Karnataka High Court
The Tumkur Milk Producers vs T B Venugopal on 30 October, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
WRIT APPEAL NO. 1008 OF 2021 (S-RES)
C/W.
WRIT APPEAL NO. 1133 OF 2021 (S-RES),
WRIT APPEAL NO. 1236 OF 2021 (S-RES)
IN WRIT APPEAL NO. 1008 OF 2021:
BETWEEN:
K. MADHUSUDHAN
S/O KAVALAPPA A.
AGED ABOUT 33 YEARS
R/AT. 11TH CROSS, ASHOKNAGARA
BESIDE MANJUNATH MEDICALS
TUMAKURU-572 101
...APPELLANT
(By SRI. PRUTHVI WODEYAR, ADVOCATE)
AND:
1. THE TUMKUR MILK PRODUCERS CO-OPERATIVE
SOCIETIES UNION LTD.
NH-206, B.H. ROAD
MALLASANDRA
TUMAKURU-572 107
REPRESENTED BY ITS
MANAGING DIRECTOR
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES
ALI ASKAR ROAD
BENGALURU-560 001
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2
3. SRI. KONDAVADI CHANDRASHEKAR
PRESIDENT
THE TUMKUR MILK PRODUCERS CO-OPERATIVE
SOCIETIES UNION LTD.
NH-206, B.H. ROAD
MALLASANDRA
TUMAKURU-572 107
4. SRI. T.B. VENUGOPAL
S/O T.B. BORE GOWDA
AGED ABOUT 32 YEARS
CARE OF DR. VIJAY KUMAR
VIJAYA HOSPITAL, BANASHANKARI
TUMAKURU-572 101
...RESPONDENTS
(BY SRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI. VARUN JAYAKUMAR PATIL, ADVOCATE AND
SRI. MOHAMMED TAHIR, ADVOCATE FOR R1;
SRI. VIKAS ROJIPURA, AGA FOR R2;
SRI. DEVI PRASAD SHETTY, ADVOCATE FOR R3;
Prof. RAVI VARMA KUMAR, SENIOR COUNSEL FOR
SRI. ABHINAY Y.T., ADVOCATE FOR CAVEATOR/R4)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER
19.08.2021 PASSED BY THE HON'BLE LEARNED SINGLE JUDGE
IN WRIT PETITION No.52059/2017 IN THE INTEREST OF JUSTICE
AND EQUITY.
WRIT APPEAL NO. 1133 OF 2021:
BETWEEN:
THE TUMKUR MILK PRODUCERS
CO-OPERATIVE SOCIETIES UNION LTD.
NH-206, B.H. ROAD
MALLASANDRA, TUMAKURU-572 107
REPRESENTED BY ITS
MANAGING DIRECTOR
...APPELLANT
(BY SRI. JAYAKUMAR S PATIL, SENIOR COUNSEL FOR
SRI. MAHAMAD TAHIR A., ADVOCATE)
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3
AND:
1. T.B. VENUGOPAL
S/O T.B. BOREGOWDA
AGED ABOUT 32 YEARS
C/O DR. VIJAY KUMAR
VIJAYA HOSPITAL
BANASHANKARI
TUMAKURU-572 102
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES
ALI ASKRA ROAD
BENGALURU-560 001
3. SRI. KONDAVADI CHANDRASHEKAR
PRESIDENT
THE TUMKUR MILK PRODUCERS CO-OPERATIVE
SOCIETIES UNION LTD.
NH-206, B.H. ROAD
MALLASANDRA
TUMAKURU-572 107
4. K. MADHUSUDHAN
S/O KAVALAPPA A.
AGED ABOUT 33 YEARS
R/AT. 11TH CROSS
ASHOKNAGAR
BESIDE MANJUNATH MEDICALS
TUMAKURU-572 102
...RESPONDENTS
(BY Prof. RAVI VARMA KUMAR, SENIOR COUNSEL FOR
SRI. ABHINAY Y.T., ADVOCATE FOR CAVEATOR/R1;
SRI. VIKAS ROJIPURA, AGA FOR R2;
SRI. DEVI PRASAD SHETTY, ADVOCATE FOR R3;
SRI. PRUTHVI WODEYAR, ADVOCATE FOR R4)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO ALLOW THE APPEAL BY SETTING
ASIDE THE ORDER DATED 19.08.2021 PASSED BY THE HON'BLE
LEARNED SINGLE JUDGE IN W.P.No.52059/2017 IN THE
INTEREST OF JUSTICE AND EQUITY.
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4
WRIT APPEAL NO. 1236 OF 2021:
BETWEEN:
SRI. KONDAVADI CHANDRASHEKAR
PRESIDENT
AGED 50 YEARS
THE TUMKUR MILK PRODUCERS CO-OPERATIVE
SOCIETIES UNION LTD.
NH-206, B.H. ROAD
MALLASANDRA
TUMAKURU-572 107
...APPELLANT
(BY SRI. DEVI PRASAD SHETTY, ADVOCATE)
AND:
1. THE TUMKUR MILK PRODUCERS CO-OPERATIVE
SOCIETIES UNION LTD.
NH-206, B.H. ROAD
MALLASANDRA, TUMAKURU-572 107
RERPESENTED BY ITS MANAGING DIRECTOR
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES
No.1, ALI ASKAR ROAD
BENGALURU-560 001
3. K. MADHUSUDHAN
S/O KAVALAPPA A.
AGED ABOUT 33 YEARS
R/AT. 11TH CROSS, ASHOKNAGAR
BESIDE MANJUNATH MEDICALS
TUMAKURU-572 101
4. SRI. T.B. VENUGOPAL
S/O T.B. BORE GOWDA
AGED ABOUT 32 YEARS
CARE OF DR. VIJAY KUMAR
VIJAYA HOSPITAL, BANASHANKARI
TUMAKURU-572 101
...RESPONDENTS
(By SRI. JAYAKUMAR S PATIL, SENIOR COUNSEL FOR
SRI. VARUN JAYAKUMAR PATIL, ADVOCATE FOR R1;
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5
SRI. VIKAS ROJIPURA, AGA FOR R2;
SRI. PRUTHVI WODEYAR, ADVOCATE FOR R3;
Prof. RAVI VARMA KUMAR, SENIOR COUNSEL FOR
SRI. ABHINAY Y.T., ADVOCATE FOR CAVEATOR/R4)
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT, PRAYING TO ALLOW THE APPEAL BY SETTING
ASIDE THE ORDER DATED 19.08.2021 PASSED BY THE HON'BLE
LEARNED SINGLE JUDGE IN W.P. No.52059/2017 IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE WRIT APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 21.10.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE UMESH M ADIGA
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) These writ appeals are filed challenging the judgment dated 19.08.2021 rendered by the learned Single Judge in Writ Petition No.52059/2017.
2. W.A.No.1008/2021 is filed by respondent No.4, W.A.No.1133/2021 is filed by respondent No.1 and W.A.No.1236 is filed by respondent No.3.
3. We have heard Shri Jayakumar S. Patil, learned Senior Counsel as instructed by Shri Mohammed Tahir, learned counsel for the appellant in W.A.No.1133/2021 and
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6 as instructed by Shri Varun Jayakumar Patil learned counsel for respondent No.1 in W.A.Nos.1008/2021 and 1236/2021, Shri Pruthvi Wodeyar, learned counsel for the appellant in W.A.No.1008/2021 for respondent No.4 in W.A.No.1133/2021 and for respondent No.3 in W.A.No.1236/2021 and Shri Devi Prasad Shetty, learned counsel for appellant in W.A.No.1236/2021, for respondent No.3 in W.A.No.1133/2021 and W.A.No.1008/2021 and Prof. Ravi Varma Kumar, learned Senior Counsel, as instructed by Shri Abhinay Y.T., learned counsel for caveator/respondent No.4 in W.A.No.1008/2021 and in W.A.No.1236/2021 and also for caveator/respondent No.1 in W.A.No.1133/2021 and Shri. Vikas Rojipura, learned Additional Government Advocate for the official respondent No.2 in all the appeals.
4. It is submitted by the learned counsel appearing for the appellant that the appellant/respondent No.4 in W.A.No.1008/2021 filed a writ petition challenging the appointment of the appellant as Assistant Manager MIS in the first respondent society. The first respondent had issued a notification on 29.02.2016, inviting applications for various
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7 posts, including one for Assistant Manager MIS in the General Merit (GM) category, which required a distinction in the MCA course and two years of experience in an officer's post. The selection process involved a written examination and an interview. Five candidates, including the appellant, were short-listed for the interview held on 21.04.2017. The appellant scored 46.7 marks, leading to his appointment.
5. It is further submitted that the fourth respondent challenged the appointment and alleged in the Writ Petition that the appointment of the appellant was influenced by his close association with the third respondent, the president of the first respondent society and a member of the interview committee. It was contended that the appellant, a political disciple of the third respondent, utilized this relationship to secure a higher score in the interview, thereby overshadowing the performance of the fourth respondent, who had achieved superior marks in the written examination. The fourth respondent cited social media posts from 30.03.2016, depicting the appellant celebrating the birthday of the respondent, as evidence of their close
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8 affiliation, arguing that this connection vitiated the appointment process due to bias and legal malafides.
6. Though the appellant and the first respondent denied the allegations and contended that the writ is not maintainable, citing the availability of an alternative remedy under Section 70 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as the 'Act of 1959' for short), and asserted that the mere fact that another candidate scored higher marks in the examination does not entitle the fourth respondent to contest the appointment, the learned Single Judge accepted the vague allegations of bias and set aside the appointment.
7. It is further contended that the allegations of bias were vague and fanciful and the acquaintance of the parties was totally insufficient to arrive at any finding of legal malafides. The Selection Committee being statutory in nature, the contention that the President ought to have abstained from the selection was absurd. Further, it is stated that the committee consisted of several independent
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9 persons including a department nominee and the findings are therefore unjustified.
8. It is further contended that the Hon'ble Apex Court, in Hari Banesh Lal v. Sahodar Prasad Mahto and Others reported in (2010) 9 SCC 655, has held that the Writ Court cannot interfere with administrative decisions regarding the suitability of candidates unless there is a violation of statutory rules. In the present case, there was no such violation. Further, the decision in Dr. Duryodhan Sahu & Ors v. Jitendra Kumar Mishra & Others reported in (1998) 7 SCC 273, is relied on to contend that the learned Single Judge should not have embarked on an independent investigation into the qualifications of the selected candidate once the concerned authorities are satisfied. It is further contended that the learned Single Judge also erred in failing to follow the principle that courts should be reluctant to substitute their own views for those of experts, especially in matters of evaluating answers or selection processes.
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9. It is also contended that the learned Single Judge exceeded the prayers sought for by quashing the selection and further directing re-conduct of the selection and the appointment of the writ petitioner if no one else responds. Moreover, it is contended that the fact that mere performance in the written test does not guarantee similar performance in the viva-voce and expert assessments in the viva-voce cannot be undermined without proper material. It is contended that the appellant, who has been in service for four years since 08.05.2017, has now been thrown out without any proper reason.
10. It is further contended that the order of the learned Single Judge dated 09.06.2021 calling for the records for the selection was not justified in the light of the sketchy pleadings as to bias and legal malafides. It is contended that the scrutinizing of marks allotted by the selection committee after calling for the original records, was beyond the jurisdiction of this Court. The judgment of the Apex Court in Ran Vijay Singh and Others v. State of UP and Others reported in (2018) 2 SCC 357, Courts
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11 should refrain from substituting their views for those of experts. Additionally, the failure to provide adequate opportunity to the parties to defend their case, along with the fact that the other members of the selection committee and the other candidates who appeared in the selection were not made party to the Writ Petition constitutes a violation of natural justice. On these contentions, the judgment is sought to be challenged.
11. In support of the above contentions, the following decisions are relied on:-
• Swati Ulhas Kerkar and others v. Sanjay Walavalkar and others, reported in (2021) 14 SCC 57;
• Election Commission of India and another v.
Dr.Subramaniam Swamy and another, reported in (1996) 4 SCC 104;
• Minu Lalitha Madhavu v. University of Kerala, reported in 2018 SCC Online Ker 5710;
• Abhimeet Sinha & Others v. High Court of Judicature at Patna and others, reported in (2024) 7 SCC 262; • Srinivas K Gouda v. Karnataka Institute of Medical Science & others reported in (2022) 1 SCC 49; • Dalpat Abasaheb Solunke and others v. Dr. B.S. Mahajan and others reported in (1990) 1 SCC 305;
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12 • Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna & others reported in (2004) 6 SCC 714;
• M.V.Thimmaiah & others v. Union Public Service Commission & others reported in (2008) 2 SCC 119; • Hari Bansh Lal v. Sahodar Prasad Mahto & others reported in (2010) 9 SCC 655;
• Union Public Service Commission v. M. Sathiya Priya & others reported in (2018) 15 SCC 796;
• Commissioner of Police v. Raj Kumar reported in (2021) 8 SCC 347;
• Dr.Duryodhan Sahu & Others v. Jithendra Kumar Mishra & others reported in (1998) 7 SCC 273; • Mohd. Mustafa v. Union of India & others reported in (2022) 1 SCC 294;
• Madras Institute of Development Studies & another v. K.Sivasubramaniyan and others reported in (2016) 1 SCC 454;
• Madan Lal & others v. State of J & K and others reported in AIR 1995 SC 1088;
• Lalu Prasad Alias Lalu Prasad Yadav v. State of Jharkhand reported in (2013) 8 SCC 593;
• Indian Airlines Corporation v. Capt. K.C.Shukla and others reported in (1993) 1 SCC 17;
• Union Public Service Commission v. Hiranyalal Dev and others reported in AIR 1988 SC 1069;
• Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and another reported in (2012) 13 SCC 61;
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13 • Ran Vijay Singh and others v. State of Uttar Pradesh and others reported in (2018) 2 SCC 357;
• High Court of Tripura, through the Registrar General v. Tirtha Sarathi Mukherjee and others reported in (2019) 16 SCC 663;
• Central Board of Secondary Education through Secretary and others v. Khushboo Shrivastava and others reported in (2014) 14 SCC 523; and • Kuldip Chand v. State of H.P. and others reported in AIR 1997 SC 2606.
12. The learned senior counsel appearing for the appellant in W.A.No.1133/2021 and the learned counsel appearing for the appellant in the connected appeals supported the contentions of the appellant in Writ Appeal No.1008/2021. It is further urged that in the absence of any clear pleadings, the acceptance of the contentions as to bias by the learned Single Judge was unwarranted.
13. The learned senior counsel appearing for the first respondent - Writ Petitioner in W.A.No.1133/2021 contended that the clear pleadings of bias were un- controverted before the learned Single Judge. It is submitted that though the fourth respondent had entered appearance
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14 before the learned Single Judge, no written objections were filed and there was no appearance for the third respondent. It is further submitted that in the light of the prayer raised in the Writ Petition, the relief granted by the learned Single Judge was perfectly legal. Further, it is contended that this Court exercising its extra-ordinary original writ jurisdiction and considering a prayer for a writ of certiorari is completely within its powers in calling for the records of a selection, which is allegedly vitiated by bias and legal malafides.
14. In support of his contentions, he has placed reliance on the following judgments:-
• T.N. Seshan, Chief Election Commissioner of India v. Union of India and others reported in (1995) 4 SCC 611;
• G.N.Nayak v. Goa University & others reported in (2002) 2 SCC 712;
• Charanjit Singh and others v. Harinder Sharma and others reported in (2002) 9 SCC 732; and • P.K.K.Shamsudeen v. K.A.M. Mappillai Mohindeen and others reported in (1989) 1 SCC 526.
15. The learned Single Judge has specifically considered the question as to maintainability of the Writ
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15 Petition and has entered a clear finding that in the light of the clear language of Section 70 of the Act of 1959, the Writ Petition was maintainable. Further, on a consideration of the facts pleaded and the materials on record, the learned Single Judge came to the definite conclusion that the selection was clearly vitiated by a "real likelihood of bias"
and legal malafides. The allegations raised by the petitioners were found to be well founded on the basis of the materials relied on.
16. We have considered the contentions advanced. There is no dispute raised in the Writ Petition that the writ petitioner as well as the fourth respondent therein, who is the appellant in W.A.No.1008/2021 were qualified for appointment to the post of Assistant Manager MIS in the General Merit category. They had both applied pursuant to the Notification dated 29.02.2016. A written examination was conducted on 18.12.2016 in which, the writ petitioner secured 102 marks, which was the highest marks secured by a candidate in the examination while the selected candidate scored only 77 marks. Thereafter, interview was conducted
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16 on 21.04.2017, in which the third respondent against whom the allegations of bias are raised had participated as Chairperson of the Selection Committee. In the interview, the petitioner was given 0.5 marks by all the members of the Committee and the total marks obtained was 2.5. The appellant was given 2.5 marks by two of the interviewers and three marks by the others, taking this total to 14 and the total marks obtained to 46.7, thus, making him eligible for appointment.
17. On a consideration of these facts, the learned Single Judge came to the definite conclusion that the selection was vitiated by a real likelihood of bias. The allegation raised in the writ petition along with the clear discrepancy in the marks awarded was found to be sufficient to support an allegation of "real likelihood of bias". The learned Single Judge therefore only directed the re-doing of the selection from the stage of interview.
18. Having considered the contentions advanced, we are unable to accept the contention that the allegation of bias and malafides are so far fetched as was required to be
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17 rejected by the learned Single Judge as figments of the writ petitioners' imagination. The learned Single Judge has clearly found that the allegations of bias raised in the writ petition and the fact that the third respondent had participated in the selection were sufficient to substantiate a "real likelihood of bias" in the instant case.
19. The contentions that the non-impleading of the other members of the committee and the other participants in the interview, cannot be accepted as bias was specifically urged against the appellant in W.A.No.1236/2021 who admittedly participated in the selection as Chairman of the Selection Committee. The relief granted being only for a re- doing of the selection from the stage of interview, the non impleadment of the other candidates, who were unsuccessful in the interview, would also not be fatal at all.
20. The decisions relied on by the learned counsel for the appellants are either in cases where no bias or malafides were alleged or where the Courts, on a scrutiny of the pleadings and materials found that the allegations made were too flimsy or flighty to be taken seriously by a
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18 Constitutional Court. However, we are considering a case where a learned Single Judge of this Court, considering a writ petition, in exercise of the extra-ordinary original jurisdiction vested in this Court, found real likelihood of bias and on that basis, scrutinized the records of the selection and came to a conclusion that the allegations are well founded.
21. The contention that the order calling for the records of the selection was unjustified cannot also be accepted in the facts of this case since the learned Single Judge was considering a petition for issue of a writ of certiorari. In the instant case, the third respondent was not a high constitutional functionary to instill confidence of his impartiality in this Court. It was on considering the nature of the relationship also that the learned single Judge came to the conclusion that there is a prima facie likelihood of bias. It appears that it was to verify whether such impression was justified that the mark sheets were called for on an examination of which it was concluded that the selection was vitiated by bias. In the nature of the relief
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19 granted, we are of the opinion that no interference is called for in these intra-court appeals.
22. The appeals fail and the same are accordingly dismissed.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(UMESH M ADIGA) JUDGE cp*