Karnataka High Court
Sri Jayaramu vs The Registrar General on 4 January, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NOS.63901-63903/2016 (S-RES)
BETWEEN:
1. SRI JAYARAMU
AGED ABOUT 38 YEARS
S/O SRI BACHAIAH
R/AT HUNUGANAHALLY COLONY
MUTHEGERE POST
BASARALU HOBLI
MANDYA-571 416
(REGN. NO.BLR1600496)
2. SMT. SHOBHA
AGED ABOUT 38 YEARS
W/O SRI. BABANNA
R/AT NO.215,
ASHIRVADA NILAYA
'C' BLOCK, 9TH CROSS
4TH MAIN, GOPALA
GOWDA EXTENSION
SHIVAMOGGA-577 205
(REGN.NO.BLR 1600583)
3. SMT. MEENAKSHI
AGED ABOUT 34 YEARS
W/O DR. MAHESH
R/AT #41, 1ST CROSS
1ST 'C' MAIN, BEHIND
HARAVIJAYA APARTMENT
2
MANJUNATHA NAGAR
ITTAMADU, BSK 3RD STAGE
BENGALURU-560085
(REGN. NO.BLR1600520)
... PETITIONERS
(BY SRI.G.R.MOHAN, ADVOCATE)
AND:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
... RESPONDENT
(BY SRI.E.S INDIRESH, AGA)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO DIRECT THE RESPONDENT TO REVIEW THE
SELECTION PROCESS AND CONSIDER THE CASES OF
THE PETITIONERS WHO ARE ELIGIBLE FOR THE POST OF
CIVIL JUDGES AS IN TERMS OF NOTIFICATION DATED
28.10.2016 AT ANNEXURE-E IN ELIGIBLE CANDIDATES
ARE SELECTED AGAINST THE RESERVED QUOTA IN
VIOLATION OF THE KARNATAKA JUDICIAL SERVICES
(RECRUITMENT) RULES 2004 AND AMENDED RULES
THEREON ALSO IN VIOLATION ARTICLES 14, 15 & 16 OF
THE CONSTITUTION OF INDIA.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
Heard Sri G R Mohan, learned Advocate appearing for petitioners and Sri E.S.Indiresh, learned AGA who has taken notice on behalf of respondent and these writ petitions are disposed of at the stage of preliminary hearing by consent of learned Advocates.
2. Petitioners are practicing Advocates in the State of Karnataka and has applied to the post of Civil Judges called for by respondent by direct recruitment in terms of notification No.CJRC.1/2016 dated 01.02.2016
- Annexure-A. Preliminary examination came to be held on 06.05.2016. From amongst eligible candidates who appeared for preliminary examination, petitioners along with other eligible candidates have taken up main - final examinations. From amongst the candidates who appeared for the main examination, petitioners and 164 candidates passed in the main examination held between 9th and 10th July, 2016 and 167 candidates were declared to be eligible for Viva Voce by notification dated 18.08.2016 - Annexure-D. Petitioners were issued 4 with call letters for viva voce and same was attended to by the petitioners on 07.09.2016. Respondent by notification dated 28.10.2016 - Annexure-E declared 66 candidates as having been selected in the order of merit prepared on the basis of marks secured in the written examination and viva- voce held in July and September, 2016 notifying the names of selected candidates. Petitioners being aggrieved by the same have presented these writ petitions.
3. It is the contention of petitioners that provisions of Karnataka Judicial Services (Recruitment) Rules, 2004 (for short 'Rules') for selection of candidates for the post of Civil Judges in Karnataka have not been followed in letter and spirit; ineligible candidates have been appointed; the names found in notification dated 28.10.2016 - Annexure-E at Sl.Nos.44, 48, 51, 53, 56 & 64 are all 'men' have been selected though it was reserved for 'women'; likewise, in the quota earmarked for 'ex-servicemen', candidates at Sl.Nos.27, 29, 30 & 52 of 'GM' category have been selected; candidates at Sl.Nos.28 & 62 have attended viva-voce twice; 5 candidate at Sl.No.5 has not completed Bar examination conducted by the Karnataka State Bar Council and as such, said candidate had no eligibility to practice as an Advocate; candidate at Sl.No.62 is a Court employee appointed against the post reserved for SC Rural quota but he is not a rural candidate. On these grounds, selection of 66 candidates as notified under the notification dated 28.10.2016 - Annexure-E has been impugned in the present writ petitions.
4. Learned Additional Government Advocate Sri E.S.Indiresh having entered appearance for respondent, on instructions, has supported the impugned notification and has contended that there is no violation of Rules and as such, he has sought to sustain the same. He has also elaborated his submissions by contending that writ petitions are liable to be rejected on the ground of selected candidates having not been made as parties; this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India would not sit in the armchair of the Committee to 6 evaluate performance of the candidates or marks awarded by the selection committee and said enquiry by writ Court would be alien to sound judicial principles. In support of his submissions, he has relied upon the following judgments:
(1) (2014)1 SCC 161 CENTRAL ELECTRICITY SUPPLY UTILITY OF ODISHA vs. DHOBEI SAHOO AND OTHERS (2) (2015)3 SCC 177 KULWANT SINGH AND OTHERS vs DAYA RAM AND OTHERS (3) AIR 2007 SC 3127 RAJESH KUMAR DARIA vs RAJASTHAN PUBLIC SERVICE COMMISSION & OTHERS
5. Having heard the learned Advocates appearing for parties and on perusal of the records, it discloses that under notification dated 01.03.2016 - Annexure-A, 124 posts were notified for appointment of Civil Judges by way of direct recruitment. Out of the total 124 posts notified, Selection Committee has selected 66 candidates as per the impugned notification. 11 posts were reserved for Scheduled Caste & Schedule 7 Tribe. From amongst them, total 10 candidates have been selected under SC/ST including the posts reserved for SC Rural candidate and post reserved under Article 371J of the Constitution of India. As such, contention of the petitioners that respondent has failed to adhere to the reservation policy cannot be accepted and said ground stands rejected. In fact, impugned notification would clearly indicate that vertical and horizontal reservation notified has been meticulously followed as per the prevalent reservation policy which is also in consonance with the law laid down by Hon'ble Apex Court in the case of RAJESH KUMAR DARIA vs RAJASTHAN PUBLIC SERVICE COMMISSION & OTHERS reported in AIR 2007 SC 3127 whereunder it has been held as under:
"7 - 8. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward 8 class, may compete for non-reserved posts and if they are appointed to the non- reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide - Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996 (3) SCC 253)]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota.
Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will 9 be counted against the horizontal reservation for women. Let us illustrate by an example :
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]"
In that view of the matter, contention raised in that regard would not hold water and it stands rejected.
6. Insofar as contention regarding 'men' having been selected against quota reserved for 'women', selected list would disclose that candidates at Sl.Nos.44, 10 48, 51, 53, 56 & 64 have been selected against the quota reserved for 'women' and Government order bearing No. ¹D¸ÀÄE 34 ¸É£É¤ 95, ¨ÉAUÀ¼ÀÆgÀÄ dated 15.07.1996 would enable the appointing authority to select a 'male candidate' against the post reserved for 'women' in the event of requisite number of women candidates in the said category is not available within the zone of consideration. However, to ensure that there is no deviation insofar as reservation policy is concerned, said Government order dated 15.07.1996 has insulated or protects the reservation policy and ensures that candidates so selected should belong to same category it is reserved for . For instance, in the event of post having been reserved for category '3B- women', it cannot be diverted or transferred to 'GM' category or any other category and only candidate from '3B' category from amongst the candidates (men) are permitted or allowed to be selected. Same analogy would also extend to the post reserved for 'ex-servicemen'. It is this precise exercise which has been undertaken in the 11 instant case by the appointing authority and as such, there is no merit insofar as said contention is concerned and it stands rejected.
7. Candidates found at Sl.Nos.62 & 28 has been alleged to have attended the viva-voce twice according to the petitioners. However, circular dated 29.08.2016 issued by the Secretary, Civil Judges Recruitment Committee made available by the Additional Government Advocate during the course of arguments would clearly disclose that candidate at Sl.No 28 has attended the interview only on 07.09.2016 and candidate at Sl.No.62 has attended the interview on 13.09.2016 only. Records of Interview (viva-voce) which was held between 01.09.2016 and 14.09.2016 has also been made available by the learned Additional Government Advocate and same has been perused by this Court and it is found that these two candidates have not attended the interview twice as alleged. Hence, this Court is of the view that contention raised in that 12 regard is without any basis and it cannot be accepted. Hence, it stands rejected.
8. Candidate who has been selected at Sl.No.62
- Sri B.P.Chandraiah is a Scheduled Caste candidate and the post was reserved for SC Rural quota. Grievance of the petitioners is selected candidate is not a candidate belonging to Rural area and as such, he could not have been selected. Records made available by the learned Additional Government Advocate would clearly indicate that said candidate is from Bachihally Hobli and Head Master of Government Higher Primary School, Bachihally, has issued requisite certificate certifying thereunder that candidate Sri. B.P.Chandraiah has studied in the said school from Class 1 to Class 7, which certificate is also countersigned by Block Education Officer, Sakleshpur. As such, said contention also cannot be accepted. In fact, certificate issued by the Head Master of Swami Vivekananda High School , Lingeshwara, Vanagoor, Sakleshpur Taluk, Hassan District is to the effect that 13 certificate holder namely, candidate at Sl.No.62 in the impugned list has studied from Class 8 to Class 10 in the said school and said certificate is also duly countersigned by the Block Education Officer. These two certificates would clearly indicate that candidate at Sl.No.62 in the list belong to Schedule Caste - Rural category. Hence, contention of petitioners' counsel cannot be accepted and it stands rejected.
9. Insofar as contention regarding candidates at Sl.No.5 having not completed Bar examination conducted by the Karnataka State Bar Council cannot be accepted, inasmuch as, certificate issued by the Bar Council in favour of candidate whose name is at Sl.No.5.in the interview list would clearly indicate that she was duly certified to be an Advocate and was eligible to practice as an Advocate according to Karnataka State Bar Council. As such, said contention also cannot be accepted and it is without any merit.
10. Though petitions are liable to be dismissed in limine for non-arraying of successful candidates as 14 parties to these proceedings, said exercise was not undertaken or summarily writ petitions were not dismissed in view of valiant attempt made by the petitioners' counsel to persuade this Court to consider the same on merits also and as such, these writ petitions are considered on merit also as discussed hereinabove. Hon'ble Apex Court in the case of KULWANT SINGH vs DAYA RAM reported in (2015)3 SCC 177 has examined the effect of non-impleadment of necessary parties in the matter of selection and has held that procedural law as well as substantive law both mandates that in the absence of necessary parties, the order passed would be a nullity and does not have a binding effect. In the instant case, as observed herein above, petitioners are trying to challenge the selection of candidates at Sl.Nos.5, 27, 29, 30, 44, 48, 51, 52, 53, 56, 62 and 64 whose names are found in impugned selected list - Annexure-E dated 28.10.2016 and they ought to have been made as parties to these proceedings. On this ground namely, non-arraying of 15 selected candidates these writ petitions have to fail or it is to be held as fatal to the claim of petitioners.
11. Last but not the least, it also requires to be observed, this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India would not sit as an appellate authority and examine as to the correctness or otherwise of the conclusion arrived at by the selection authority and reassess the merit or demerit of a candidate. It is only the decision making process which will be examined by this Court and not the decision itself. If the decision making process is flawed, this Court would interfere, as otherwise not. This view is supported by the law laid down by Hon'ble Apex Court in the case of CENTRAL ELECTRICITY SUPPLY UTILITY OF ODISHA vs DHOBEI SAHOO AND OTHERS reported in (2014)1 SCC 161 whereunder it has been held that suitability or eligibility of a candidate for appointment to a post is within the domain of the appointing authority and only thing that can be scrutinized by the Court is 16 whether the appointment is contrary to the statutory provisions/rules. In the instant case, petitioners' though have made attempts to establish that selection process is flawed, they have been unable to demonstrate or establish any illegality in the decision making process adopted by respondent in selecting the candidates, calling for interference at the hands of this Court as discussed hereinabove.
For the reasons aforestated, I find no merit in these writ petitions and they stand rejected.
Sri E.S.Indiresh, learned Additional Government Advocate is permitted to file memo of appearance on behalf of respondent within six weeks from today.
SD/-
JUDGE *sp