Karnataka High Court
State Of Karnataka vs Mr Syed Zohaibulla on 5 December, 2018
Bench: Ravi Malimath, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 5TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
WRIT PETITION No.11158 of 2018
CONNECTED WITH
WRIT PETITION No.21451 of 2017 (S-KAT)
IN W.P. No.11158 of 2018
BETWEEN
1. STATE OF KARNATAKA
REPRESENTED BY THE
PRINCIPAL SECRETARY,
DEPARTMENT OF FOREST,
ECOLOGY AND ENVIRONMENT,
VIDHANA SOUDHA,
BENGALURU.
2. THE PRINCIPAL CHIEF CONSERVATOR
OF FORESTS (HEAD OF FOREST FORCES)
AND APPOINTING AUTHORITY,
GOVERNMENT OF KARNATAKA,
ARANYA BHAVAN, MALLESWARAM,
BENGALURU - 560 003.
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3. THE ADDITIONAL PRINCIPAL CHIEF
CONSERVATOR FORESTS (PERSONNEL
AND RECRUITMENT),
GOVERNMENT OF KARNATAKA,
ARANYA BHAVAN, MALLESWARAM,
BENGALURU - 560 003.
4. THE CHIEF CONSERVATOR OF
FORESTS,
GOVERNMENT OF KARNATAKA,
DHARWAD CIRCLE,
DHARWAD - 580 001.
... PETITIONERS
(BY SRI I. TARANATH POOJARY, AGA)
AND
1. MR. SYED ZOHAIBULLA,
S/O. SYED HASHMATHULLA,
AGED ABOUT 30 YEARS,
RESIDING AT No.40,
4TH MAIN, CHINNAPPA GARDEN,
BENGALURU - 560 046.
2. MR. MOHAMMED TAHIR,
S/O. ABDUL WAHEED,
No.12, 4TH MAIN,
MEENA MAJID ROAD,
MATADAHALLI, R T NAGAR POST,
BENGALURU - 560 022.
... RESPONDENTS
(BY SRI SHASHIKIRAN SHETTY, SENIOR ADVOCATE
FOR SRI OMKAR KAMBI, ADVOCATE FOR R-1;
SRI D N NANJUNDA REDDY, SENIOR ADVOCATE FOR
SRI V K NARAYANA SWAMY, ADVOCATE FOR R-2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING
TO QUASH THE ORDER DATED 11/4/2017 PASSED IN
APPLICATION No.2373/2016 BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU AND PERUSE
THE SAME VIDE ANNEXURE-A AND ETC.,
IN W.P. No.21451 of 2017
BETWEEN
SRI MOHAMMED TAHIR,
S/O. ABDUL WAHEED,
AGED ABOUT 30 YEARS,
RESIDING AT No.12, 4TH MAIN,
MEENA MASJID ROAD,
MATADAHALLI,
R T NAGAR - POST,
BENGALURU - 560 032.
... PETITIONER
(BY SRI D N NANJUNDA REDDY, SENIOR ADVOCATE
FOR SRI V K NARAYANA SWAMY, ADVOCATE)
AND
1. STATE OF KARNATAKA,
DEPARTMENT OF FOREST,
ECOLOGY AND ENVIRONMENT,
VIDHANA SOUDHA,
BENGALURU - 560 001.
REP. BY ITS SECRETARY.
2. PRINCIPAL CHIEF CONSERVATOR OF FOREST,
HEAD OF FOREST FORCE
AND APPOINTMENT AUTHORITY,
ARANYA BHAVAN,
4
MALLESHWARAM,
BENGALURU - 560 003.
3. ADDL. PRINCIPAL CHIEF CONSERVATOR
OF FOREST,
GOVERNMENT OF KARNATAKA,
ARANYA BHAVAN,
MALLESHWARAM,
BENGALURU - 560 003.
4. CHIEF CONSERVATOR OF FORESTS,
DHARWAD CIRCLE,
DHARWAD - 580 001.
5. SRI SYED ZOHAIBULLAH,
S/O. SYED HASMATHULLA,
AGED ABOUT 30 YEARS,
RESIDING AT No.40, 4TH MAIN,
CHINAPPA GARDEN,
BENGALURU - 560 046.
... RESPONDENTS
(BY SRI I TARANATH POOJARY, AGA FOR R-1 TO R-4;
SRI SHASHIKIRAN SHETTY, SENIOR ADVOCATE FOR
SMT. FARAH FATHIMA, ADVOCATE FOR R-5.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ORDER DATED 11.4.2017 AT
ANNEXURE-F ISSUED BY KAT IN APPLICATION
No.2373/2016 AND ETC.,
THESE WRIT PETITIONS COMING ON FOR HEARING,
THIS DAY, RAVI MALIMATH. J., PASSED THE FOLLOWING:
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ORDER
Writ Petition No.11158 of 2018 is filed by the State- respondents before the Tribunal. The second petitioner herein initiated process for recruitment to 110 posts of Range Forest Officer in terms of the Notification dated 29.10.2014. The candidates were required to undergo Preliminary Examination for 200 marks and Final Examination for 200 marks. On the basis of the combined marks of both the examinations, selection list would be published, in the ratio of 1:2. The candidates were required to undergo physical and medical tests. The physical test included Walking Test for men for 25 kilometers to be completed within four hours. It is the case of the applicant that after completing the Preliminary and Final Examinations, the provisional merit list was published, wherein he was shown at Sl.No.12 having secured 224.25 marks. Thereafter, he appeared for the physical and medical tests on 15.10.2015. All the candidates who were present therein were asked to 6 undergo the Walking Test. Timings were recorded. After the test, the applicant was informed that he did not complete the test within the stipulated time. He accordingly made a representation explaining his problem and requesting that he may be given one more opportunity to complete the walking test. Subsequently, the provisional selection list was published on 14.01.2016. His name did not find a place therein. He filed his objections to the same. The same was rejected and a Final Notification was issued on 20.02.2016. Aggrieved by his non-selection, he approached the Karnataka State Administrative Tribunal in Application No.2373 of 2016. By the impugned order dated 11.04.2017, the second respondent therein was directed to consider the candidature of the applicant for the post of Range Forest Officer. It was directed that he be selected and his name be shown at the appropriate place in the Final Selection List. That the appointment order shall be issued one month 7 from the date of receipt of the certified copy of the order. Questioning the same, the State has filed this writ petition.
2. Sri I. Taranath Poojary, learned counsel for the petitioners, contends that the Tribunal's order is erroneous and requires to be interfered with. The only ground on which the relief was granted to the applicant was that he has passed the test in the second attempt. That the grant of a second test is erroneous. It was the applicant alone who was accorded a second test by the Tribunal. Furthermore, it was directed that if the fifth respondent therein does not come within the zone of selection, appropriate course of action shall be taken to intimate the same to him. Therefore, giving directions of such a nature is opposed to the basic principles of law. Hence, the petition be allowed by setting aside the order of the Tribunal.
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3. The same is disputed by Sri Shashi Kiran Shetty, learned Senior Counsel appearing for the counsel representing the first respondent. He contends that there is no error committed by the Tribunal that warrants interference. That the second test having been conducted in terms of the interim order granted by the Tribunal and the applicant having passed the test, the Tribunal was justified in passing the impugned order. Hence, he submits that the petition be dismissed.
4. Writ Petition No.21451 of 2017 is filed by the fifth respondent before the Tribunal. He was one of the candidates who was selected and whose name was found in the Final Selection List. In terms of the impugned order of the Tribunal, his name was sought to be deleted by substituting the name of the applicant before the Tribunal.
5. Sri D N Nanjunda Reddy, learned Senior counsel appearing for the counsel for the petitioner in Writ 9 Petition No.21451 of 2017 submits that the impugned order is unsustainable so far as the petitioner is concerned. That the Tribunal could not have displaced him on the reasons assigned by it. He supports the contentions urged by the petitioners' counsel in Writ Petition No.11158 of 2018.
6.(a) The Tribunal, while considering the plea of the applicant, took into consideration the contention of the applicant that, it is common knowledge that there would be difference in timings for different Watches. The contention of the applicant was that the road on which he was made to walk had heavy traffic which hampered his walking. That the time of commencement of the walking race was 7.20 a.m., but did not state when the applicant reached the end point and how much time he took to reach. Be that as it may, the Tribunal by an interim order dated 23-2-2017 directed the second respondent therein to give a second opportunity to the applicant to appear for 10 the Physical Endurance Test and to file a report. The test report indicated that the applicant had completed the test within the time allotted namely, he had completed the test in 3 hours 46 minutes where the upper limit was 4 hours. Therefore, it held that the applicant has passed the test in the second attempt. Under these circumstances, it held that rejection of his candidature is improper and unsustainable. Consequently, a direction was issued to select the applicant therein.
(b) On hearing learned counsels, we are of the considered view that the impugned order of the Tribunal is unsustainable. Based on the interim order granted by the Tribunal a second test was conducted for the applicant. He cleared the test. Based on the test result, the final order was passed directing the respondent to consider the candidature for appointment and to issue him an appointment order within one month. We have considered the interim order which is the basis on which the final 11 order was passed. Firstly is the fact that there was no Interlocutory application for such a relief. The interim order would indicate that only an oral submission was made by the learned Senior counsel which was considered by the Tribunal and the interim relief was granted. Therefore, in the absence of any application, the respondent therein did not have an adequate opportunity to oppose the same.
7. (a) The justification of the Tribunal to grant the second test was in view of the fact that in the Indian Forest Service there is a provision to give a second chance to the candidates for walking test. We are unable to agree with this reason. The Indian Forest Services are relatable to the Indian Services whereas the instant Recruitment is for a State wide cadre. It cannot be relatable to the case on hand. The comparison is inappropriate. The similarity as held by the Tribunal is wholly misplaced. The Indian 12 Forest Service Rules are not applicable to the instant selection.
(b) The appointment herein is governed by the relevant Cadre & Recruitment Rules and also by the Notification calling for the said tests. The Rules do not permit the second test to be conducted for persons who have failed in the first test. Therefore, what governs the instant appointment is the relevant Cadre & Recruitment Rules and the Notification calling for the posts. Any order that is passed beyond the said provisions becomes illegal.
8. That five other candidates are said to have sought for a second Physical Endurance Test. They were all rejected on the ground that the Rules or Notifications do not permit the same. Therefore, when the applications of similarly placed persons have been rejected, the question of granting a second chance to only one candidate and not to others has led to gross miscarriage of justice. 13
9. The applicant had sought for four main reliefs in the application and two alternate reliefs. The alternate relief prayed for, is for a second chance, which is not the main relief at all. It is only in the nature of an alternate prayer. There is no interim relief sought for, for a second test. That was not the case at all. Therefore, merely because an oral submission has been made, the grant of such a relief is inappropriate.
10. The learned counsel for the 1st respondent relies on the Judgment in the case of NATIONAL THERMAL POWER CORPORATION, KAHALAGAON AND OTHERS vs. NAKUL DAS AND OTHERS reported in (2004) 9 SCC 385, with reference to paras 19 & 20 to contend that a re- examination could be conducted. We are unable to accept the said contention. In the facts & circumstances of the case involved therein there were only three appellants. The dispute even though pertains to five persons, two persons were given appointments. The case of other three 14 appellants were rejected by the Board. Therefore, the Hon'ble Supreme Court directed the Board to consider the remaining candidates namely, all the three appellants. Therefore, the case of all the concerned persons were considered by the Board. However, the facts involved herein are different. Various other persons had failed the test. The Court has granted relief, only to one person and not to the others. Therefore, the aforesaid Judgment would not be applicable to the case on hand.
10. He also places reliance in the case of ASHOK ALIAS SOMANNA GOWDA AND ANOTHER vs. STATE OF KARNATAKA, BY ITS CHIEF SECRETARY AND OTHERS reported in 1992 (1) SCC 28. Therein the Hon'ble Supreme Court have held that in the given facts & circumstances of that case they were inclined to grant relief to the persons who were vigilant in making grievance and approaching the Tribunal in time. We are of the view that the said Judgment cannot be applied to the facts of this case. 15 This is not a case of a vigilant litigant coming to the Court. If the Rules permit and the affected person did not come to Court, then the matter would have been different. The facts and the law involved herein would indicate that the Rules do not provide for a second test at all. Therefore, the question of the applicant coming to the Court and the relief being granted to him is an infraction of law. Therefore, the principles as laid down in the aforesaid Judgment cannot be extended to the facts & circumstances involved herein.
11. For all the aforesaid reasons, we have no hesitation to hold that the impugned order passed by the Tribunal is unsustainable. There has been gross miscarriage of justice. Relief has been granted to the applicant which he is not entitled to either on facts or on law. There has been total misapplication of the law in ordering the second test and the consequential grant of 16 relief to the applicant. None of the reasons assigned by the Tribunal are sustainable.
Consequently, Writ Petition No.11158 of 2018 is allowed. The impugned order dated 11.04.2017, passed by the Karnataka State Administrative Tribunal, Bengaluru, in Application No.2373 of 2016, is set-aside. In view of allowing Writ Petition No.11158 of 2018, the connected Writ Petition No.21451 of 2017 is disposed off on the same terms.
Pending I.As stand rejected.
SD/- SD/-
JUDGE JUDGE
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