÀÄzÀ°è £Àq¸ É ÀÄwÛgÀĪÀÅzÀjAzÀ, PÀª æ ÀÄ ¸ÀASÉå 1, 5, 6, 7 gÀ «µÀAiÀÄUÀ½UÉ Cfð ¸À°¸ è ÄÀ ªÀ C¨sÀåyðUÀ¼ÀÄ ¥Àz« À AiÀÄ£ÀÄß DAUÀè ªÀiÁzsÀåªÀÄzÀ°è ªÁå¸ÀAUÀ ªÀiÁrgÀ¨ÃÉ PÀÄ, ¥Àz« À AiÀÄ°è DAUÀè ªÀiÁzsÀåªÀÄzÀ°è ªÁå¸ÀAUÀ ªÀiÁrgÀĪÀ §UÉÎ «±Àé «zÁå®AiÀÄzÀ jf¸ÁÖçgï gÀªj À AzÀ zÀÈrÃPÀÈvÀ ¥Àwæ AiÀÄ£ÀÄß ¥Àq¢ É lÄÖPÉÆAqÀÄ ªÀÄÆ® zÁR¯Áw ¥Àj²Ã®£É ¸ÀªÀÄAiÀÄzÀ°è ºÁdgÀÄ ¥Àr¸ÀvPÀ ÀÌzÀÄÝ."
(emphasis supplied)
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9. It is made clear in the notification that the eligible candidates must studied Degree in the medium of English. Though the learned counsel appearing for the petitioners contended that the names of the petitioners have been notified/short-listed as per Annexure-D, however, perusal of the writ petitions would indicate that the petitioners were graduated in Kannada medium.
10. The Hon'ble Supreme Court in the case of State of Karnataka and others vs. Smt.Bharathi S. reported in AIR 2023 SC 2792 held that mere finding place in the selection list do not create any right nor a co-relative obligation for appointment and the same is in the domain of the employer. At paragraphs-11 to 13, the Hon'ble Apex Court has held as under:
"11. The position that emerges from the above decisions is that the duty to fill up vacancies from the Additional List (waiting list) can arise only on the basis of a mandatory rule. In the absence of such a mandate, the decision to fill all the vacancies from the Additional List, is left to the wisdom of the
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NC: 2023:KHC-K:7539 WP No. 202012 of 2021 C/W WP No. 201999 of 2021 State. We will however add that State cannot act arbitrarily and its action will be subject to judicial review.
12. Returning to the facts of the present case, we are of the opinion that the High Court has committed an error in assuming the existence of a right to be appointed on the basis of Entry 66 in the Schedule to the 1967 Rules. We have seen that the Rule by itself does not create any right. Such a position is also not supported by any principle of law. Finally, the conclusion of the High Court that the Respondent was unaware of the resignation of the appointed candidate will have no bearing on the operation of the Rule. The operation of the Additional List, which is to be published in the official Gazette will depend upon the time specified in the Rule and not as per the knowledge of individual candidates.
13. In conclusion, we are of the opinion that the High Court committed an error in directing the State to give effect to the Additional List and appoint the respondent within three months from the date of the order. Under these circumstances, the Civil Appeal No.3062 of 2023 filed by the State of Karnataka stands allowed and the decision of the High Court in Writ Petition No.51904 of 2019 dated 31.01.2020 is set aside."
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11. Undoubtedly, the petitioners have studied Degree in the medium of Kannada and therefore, the petitioners have no legal right to claim appointment as the same is contrary to the notification dated 23.06.2017 (Annexure-A). The Hon'ble Supreme Court in the case of Umesh Chandra Shukla vs. Union of India and others reported in (1985) 3 SCC 721 held that the candidates acquire right only after their names are included in the list and that right cannot be defeated by enlarging the list by inclusion of other candidates who were otherwise ineligible.
12. At this juncture, it is also relevant to cite the judgment rendered in the case of K.V.Panduranga Rao vs. Karnataka Dairy Development Corporation, Bangalore and others reported in 1997 (2) Kar. L.J. 477 wherein it is held that violation of the conditions stipulated in the notification is a ground for rejection of the application.
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13. Recently, the Hon'ble Supreme Court in the case of Karnataka State Seeds Development Corporation Limited and another vs. H.L.Kaveri and others reported in (2020) 3 SCC 108 has held that if the applicant fails to enclose the relevant certificates or the incomplete applications have been made, the same cannot be accepted. At paragraphs-12 to 18, the Hon'ble Supreme Court has held as under:
"12. Under its advertisement dated 11-11-2013, it was specifically indicated that separate application should be submitted for each post accompanied with various requirements including qualification, experience, etc. and incomplete application, if any, is liable for rejection without assigning any reason. The first respondent applied for the post of Senior Assistant/Junior Assistant vide application dated 29- 11-2013. After scrutiny of the applications, the select list of backlog vacancies was published on 16-01- 2015 and it reveals from the record that impleaded third respondent in the writ petition (Smt. Priyanka A. Chanchalkar) was provisionally selected as Senior Assistant securing 64.65% marks. At the same time, the first respondent secured 65.43% marks but since the first respondent failed to submit experience
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13. The Corporation in IA No.3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally certificate/graduation certificate/birth certificate, etc.
14. It remains undisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the first respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11-11-2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment.
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15. In the given circumstances, we do not find any error being committed by the Corporation in its decision-making process while rejecting the application of the first respondent for non-fulfillment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11-11-2013.
16. That apart, the post of Senior Assistant which remained vacant, as informed to this Court, even if it is considered that there is a reasonable justification for which the certificate could not have been enclosed by the first respondent along with the application, there are several other candidates who have obtained higher percentage in qualifying examination compared to the first respondent whose applications have been rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicants for the post of Senior Assistant against the single post of women(SC) category, at least no indefensible right in the present circumstances, could have been claimed by the first respondent for her inclusion in the select list for appointment to the post of Senior Assistant. At the same time, for the post of Junior Assistant, 106 applications of the applicants were rejected by the Corporation for non-enclosing self-attested copies including that of the experience certificate and this fact has come on record that out of 10 vacancies advertised, only one post for physically handicapped
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17. The Division Bench of the High Court has relied upon the judgment in Seema Kumari Sharma vs. State of H.P. [(1998) 9 SCC 128] in extending relief to the first respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11-11-2013.
18. We would further like to observe that merely because the first respondent had approached the High Court by filing of a writ petition, that would not be sufficient to exercise jurisdiction under Article 226 of the Constitution in overreaching the rights of the candidates who were otherwise eligible for appointment."
14. Having taken note of the dictum of the Hon'ble Supreme Court referred to above, respondent-KPSC being an agency to conduct selection process must strictly follow the notification dated 23.06.2017 (Annexure-A) wherein in
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15. In that view of the matter, I am of the view that the petitioners have not made out a case for interference with regard to seeking appointment in the respondent No.2-society.
16. However, insofar as private respondents are concerned, taking into consideration the fact that respondent No.6 in W.P.No.202012/2021 has filed application as per Annexure-R8 stating that his medium of instruction is Kannada, though the said respondent has produced the certificate (Annexure-R11) issued by the Gulbarga University stating that the medium of instruction is English, however, the same would be contradictory with regard to certificate issued by Vijayanagara University produced at Annexure-L that the medium of instructions is Kannada.
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17. In that view of the matter, a direction is issued to respondent Nos.2 and 3 to strictly scrutinize the documents produced by the respective candidates and shall appoint them in accordance with law, taking into consideration that the candidates whose names find place in the provisional list shall possess Degree in the medium of instructions in English. Accordingly, the writ petitions are disposed of.
18. Respondent Nos.2 and 3 shall redo the process of selection in terms of the observations made above to ensure that the private respondents shall possess Degree in the medium of instructions in English. The said exercise shall be done within eight weeks from the date of receipt of a certified copy of this order.
Sd/-
JUDGE NB CT: SI LIST NO.: 1 SL NO.: 29