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Karnataka High Court · body

2017 DIGILAW 1552 (KAR)

Bharati Bhat, Advocate v. State of Karnataka

2017-11-23

K.S.MUDAGAL

body2017
JUDGMENT : 1. Heard. 2. The 2nd respondent vide Annexure 'B' dated 13th April 2017 issued Notification for direct recruitment of 60 (Sixty) posts of District Judges by inviting online applications. Pursuant to that, the petitioner applied for the said post. 3. The Notification contemplated three levels of assessment of the candidates as follows: (a) Preliminary Examination; (b) Main Examination for the candidates who qualified in the preliminary examination; (c) Viva-voce for the candidates qualified in the Main Examination at the ratio of 1:3 of the vacant posts in each category, based on their order of merit in the main examination. 4. The petitioner qualified in the Preliminary Examination conducted on 2nd July 2017. The Main Examination was conducted on 17th September 2017. In the Main Examination, as per Annexure 'D', her marks details, the petitioner secured 163 marks. In Annexure 'D' the 2nd respondent stated that though the petitioner passed in the Examination, she is not eligible for Viva-voce as she does not fall within the zone of consideration as per the Karnataka Judicial Service (Recruitment) Rules, 2004 as amended from time to time. The note in Annexure 'D' to that effect reads as follows: "NOTE: Though the candidate passed in the examination, not eligible for Viva-voce. As per the Karnataka Judicial Service (Recruitment) Rules, 2004 and Amended from time to time, such number of candidates as is equal to three times the number of vacancies notified, having regard to the number of vacancies in each reserved category, selected in the order of merit, shall be called for Viva-voce. " 5. Annexure 'E' is the print-out of the intimation dated 14th November 2017 published by the 2nd respondent on its website. Part-A of the said intimation contains the registration numbers of the candidates who have passed the competitive written examination and are eligible for Viva- voce. Part-B contains the Registration numbers of the candidates who are not eligible for Viva-voce in respect of the competitive written examination held on 17th September 2017 for selection of the posts of District Judges by direct recruitment. 6. Part-B contains the Registration numbers of the candidates who are not eligible for Viva-voce in respect of the competitive written examination held on 17th September 2017 for selection of the posts of District Judges by direct recruitment. 6. The petitioner claims that Rule 5(I)(c)(3) of the Karnataka Judicial Service (Recruitment) Rules as amended on 26th April 2016 is ultravires and unconstitutional, and seeks to quash them and Annexure 'E' on the following grounds: (I) Rule 4(1) of the 2004 Rules, prescribes that the recruitment is on the basis of aggregate marks obtained in the competitive examination and as per Rule 5(l)(a), competitive examination means written examination as well as Viva-voce. Having regard to that, the aggregate marks obtained in the written examination and the Viva-voce both shall be taken into consideration. Elimination by adopting 1:3 ratio by Rule 5(I)(c) is repugnant to Rule 4(1); (II) There is violation of principles of natural justice; (III) The action of respondent No.2 in issuing Annexure 'E' is mala fide. (IV) The required number of candidates are not called for Viva-voce in 1:3 ratio. 7. In support of her contentions, she relies upon the following judgments of Hon'ble Supreme Court: (A) K. Manjusree Vs. State of Andhra Pradesh and Another, (2008) 3 SCC 512 ; (B) Sivanandan C.T. and Others Vs. High Court of Kerala and Others, Writ Petition (Civil) No.229 of 2017 & Connected cases, disposed on 14.11.2017. 8. Sri. Veeresh R. Budihal, learned counsel for the 2nd respondent and Sri. Ravi V. Hosamani, learned Additional Government Advocate for the 1st respondent, seek to justify the impugned rule and order and contest the petitioner's claim on the following grounds: (I) The entire selection process is notified in Annexure 'B' and there is no suppression of any material; (II) The petitioner has taken examinations, participated in the selection process without taking any exception to the Rules. Hence, principle of estoppel operates against her; (III) The petitioner seeks to quash the list of eligible candidates without impleading the eligible candidates. Therefore, the petition is bad for non-joinder of necessary parties. (IV) Action of respondent No.2 in issuing Annexure 'E' is in accordance with Rule 5 of the Karnataka Judicial Service (Recruitment) Rules, 2004, as amended by the Amendment Rules 2016. Therefore, the petition is bad for non-joinder of necessary parties. (IV) Action of respondent No.2 in issuing Annexure 'E' is in accordance with Rule 5 of the Karnataka Judicial Service (Recruitment) Rules, 2004, as amended by the Amendment Rules 2016. Since the petitioner did not fall within the zone of consideration as required under Rule 5(3), her name is not included in the list of short-listed candidates; (V) The petitioner is not shown as failed candidate and the reason for her exclusion is clearly assigned in her marks details; (VI) The allegations of mala fides are totally bald. REG. Validity of Rules: 9. The Notification Annexure 'B' clearly states that the recruitments are in accordance with the Karnataka Judicial Service (Recruitment) Rules 2004, Amendment Rules of 2011, 2015 and 2016. The petitioner applied in General Merit category. There were totally 12 posts of General Merit category, which were further sub-categorised as follows: (i) Unreserved - 04 posts; (ii) Women Candidate- 03 posts; (iii) Rural Candidate - 02 Posts; (iv) Physically Challenged - 02 posts; (v) Ex-service Men - 01 post. 10. Clause 5(3) of the Notification Annexure 'B' states about the procedure for conducting the viva-voce, as follows: "5 (3) From among the candidates who are eligible for Viva-voce as per clause (2), as far as may be, such number of candidates as is equal to three times the number of vacancies notified, having regard to the number of vacancies in each reserved category, selected in the order of merit, shall be called for Viva- voce." 11. Clause 5(5) states about the eligibility of the candidates for selection as under: "(5) Selection of candidates shall be made in the order of merit on the basis of aggregate of the marks obtained in the Written Examination and Viva-voce test, subject to the Government Orders relating to reservation of posts for the Scheduled Castes, Scheduled Tribes and other backward classes." Thus, it is clear that the petitioner was made known well in advance that candidates in 1:3 ratio will be called for viva-voce in each category. 12. Rule 4 and 5 of the Karnataka Judicial Service (Recruitment) Rules, 2004 as amended upto 2016 prescribe the eligibility of the candidates, the process of competitive examination and selection. The relevant portions of the Rules are extracted below: "4. 12. Rule 4 and 5 of the Karnataka Judicial Service (Recruitment) Rules, 2004 as amended upto 2016 prescribe the eligibility of the candidates, the process of competitive examination and selection. The relevant portions of the Rules are extracted below: "4. Method of recruitment, qualification and age limit.- In respect of each cadre of posts specified in column (2) of the table below, the method of recruitment and minimum qualification, age limit, etc., shall be as specified in the corresponding entries in columns (3) and (4) thereof. Sl. No. Cadre Method of Recruitment Qualifications, age limit, etc. (1) (2) (3) (4) 1 District Judges (1) xxxxx (2) xxxxx (3) 25% of the posts in the cadre shall be filled by direct recruitment on the basis of the aggregate marks obtained in a competitive examination (written & viva voce) conducted by the High Court. By direct recruitment:- (1) xxxxx (2) xxxxx (3) xxxxx Relevant provisions of Rule 5 as amended in 2016 read as follows: "Rule 5(3): From among the candidates who are eligible for Viva-voce as per clause (2), as far as may be, such number of candidates as is equal to three times the number of vacancies notified, having regard to the number of vacancies in each reserved category, selected in the order of merit, shall be called for Viva-voce." "Rule 5(5): Selection of candidates shall be made in the order of merit on the basis of aggregate of the marks obtained in the Written Examination and Viva-voce test, subject to the Government Orders relating to reservation of posts for the Scheduled Castes, Scheduled Tribes and other backward classes." 13. As already pointed out, though the petitioner knew that only candidates qualified in the written examination will be called for the Viva-voce in only 1:3 ratio, she participated in the recruitment process without challenging the said Rules. 14. It is well settled law that once if a candidate participates in the recruitment process without any demur about the Recruitment Rules, on being unsuccessful, he/she is estopped from challenging the said Rules. 15. In Ashok Kumar and Another Vs. State of Bihar and others, (2017) 4 SCC 357 , the Hon'ble Supreme Court discussing very extensively about he case laws on the point, has held as follows: "11. The appellants participated in the fresh process of selection. 15. In Ashok Kumar and Another Vs. State of Bihar and others, (2017) 4 SCC 357 , the Hon'ble Supreme Court discussing very extensively about he case laws on the point, has held as follows: "11. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate. 12. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, this Court held that: "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same... (See also Munindra Kumar v. Rajiv Govil and Rashmi Mishra v. M.P. Public Service Commission)." The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. In Manish Kumar Shah v. State of Bihar, the same principle was reiterated in the following observations: "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court Under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in Madan Lal v. State of J. and K. MANU/SC/0208/1995 : (1995) 3 SCC 486 , Marripati Nagaraja v. Government of Andhra Pradesh and Ors. MANU/SC/8040/2007 : (2007) 11 SCC 522 , Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. MANU/SC/7287/2008 : (2008) 4 SCC 171 , Amlan Jyoti Borooah v. State of Assam MANU/SC/0077/2009 : (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines and Ors. (supra)." In Vijendra Kumar Verma v. Public Service Commission, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The Appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible. In Ramesh Chandra Shah v. Anil Joshi, candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the Respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the Respondents were disentitled to seek relief Under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that: "18. Having taken a chance of selection, it was held that the Respondents were disentitled to seek relief Under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that: "18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome." In Chandigarh Administration v. Jasmine Kaur, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey, this Court held that: "Moreover, we would concur with the Division Bench on one more point that the Appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the Appellants did not challenge it at that time. This, it appears that only when the Appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam. 13. In the present case, regard must be had to the fact that the Appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The Appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment that the interpretation of Rule 6 was not free from vagueness. There was in other words no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. There was in other words no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the Appellants by the 90:10 allocation. 14. The decision in Raj Kumar v. Shakti Raj (which was relied upon by the Appellants) involved a case where government was found to have committed glaring illegalities in the procedure. Hence, it was held that the principle of estoppel by conduct or acquiescence had no application. The decision is distinguishable. 15. In this view of the matter, the Division Bench cannot held to be in error in coming to the conclusion that it was not open to the Appellants after participating in the selection process to question the result, once they were declared to be unsuccessful....." 16. Subsequent to that, in D. Sarojakumari Vs. R. Helen Thilakom and others, in Civil Appeal Nos.8345- 8346 of 2009, disposed on 13th September 2017, the Hon'ble Supreme Court reiterating the same principles, held as follows: "(4) The main ground urged on behalf of the appellant is that Respondent No.1 having taken part in the selection process could not be permitted to challenge the same after she was unsuccessful in getting selected. The law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection." (Emphasis supplied) 17. The petitioner who is party-in-person contends that in the said cases, the selection process was totally completed and therefore, the said judgments are not applicable. 18. The ratio laid down in those judgments is that if once the candidate participates in the process of selection without questioning the wisdom of the Rules, then he/she is estopped from challenging the Rules. It is not said that the said ratio applies only on the completion of the recruitment process. Therefore, the distinction sought to be made deserves no merit. 19. It is not said that the said ratio applies only on the completion of the recruitment process. Therefore, the distinction sought to be made deserves no merit. 19. In K. Manjusree and Sivanandan's cases relied upon by the petitioner, referred to supra, it was held that once the recruitment process is commenced, in between there cannot be any change in the Rules. It was held that the Rules of game cannot be changed afterwards. That is not the case here. The criteria of selecting candidates on 1:3 ratio for Viva-voce was in 2016 Rules and the same is reiterated in Recruitment Notification to the petitioner well in advance. Therefore, the said judgments are not applicable to the facts of this case. In addition to that, perusal of para 5 of Sivanandan's case shows that the matter is referred to the Larger Bench. It is submitted that the matter is still pending in reference. For the aforesaid reasons the challenge to Rule is untenable. REG. Validity of Annexure 'E': 20. In Annexure 'E', the eligibility list for Viva-voce, 104 candidates are held eligible for taking the Viva-voce. Annexure-F the intimation shows that, Viva-voce is scheduled from 27/11/2017 to 08/12/2017. Apparently, the candidates in Part-A of Annexure-E are the interested persons. If the list is quashed in their absence, it affects their interest. 21. Despite making all the Rules clear in the Recruitment Notification, petitioner says that the principles of natural justice is denied to her, which is unacceptable. On the other hand, she seeks to bag a relief which affects the rights of 104 candidates without impleading them and without hearing them. Such relief cannot be granted without hearing those candidates. For the aforesaid reasons, the petitioner is not entitled to the relief of quashing of Annexure-E. REG. Mala fides: 22. Though the petitioner contends that the action of the respondents in issuing Annexure-E is tainted with mala fide, what is that mala fide is not stated. The allegations of mala fides are as bald as possible. Therefore, no exception can be taken to the recruitment process adopted. REG. ratio and number of candidates: 23. So far as calling of 104 candidates against 60 candidates, the petitioner has not sought any clarification from the Authority in that regard. She contends that she filed an application under the Right to Information Act and the information sought was not given to her. 24. REG. ratio and number of candidates: 23. So far as calling of 104 candidates against 60 candidates, the petitioner has not sought any clarification from the Authority in that regard. She contends that she filed an application under the Right to Information Act and the information sought was not given to her. 24. Annexure-G is the endorsement of the State Public Information Officer of the High Court on which the petitioner is relying. The perusal of the same shows that information sought by her was a request for re-totaling of the marks and giving the details of the same. That is rejected on the ground that it is not the information. That does not relate to the ratio of the number of candidates for Viva-voce. 25. Clause (c)(3) of the Notification and Rule 5(3) state that the appointing authority shall as far as may be call the candidates at 1:3 ratio for Viva-voce, having regard to the number of vacancies in each reserved categories. 26. In Dr. Vijayalakshmi Ravindranath Vs. National Institute of Mental Health and Neuro Sciences, Bangalore and others, 2000 (1) KLJ 330, it is held that there is no scope for judicial review in selections made on the basis of comparative merits of the candidates unless it is shown that the selection committee has not observed fair procedure and its selection is vitiated by extraneous or irrelevant consideration. 27. For the aforesaid reasons, the contention that for 60 posts, 104 candidates are called for Viva-voce and that vitiates the entire proceedings, is unsustainable. REG. plea of repugnancy of Rule 5(3): 28. The petitioner vehemently contends that as per the Notification under Rule, the selection shall be in the order of merit, on the basis of aggregate of the marks obtained in the written examination and Viva-voce test. Therefore, before Viva-voce test, the passed candidates cannot be eliminated by short listing. 29. In 2016 Rules, Rule 5(3) appears first, which deals with the short listing of the candidates for Viva-voce and thereafter, Rule 5(5) speaks of selecting the candidates on consideration of the aggregate marks obtained by the candidates in the written examination and Viva-voce. Rule 4(1) co-relates to Rule 5(3) and 5(5). Therefore, absolutely there is no inconsistency in those Rules. The harmonious reading of Rule 4(1), 5(3) and 5(5) leads to the conclusion that the Viva-voce to be conducted for the short-listed candidates. Rule 4(1) co-relates to Rule 5(3) and 5(5). Therefore, absolutely there is no inconsistency in those Rules. The harmonious reading of Rule 4(1), 5(3) and 5(5) leads to the conclusion that the Viva-voce to be conducted for the short-listed candidates. Then, amongst them the candidates have to be selected on the basis of the aggregate of the marks obtained in the written examination and Viva-voce in the order of merit. 30. So far as the prayer regarding the writ of mandamus, as already pointed out, other candidates are not parties to the petition. Secondly, the petitioner has not pleaded or demonstrated that fair procedure is not followed and selection is vitiated by extraneous or irrelevant consideration. Having regard to that, even that prayer is not sustainable. No grounds to interfere. Writ petition is dismissed. Sri. Veeresh R. Budhihal, the learned counsel, is permitted to file memo of appearance within four weeks.