Karnataka High Court
The State Of Karnataka vs Sri Nagendra G.K on 8 July, 2022
Bench: G.Narendar, M.G.S. Kamal
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO.577/2022 (S-KSAT)
BETWEEN:
1. THE STATE OF KARNATAKA ,
REP. BY ITS CHIEF SECRETARY
TO GOVERNMENT,
VIDHANA SOUDHA,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560001.
2. THE STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BENGALURU-560001.
3. THE STATE OF KARNATAKA,
REP. BY ITS ADDITIONAL
CHIEF SECRETARY,
FINANCE DEPARTMENT,
BENGALURU - 560001.
... PETITIONERS
(BY SMT. SHILPA S.GOGI, HCGP.)
AND:
1. SRI NAGENDRA G.K.,
2
S/O. T KONAPPA REDDY,
AGED: 32 YEARS,
COMMERCIAL TAX OFFICER,
O/O. COMMISSIONER OF
COMMERCIAL TAXES,
GANDHI NAGAR, BENGALURU-560001,
R/AT NO.18, DUO RESIDENCY,
NEAR M.M. TOWERS,
JAKKUR PLANTATION,
BELLARY ROAD,
BENGALURU-560004.
2. THE KARNATAKA PUBLIC
SERVICE COMMISSON,
REP. BY ITS SECRETARY,
UDYOGA SOUDHA,
BENGALURU-560001.
... RESPONDENTS
(BY SRI UDAY HOLLA, SENIOR ADVOCATE FOR
SRI H.B.MAHESH, ADV. FOR R1,
SRI REUBEN JACOB, SENIOR ADVOCATE FOR
SRI M.N.PAVAN KUMAR, ADV. FOR R2.)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS PERTAINING TO DETERMINATION OF ANNEXURE-A
AND APPLICATION NO 1277/2021 AND ORDER DATED 18.8.2021
PASSED BY THE HON'BLE TRIBUNAL AND PURSUE THE SAME
AND SET ASIDE THE SAME AND PERVERSE AND ARBITRARY AND
CANNOT BE CONSIDERED UNDER LAW AND ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT ORDER OF
DIRECTION TO QUASH THE ORDER DATED 18.08.2021 PASSED
BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL VIDE
ANNEXURE-A AT BENGALURU IN APPLICATION NO 1277/2021
VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR "DICTATING
JUDGMENT" THIS DAY, G.NARENDAR J, MADE THE FOLLOWING:
3
ORDER
Heard the learned Additional Advocate General along with High court Government Pleader for the petitioners, Sri Udaya Holla, learned Senior counsel for respondent No.1 and Sri Reuben Jacob, learned Senior counsel for respondent No.2 - KPSC.
2. The petitioners are the State of Karnataka by its Chief Secretary and the Secretary, Department of Personnel and Administrative Reforms and the Department of Finance by its Additional Chief Secretary.
3. The petitioners are before this Court being aggrieved by the order passed by the Tribunal in Application No.1277/2021 dated 18.08.2021. A copy of which is marked as Annexure A. By the impugned order the bench of the Tribunal was pleased to allow the application by holding that the applicant-respondent who belongs to the 3-A category was entitled to the post that fell vacant on account of one Shanthagouda G Gunaki not reporting to the post and was further pleased to direct the respondents to select and appoint the applicant to the post of Assistant Commissioner of Commercial Taxes, (Group-A), the post which 4 remained vacant on account of one Sri Shanthagouda G Gunaki who also belongs to the 3-A category not reporting to duty despite his name having found place in the select list pursuant to the recruitment notification dated 12.05.2017 and to confer all consequential benefits on the applicant - respondent herein in accordance with law.
4. The case in a nutshell is that the petitioners had issued a notification inviting application for the post of gazetted probationers in group A and group B under the recruitment notification dated 12.05.2017. The applicant-respondent underwent the process of selection and had claimed reservation under 3-A category. But on account of one Shanthagouda G Gunaki securing higher merit in the 3-A category the applicant- respondent was selected and appointed in a group B post under the GM category as a Commercial Tax Officer. That the said Shanthagouda G Gunaki having secured 1130.75 marks was selected under the 3A category. It is not in dispute that in the order of merit the respondent stands 5th having secured 1103.25 marks. That pursuant to the said select list dated 10.01.2020 certain candidates failed to report to duty nor joined service in the department in which they had been appointed on account of 5 which vacancies arose. That the selected candidate namely Shanthagouda G Gunaki who was selected as Assistant Commissioner of Commercial Taxes under the 3-A category did not complete the due process of due verification and sindhutva. Hence no appointment orders came to be issued. The names of the appointed candidates was notified in the list published on 21.05.2020 and 09.06.2020 and the name of the said Shanthagouda G Gunaki does not find a place in either of the lists. That subsequently the applicant learnt that the said candidate has been selected and appointed as an Assistant Director of Food and Civil Supplies in the 2014 gazetted probationers batch and by notification dated 06.03.2021 he has also been promoted as Deputy Director, Food and Civil Supplies. It is pertinent to note that the said candidate was successful in his attempt in both 2014 gazetted probationers examinations and the 2015 gazetted probationers examination and it appears that he has opted to continue in the appointment pursuant to his selection under the 2014 batch.
5. The case of the applicant is that on account of the vacancy which arose on account of the non filling up of the post due to the said Shanthagouda G Gunaki not completing the 6 verification process. The applicant-respondent claimed that he is entitled to the said post on account of the fact that he has also claimed reservation under the 3-A category. In view of the same the applicant-respondent submitted representations to the second petitioner i.e., the DPAR as per Annexure A11 and similar representations were also made to the third petitioner and the Commission. That one of the basis for the representation is the Government Order dated 11.4.2003. That the second petitioner without proper appreciation of the legal and factual aspects of the claim proceeded to reject the representation by endorsement dated 1.3.2021 and while issuing the endorsement reliance is placed on the Government Order dated 20.6.1995 by which it was ordered that vacancies arising on account of non reporting to duty of selected candidates will be treated as fresh vacancies and in that view the vacancy arising on account of the candidate not reporting to duty has to be considered as a fresh vacancy and to be filled up in a subsequent selection process.
6. Per contra, the applicant respondent has placed strong reliance in the case of V Shankar vs. State and others decided by the Tribunal in application No.2154/1993 dated 7.1.1995 and another similar application which came to be heard 7 and decided by the Tribunal in the case of R Shilpa vs. State and others in application No.2587/2014 dated 16.10.2015. The application has stoutly resisted before the Tribunal by the petitioners herein by contending that appointment orders have been issued pursuant to the list received from the Commission on 10.01.2020 and the appointment orders are in accordance with the provisions of Rule 11(3) of the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examination) Rules, 1997. That the said Shanthagouda G Gunaki who was selected for the post of ACCT under the 3-A category has not reported. It was also fairly admitted that he had opted for Assistant Director under the 2014 gazetted probationers batch. That there is no provision under the rules to make an appointment of the applicant to the Group A post and against the vacancy occurring on account of non reporting of Shanthagouda G Gunaki and reliance was also placed on sub-rule (3) of Rule 4 and Rule 11 pertaining to the options to be exercised with regard to the post they prefer and which stipulates that in the event of they not being selected for the post for which preference is indicated they shall not be eligible for other posts. That the said Shanthagouda G Gunaki being 8 more meritorious he was considered under the 3-A category in the residual parent cadre. Further reliance was also placed on the provisions of Rule 9(3) of the Karnataka Civil Services (Direct Recruitment by Competitive Examination and Selection) (General) (5th Amendment), Rules, 2011.
7. Sub-Rule (3) of Rule 4 and Rule 11 reads as follows:
"Sub-rule (3) of rule 4: 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."
"Rule 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;9
Provided that name of a candidate shall not be included in more than one such list."
8. Sub-rule 3 of Rule 9 of the Karnataka Civil Services (Direct Recruitment by Competitive Examinations and Selection) (General) (Fifth Amendment) Rules 2011 reads as below.
"The candidates whose name are included in the additional list prepared under sub-rule (4) of the rule 8 may be similarly appointed only in case and to the extent of candidates whose names are included in the list prepared under sub-rule (1) or (2) of rule 8 and to whom order of appointment has been issued do not assume charge of the post to which they are appointed by the appointing authority within the joining time prescribed."
Sub-rule 3 of Rule 9 was further amended on 26.09.2019 reads as below:-
"9(3) An appointing authority may appoint candidates from the additional list prepared by the Commission under sub-rule (4) or sub-rule (5) of rule 8, to the extent the candidates from the final list do not reported for duty within the specified or extended period of joining time, as the case may be. In such a case, a candidate to be assigned from the additional list shall belong to same category of 10 vertical and horizontal reservation to which the candidate who did not report for duty belonged."
9. It is further contended that the unfilled vacancies even after operation of the additional select list shall be treated as vacancies to be filled in by the next upcoming recruitment. That there is no provision to make additional select list as per the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examination) Rules, 1997. On these grounds they sought for rejection of the application. It is contended that the order of the Tribunal is bad on account of the Tribunal having not noticed that three other candidates who were above the respondent and below the said Shanthagouda G Gunaki in the order of merit. Much reliance is placed on Rule 11 and is contended that the respondent having marked his preference and in which he having been selected (Group B post) cannot seek to migrate from Group B to Group A and that merit having been determined and the final select list having been prepared and operated the vacancy ought to be treated as a fresh vacancy.
10. It is further contended that there is no provision for the preparation of any additional select list. That the 11 endorsement impugned before the Tribunal dated 1.3.2021 is perfectly in consonance with law as there is no provision for additional list in the matter of gazetted probationers selection. On these grounds the order of the Tribunal is impugned.
11. The learned High Court Government Pleader for the petitioners has pressed into service ruling of the Hon'ble Apex Court rendered in the case of Madhya Pradesh Public Service Commission vs. Manish Bakawale and others in Civil Appeal No.7721/2021 arising out of SLP (Civil) No.5792/2020.
12. The leaned High Court Government Pleader would take the Court through para 19 of the judgment which reads as under:
" 19. As noted, the selection for all the posts in the instant case were through a single advertisement and common examination. The selection process conducted by the appellant for the benefit of the departments under the government was not one post after the other on completing the entire process to the higher post. Since, a common examination was held and the common merit list was prepared, the adjustment of the candidates were based on their preference according to their order in the merit list. The respondent No.1 having declared that he 12 possessed the physical eligibility for the post of Deputy Superintendent of Police and since he had obtained the requisite marks he was selected and placed in the main selection list. It is true as indicated from the records that another Scheduled Caste candidates who had secured 892 marks had been given the post of CMO as per the preference indicated by him. When such is the process of selection, if the respondent No.1 who had made declaration about the correctness of his eligibility and secured the selection to be placed in the main list for the said post, he has to blame himself if found ineligible since his height was admittedly 162 cms. Which was in fact within his knowledge. He ought not to have exercised the preference. But having acted so at that stage, if he seeks appointment to the next preferred post and such request is accepted, it will result in displacing a candidate who having made a truthful declaration had indicated the appropriate preference, who is selected and placed in the main list. Therefore, in such circumstance, if any interference is made in the process of selection, apart from the fact that it could interfere with the administrative process would also cause hardship to the candidates who have already been appointed and are not before this Court. In the present facts and circumstances, the Rule concerned provides for a definite process, which was also depicted in the 13 advertisement calling for applications. The Rule is not under challenge. The candidate concerned had applied without demur and also furnished a declaration with regard to correctness of details provided. He cannot thereafter turn around to seek alternation of the position to the detriment of others."
13. From a reading of the above and in conjunction with paragraphs 2 and 3, the facts are clear, it was a case of the candidate who though was meritorious and eligible for consideration on account of the marks secured he could not have been selected because he failed to meet the other eligibility criteria relating to his physical height and the Hon'ble Apex Court also found fault with the High Court for having allowed and for having directed the Commission to consider him for a post which was his next preference, in other words which was earlier in the order of preference marked by him. The Hon'ble Apex Court disapproved the same as it resulted in the displacing of the candidate who had made a truthful indication and has indicated an appropriate preference and who came to be selected on account of his merit. Thirdly the Apex Court also reasoned that such displacement could interfere with the administrative process 14 and thereby cause hardship to the candidates who have already been appointed.
14. In our considered opinion, the facts narrated above and the facts of the instant case are totally at variance. In the instant case there is no displacement nor is any hardship being caused nor can the order of the Tribunal be construed as having caused any interference in the administrative process. In the case referred we have no quarrel with the proposition and the reasoning of the Hon'ble Apex Court in declining relief to a candidate. As rightly insisted by the Apex Court the candidate therein has brought about his own downfall for having preferred a post to which he otherwise was physically ineligible and which ineligibility was well within his knowledge. In the instant case there is no question of any ineligibility or displacement of any candidate. In that view of the matter, we are of the considered opinion that the said ruling is inapplicable to the facts and circumstances of the case on hand.
15. Nextly, reliance is placed on the proceedings of the Government dated 11.04.2003 and the learned HCGP for the petitioners would take us to paragraph numbered as 2 on page 15 513 to contend that if any vacancy arising out of non reporting for duty the same is to be considered as a fresh vacancy. Further reliance is also placed on the notification dated 14.8.2006 whereunder the Karnataka Civil Services (Direct Recruitment by Competitive Examinations and Selection)(General) Rules, 2006 and would take the Court through Rule 9(3) to reiterate the contention that vacancies arising on account of non reporting are to be considered as fresh vacancy. Rule 9(3) reads as under:
"9(3) If a candidate consequent upon the issue of the order of appointment, does not report for duty, the vacancy against which he was selected shall be treated as a fresh vacancy to be filled in the next or subsequent recruitment."
16. We have queried the learned Government Advocate as to whether any order of appointment has been issued to the said Shanthagouda G Gunaki as visualized in Sub-Rule (3) on which the petitioners counsel would submit that there is no material to indicate that an order of appointment has been issued to the said candidate. Reliance is placed by the petitioners on the ruling reported in (2013) 12 SCC 243. We need not delve deep into the ruling and reading of para 1 would 16 suffice as it obviates that it was a case where the candidates in the waiting list sought for appointments against two vacancies which arose on account of resignation tendered by two selected candidates implying thereby the posts were filled up and thereafter vacancies arose, which is not the case on hand. In the instant case no orders of appointment have been issued to the said Shanthagouda G Gunaki and the Hon'ble Apex Court rejected the petition as the relevant rules do not permit rather do not impose the duty on the appointing authority to make appointment from the wait list and reading of para 15 obviates any detailed discussion as the Court was considering the issue of the rights of the candidates in the wait list to be appointed against unfilled posts. In that regard the Apex Court has placed reliance on catena of decisions which are narrated in paragraphs 16, 17, 18 and 19.
17. Reliance is placed on the order of a coordinate bench headed by the then the Hon'ble Chief Justice, rendered in W.P. No.3415/1999 decided on 7.9.1999, and yet again the said order is distinguishable on facts. It is once again a case of, where the candidate was issued orders of appointment and after appointment the appointed candidate failed to report and the 17 claim of the petitioner therein to be considered was rejected on the ground that the vacancy that arose was a fresh vacancy in terms of the rules as noted supra. This is not a case where any orders of appointment has been issued and the candidate so selected has failed to report to duty.
18. A bare reading of Rule 9(3) of the 2006 Rules makes it clear that the failure to report duty must be preceded by an order of appointment. It also goes without saying that a person can report to duty only if an order of appointment is issued and only if such order of appointment is issued and thereafter the selected candidate fails to report to duty, the vacancy is to be treated as a fresh vacancy. Hence the said judgment is also distinguishable on facts. It is pertinent to note that the stages of issuance of appointment order and not reporting to duty is preceded by one more stage of verification of the testimonials by the department/employer government, and in the instant case there is no material to even suggest that the said Shanthagouda G Gunaki even participated at the stage set for verification of his testimonials.
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19. Lastly, the learned AAG appearing for the petitioners places reliance on one more ruling of the coordinate bench of this Court rendered in WP No.13599/2020. We need not dwell at length on the said order, as a bare reading of the first paragraph itself would suffice to state that the said ruling is distinguishable on facts. The coordinate bench has noted in the first paragraph itself that the vacancy against which a claim was made by the petitioner was caused on account of resignation tendered by one Sri Akash S, implying thereby that the said Akash S who was selected and appointed had reported to duty and thereafter has exited from post by tendering resignation, which further implies that the post which was once vacant and notified had subsequently been filled up, but fell vacant on account of resignation and hence the said vacancy has to be treated as fresh vacancy in terms of Rule 9(3) of the 2006 Rules.
20. Per contra, the learned counsel for the applicant- respondent would place into service the rulings in the case of V Shankar vs. State and others (which it was contended, was ultimately was affirmed by the Hon'ble Apex Court) rendered in application No.2154/1993 dated 7.1.1995 and in the case of R Shilpa vs. State and others rendered in application No. 19 2587/2014 dated 16.10.2015. It is vehemently contended that the said rulings are squarely applicable to the facts of the applicant's/respondent's case. That the said Shanthagouda G Gunaki did not even participate to complete the due process of verification of his testimonials which is mandatory and which is condition precedent for issuance of an appointment order.
21. Nextly, it is contended that the post of Assistant Commissioner was also one of the post against which the applicant has marked his preference. It is further contended that one post was reserved in favour of Category 3-A and that the applicant hails from 3-A category. That it is not in dispute that the said Shanthagouda G Gunaki had participated in the 2014 Gazetted Probationers Selection Process and pursuant to the same he was successful and has opted and has been appointed as an Assistant Director under the Gazetted Probationers 2014 batch and hence the question of him having reported to duty would not arise. It is nextly contended that the others not having approached the Court and asserted their rights, question of others being considered would not arise. The petitioner has also placed reliance on the ruling in the case of Ramesh Chand vs. State of Haryana; Jagajit Singh vs. State of Punjab. 20
22. We have heard both the counsels and have given our anxious consideration. Certain facts are not disputed i.e., (1) the candidate selected to the post of AC, Shanthagouda G Gunaki, did not even participate in the process of verification of testimonials, (2) that no order of appointment has been issued to the said Shanthagouda G Gunaki and (3) thirdly the said Shanthagouda G Gunaki had already been selected and has accepted the appointment as Assistant Director of Food and Civil Services Department pursuant to his successful participation in the selection process of the 2014 Gazetted Probationers batch. In that view, the language of Rule 9(3) of 2006 Rules, upon which much reliance is placed and is vehemently canvassed before us, leaves no doubt that a vacancy can be treated as afresh vacancy only if the non reporting is preceded by an order of appointment. The language is unambiguous. The rule commences with the following-
"If a candidate consequent upon the issue of order of appointment"
meaning thereby that the candidate who has found a place in the final select list has participated in the process of verification of his testimonials and thereafter has been issued an order of 21 appointment by the appointing authority/department and the provision next reads further as follows-
"....does not report for duty".
The use of the words "consequent upon the issue of order of appointment" is not redundant or insignificant. The non reporting relates to a person who has been issued with an order of appointment and not to a person whose name merely finds place in the final select list. The person so selected is thereafter called to appear before the appointing authority and present his testimonials and thereafter after verification of the testimonials as per rule and only thereafter his candidature is considered for appointment and thereafter an order of appointment is issued.
23. Thus the rules clearly provide that a mere mention of the name in the final select list, does not tantamount to an appointment. The process of appointment is undertaken by the appointing authority and is independent and is an exercise carried out independent of the Commission. It is more res integra that verification of testimonials is in the domain of the appointing authority. Thus any issuance of order of appointment requires to be preceded by a due process i.e., verification of the testimonials and only thereafter such order of appointment is 22 issued and if the candidate fails to report then the vacancy arising on account of such non reporting is to be construed as a fresh vacancy in terms of Rule 9(3). In the instant case the said candidate has not even participated in the due process i.e., verification of the testimonials. Hence the question of there being any order of appointment and the consequent non- reporting amounting to fresh vacancies does not arise at all. In that view of the matter, the case of the petitioner requires to be rejected.
24. The said candidate having participated in the selection process and having been failed to participate in the appointment process, a duty was cast on the Commission to consider the candidature of the other eligible candidates.
25. In V Shankar's case the facts of which are similar to the case on hand, the said applicant was fourth in the order of merit and he was preceded by one Babanna, Shivaprasad and Krishnamurthy. The said Krishnamurthy being the most meritorious was selected to the post of Assistant Commissioner. The next in merit Shivaprasad was selected to the post of Deputy Superintendent of Police and lastly the said Babanna was 23 selected to the post of Assistant Commissioner and said Shankar was selected in the Commercial Tax department. The said Krishnamurthy did not participate in the appointment process and the post remained vacant and similar representation came to be made and which was also similarly rejected and the Tribunal after appreciating the facts and the relevant rules was pleased to allow the application and directed that he be appointed as the Assistant Commissioner, in the vacant post and further directed that his seniority be counted from the date on which he was appointed in the Commercial Tax Department. The said ruling has attained finality. The said ruling has also been followed in another case of Smt. R Shilpa which arose from the 2010 gazetted probationers recruitment. The said Smt. Shilpa was selected and appointed as ACCT, but later on account of non participation in the appointment process of another candidate, who was above her in the order of merit, she made a representation to be appointed in the said post of Assistant Commissioner (Revenue) under the GM (women) category. The said case was canvassed on the lines of V Shankar's case and also in the light of the observations of the Hon'ble Apex Court in Ramesh Chand vs. State of Haryana (CWP No.7057/1988). In 24 fact, a copy of the order passed by the coordinate bench where the writ petition preferred challenging the correctness of the order in R Shilpa's case came to be dismissed as withdrawn is also placed before this Court. The Tribunal has also placed reliance on another ruling of this Court rendered in J V Nandakumar vs. State of Karnataka reported in ILR 1999 4593. After appreciating the rulings in Jagajith Singh's case and Somanna Gowda's case (AIR 1992 SC 94) and the facts in those cases and the instant case the Tribunal has rightly concluded that the instant respondent/applicant is also similarly placed as the said V Shankar and Smt. R Shilpa.
26. We have perused the facts and circumstances involved in the case of V Shankar and Smt. R Shilpa and we do not entertain even an iota of doubt that the case of the instant respondent is similar to the cases of the aforesaid applicants also. In that view of the matter, our finding that due process of appointment and process of selection are independent is buttressed by the proviso to sub-Rule (3) of Rule 11 of the 1997 Rules produced as Annexure A1. Sub-Rule 3 and the proviso to Sub-Rule 3 reads as under:
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"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 necessary that the candidate is suitable for such appointment."
27. The language employed in Rule 11 and the proviso to sub-Rule (3) clearly sets out the distinction between the selection process and the appointment process. Rule 11 speaks of list of candidates suitable for appointment. Sub-Rule (1) speaks of preparation of a separate list of the names of the candidates equal to the available number of vacancies considered. Sub-Rule (2) speaks of the Commission forwarding the list to the Government and Sub-Rule (3) speaks of consideration of such candidates for appointment to the vacancies notified in each of the services and group of the posts in the order in which their names appears in the list. The language of the proviso leaves no doubt in our mind that the appointment of the candidate is not automatic on their name 26 being found in the final select list. Sub-Rule 3 states that they shall be considered for appointment. The candidates whose names found in the final select list have a right to be considered for appointment. The proviso mandates that no candidate shall be appointed unless the Government is satisfied after such enquiry and verification as may be considered necessary that the candidate is suitable for such appointment. Thus the use of the words "no candidate shall be appointed unless the Government is satisfied" leaves no doubt in our mind that the selection process does not tantamount to an appointment and appointment process involves enquiry and verification by the Government and the Government finding the candidate suitable for such appointment.
28. In the instant case on hand it is not in dispute that the said candidate Shanthagouda G Gunaki never did participated in the appointment process or that he made himself available for such enquiry and verification nor enable the Government to assess his suitability for appointment. If that be the undisputed fact, then the contest by the Government is a no contest, as in the absence of such participation in the appointment process it is not open for the Government to 27 contend that the same amounts to a case of non reporting after appointment. The rules do not leave any scope for such ambiguity. They clearly distinguish between the selection list and the prerogative of the Government to satisfy itself about the suitability of the candidate and after holding such enquiry and verification. In that view of the matter, we are of the considered opinion that the writ petition is wholly devoid of merits and is accordingly dismissed.
There shall be no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE ykl CT-HR