Karnataka High Court
Kanakappa S/O Duragappa vs Rajesh B S/O Obayya B on 21 November, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2023:KHC-D:13599-DB
WA No. 100637 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO. 100637 OF 2023 (S-RES)
BETWEEN:
KANAKAPPA S/O DURAGAPPA,
AGE. 24 YEARS, OCC. PEON,
R/O. ADAVI BHAVI, POST. NEERALAKERI,
TQ. LINGASGUR, DIST. RAICHUR, PIN-584122.
... APPELLANT
(BY SRI. HEMANTHKUMAR L. HAVARAGI, ADVOCATE)
AND:
1. RAJESH B. S/O OBAYYA B.,
AGE. 29 YEARS, OCC. UNEMPLOYED,
R/O.NO.136, SULADAHALLI, TQ. KUDLIGI,
SHIVAKUMAR DIST. BALLARI, PIN-583123.
HIREMATH
2. THE PRL. DISTRICT AND SESSION JUDGE,
Digitally signed
by SHIVAKUMAR BALLARI, DIST. BALLARI-583126, PIN-583231.
HIREMATH
Date: 2023.12.05
10:55:09 +0530 ... RESPONDENTS
(BY SRI. N.R. KUPPELUR, ADVOCATE FOR C/R1;
SRI. JAGADISH PATIL, ADVOCATE FOR R2)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO, SET-ASIDE THE ORDER DATED.
31/10/2023 PASSED IN W.P.NO.112724/2019 BY THE SINGLE JUDGE
OF THIS HON'LE HIGH COURT AND ALLOWTHE WRIT APPEAL, IN THE
INTEREST OF JUSTICE.
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NC: 2023:KHC-D:13599-DB
WA No. 100637 of 2023
THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, S.SUNIL DUTT YADAV J., DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is filed by Sri.Kanakappa S/o.Durgappa challenging the order passed in W.P.No.112724/2019, whereby the petition filed by Sri.Rajesh B. S/o.Obayya B. challenging the appointment of the appellant herein as Peon has been set aside.
2. The parties are referred to by their rank in the writ petition.
3. Sri.Rajesh has filed the writ petition contending that the selection of the second respondent was illegal as that the petitioner's marks in the interview is higher than that of the second respondent though he has not been selected. The records relevant to the selection process were summoned by the learned Single Judge, who has passed the detailed order in which the learned Single Judge has recorded a finding upon scrutiny of the original records pertaining to selection is that while finalizing the selection list, the score of the second respondent in the -3- NC: 2023:KHC-D:13599-DB WA No. 100637 of 2023 interview was wrongly mentioned as 7.30 instead of 6 marks [see paragraph No.6].
4. It is further held by the learned Single Judge that the marks in the 7th Standard was only for the purpose of short listing to be prepared of eligible candidates for the viva. The learned Single Judge has also referred to the contention of the second respondent regarding the alleged discrepancies in the marks of the 7th Standard relating to the petitioner and has however, observed that the marks secured in 7th Standard would not be of much relevance and is only taken note of for the purpose of short listing candidates for the interview. It is held that the only qualification is that the candidate must have cleared 7th Standard and subsequently it is the interview marks that would be taken note of for the purpose of final selection.
5. While holding that in the interview the petitioner has scored 7.30 marks, whereas the second -4- NC: 2023:KHC-D:13599-DB WA No. 100637 of 2023 respondent has scored 6 marks in the interview, on such ground the appointment of the second respondent was set aside; though there was some protection regarding the service benefits till the second respondent had worked, said order is called in question by the second respondent before this Court.
6. This Court, by order dated 08.11.2023, had directed summoning of original records relating to selection of Group-D employees; pursuant to such direction, the original records have been placed before this Court.
7. Learned counsel for the second respondent has contended that the marks declared in viva is in terms of Annexure-F, notification dated 16.07.2019, in terms of which the marks of the second respondent was 7.50, whereas the marks of petitioner was shown as 7.30. Accordingly, it is submitted that in terms of Annexure-F, the marks allotted in viva ought to have been accepted. It is further submitted that the various discrepancies relating -5- NC: 2023:KHC-D:13599-DB WA No. 100637 of 2023 to the marks card of the petitioner at Annexure-A, which is the marks card produced at the time of selection is contrary to the academic records of the petitioner produced along with the memo filed before this Court, various other contentions have been raised regarding the correctness of the 7th Standard certificates produced by the petitioner. Learned counsel for the second respondent has specifically submitted that there is discrepancy even regarding the year of passing of 7th Standard on the basis of records produced by him along with the memo for production of documents before this Court.
8. Learned counsel appearing for the petitioner, however, would submit that the learned Single Judge had summoned for the original records and the viva marks were noticed, in which the petitioner had scored 07.30 out of 10, while the second respondent has scored 6 marks out of 10 and accordingly, the marks at Annexure-F cannot have precedence over the original records containing the viva marks. It is submitted that the said -6- NC: 2023:KHC-D:13599-DB WA No. 100637 of 2023 finding being one of fact by the learned Single Judge on perusal of the original records, the said finding cannot be assailed at this stage. It is also contended that if at all the second respondent has any grievance regarding the correctness of the records of the petitioner, the same cannot be a subject matter of the present proceedings.
9. Learned counsel Sri.Jagadish Patil appearing on behalf of the selection authority, has placed the original records and submits that the original records speaks for itself and submits that the marks at Annexure-F appears to be bonafide mistake as the marks in the original records have not been correctly reflected in Annexure-F.
10. Heard both sides.
11. Insofar as the selection process is concerned, in terms of the notification, copy of which is produced at Annexure-B, the selection process, as detailed, provides that the marks of the candidates will be of relevance for purpose of short listing candidates to the interview in the -7- NC: 2023:KHC-D:13599-DB WA No. 100637 of 2023 ratio of 1:10. It is further to be noticed that the selection, however, will be on the basis of the marks in the interview/viva. The relevant extract of the notification is extracted as below:
DAiÉÄÌAiÀÄ «zsÁ£À :
CºÀðvÁ ¥ÀjÃPÉëAiÀÄ°è UÀ½¹gÀĪÀ MlÄÖ ±ÉÃPÀqÁªÁgÀÄ CAPÀUÀ¼À DzsÁgÀzÀ ªÉÄÃ¯É 01 ºÀÄzÉÝUÉ 10 C¨sÀåyðUÀ¼ÀAvÉ Cw ºÉZÄÀ Ñ CAPÀ ¥ÀqÉzÀ C¨såÀ yðUÀ¼À£ÄÀ ß (¸ÀA§A¢ü¹zÀ «ÄøÀ¯ÁwAiÀÄ£ÀÄß ¥ÀjUÀt¹) ¥ÀæPn À ¹gÀĪÀ ºÀÄzÉÝUÀ½UÉ C£ÀÄUÀÄtªÁV ¸ÀAzÀ±Àð£ÀPÌÉ PÀgÉAiÀįÁUÀĪÀÅzÀÄ. ¸ÀAzÀ±Àð£ÀzÀ°è UÀ½¹zÀ CAPÀUÀ¼À DzsÁgÀzÀ ªÉÄÃ¯É DAiÉÄÌ ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ.
n¥ÀàuÉ:- ¸ÀAzÀ±Àð£ÀªÀÅ 10 CAPÀUÀ¼À£Æ É ß¼ÀUÆ É ArgÀÄvÀÛzÉ.
12. Insofar as the 7th Standard marks qualification is concerned, the petitioner produced marks card which indicates that he has cleared the 7th Standard. As regards the viva marks, the finding of the learned Single Judge upon perusal of the records has been subjected to the scrutiny once again by this Court by calling for original records; viva marks clearly indicates that the petitioner has got marks in viva of 7.30 out of 10 and the marks of the second respondent is 6 out of 10. The relevant entries from the record of interview conducted to the post of Peon -8- NC: 2023:KHC-D:13599-DB WA No. 100637 of 2023 which constitutes the viva-voce records is extracted below:
Sr Application No. Applicant Name Reservation Marks Marks Marks Total No obtained obtained obtained in Marks in in Physical obtained GK(Max.M language Fitness out of 10 arks-4) (i.e., and Reading readiness and to work in Writing the post Max.Mark (Max s-4) Marks-2) 78 BLY1913GDP000192 RAJESHA B Male ST Rural KAN 02.3 03 02 07.30 80 BLY1913GDP002193 KANAKAPPA Male ST Rural KAN 02 02 02 06.00
13. The record at Annexure-A is the marks card of the petitioner which is also stated to have been submitted during the selection process. The marks secured in terms of the marks sheet at Annexure-A is 577.98 which tallies with the marks of 7th std. as recorded during the selection process. Insofar as the contention raised regarding discrepancies in the marks card of the petitioner relating to 7th Standard in specific as regards to the year of passing and marks mentioned in the records produced at Annexure-A during the selection process, the same cannot be a subject matter of enquiry in the writ filed by the petitioner in light of the marks card at Annexure-A which is to be accepted unless the contrary is proved through -9- NC: 2023:KHC-D:13599-DB WA No. 100637 of 2023 appropriate proceedings. The question of considering I.A.3/2023 seeking summoning of records from the education authorities cannot be entertained as that would enlarge the scope of the present proceedings and is accordingly rejected. It is needless to state that the said aspect is a matter left open to be adjudicated if proceedings in that regard are initiated.
14. We do not find any reason to interfere with the order of the learned Single Judge, the original viva-voce records should prevail, the entry at Annexure-F cannot be contrary to the original viva records containing marks allotted to candidates. Accordingly, what should gain precedence is the original marks in the viva as maintained in the records referred to above. Clearly it is required to be observed that Annexure-F has been prepared in a slipshod manner and the selecting authority could not have committed the mistake of entering the wrong viva marks which does not inspire confidence in the selection process. It is also to be noticed that on perusal of the
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NC: 2023:KHC-D:13599-DB WA No. 100637 of 2023 original viva-voce records, there are other candidates, who have secured more marks than the second respondent in the viva, the details of said marks of candidates who had applied in ST category and have scored more marks than that of the second respondent are extracted as below:
Sr Application No. Applicant Name Reservation Marks Marks Marks Total No obtained obtained obtained Marks in in in obtained GK(Max. languag Physical out of 10 Marks-4) e (i.e., Fitness Reading and and readiness Writing to work in Max.Mar the post ks-4) (Max Marks-2) 71 BLY1913GDP000462 KANAKACHALA Male ST Rural KAN - - - Ab. 72 BLY1913GDP000258 PURUSHOTTAM Male ST Rural KAN - - - Ab. 73 BLY1913GDP001993 S MALLIKARAJUNA Male ST Rural KAN 02 02 02 06.00 74 BLY1913GDP000557 MAHESH Male ST Rural KAN 02 03 02 07.00 75 BLY1913GDP002945 SANDEEPA D Male ST Rural KAN 02 03 01 06.00 76 BLY1913GDP001855 NAGARAJA N Male ST Rural KAN 01.5 03 1.5 06.00 77 BLY1913GDP002312 K MANJUNATHA Male ST Rural KAN 01.7 03 02 06.70 78 BLY1913GDP000192 RAJESHA B Male ST Rural KAN 02.3 03 02 07.30 79 BLY1913GDP000750 DATTU PATIL Male ST Rural KAN 01 04 01.5 06.50 80 BLY1913GDP002193 KANAKAPPA Male ST Rural KAN 02 02 02 06.00
15. Accordingly, we find no reason to interfere with the order of the learned Single Judge and the writ appeal is dismissed and the order of the learned Single Judge is affirmed, consequently, the interim order is discharged.
16. In the light of the disposal of the appeal, pending applications do not survive for consideration.
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NC: 2023:KHC-D:13599-DB WA No. 100637 of 2023
17. As observed above all contentions regarding correctness of the marks of the second respondent are kept open.
18. The records made available by the respondent No.2 are directed to be returned to Sri. Jagadish Patil, learned counsel for appellant after obtaining necessary acknowledgement.
Sd/-
JUDGE Sd/-
JUDGE BSR