Karnataka High Court

Karnataka Public Service ... vs State Of Karnataka on 21 December, 2021

Bench: S.Sujatha, S Vishwajith Shetty

                                1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF DECEMBER, 2021

                            PRESENT

            THE HON'BLE MRS. JUSTICE S.SUJATHA

                               AND

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                W.P.No.6680/2021 (S-KSAT)

BETWEEN:

Karnataka Public Service Commission,
Represented by its Secretary,
Udyoga Soudha,
Bengaluru-560001.                        ... PETITIONER

(By Sri A. Ravishankar, Adv.)

AND:

1.     State of Karnataka
       Represented by its
       Additional Chief Secretary,
       Department of Finance (Excise),
       Vidhana Soudha,
       Bengaluru-560001.

2.     The Commissioner of excise,
       3rd floor, T.T.M.C. 'A' block,
       B.M.T.C. Building,
       Shanthinagar,
       Bengaluru-560027.


3.     Sri Bhimashankar Sangond
       Aged 32 years,
       S/o Bhimashankar G. Sangond,
                                  2



      R/at Kulematagi,
      Bagalur Post, Sindagi Taluk,
      Vijayapura-586123.                           ... RESPONDENTS

(By Sri B.Rajendra Prasad, HCGP for R1 & R2;
    Smt. Manjula V. Achari, Adv. for R3)

      This writ petition is filed under Articles 226 & 227 of the
Constitution   of   India,    praying    to        quash   order   dated
01.03.2020 passed in application No.3444/2019 (Annexure-
A) by the Tribunal, etc.


      This petition coming on for Preliminary Hearing on B
group, this day, Vishwajith Shetty J., made the following:


                             ORDER

1. This writ petition is filed challenging the order dated

04.03.2020 passed by the Karnataka State Administrative

Tribunal, Bengaluru (for short, 'the Tribunal') in Application

Nos.3443 & 3444 of 2019.

2. Facts of the case that would be necessary for the

purpose of disposal of this petition as revealed from the

records are, respondent no.3 herein who was an applicant

to the post of Excise Guard (Men) under category-

I/KMS/PDP/Rural in pursuance of the employment

notification dated 28.02.2017, had approached the Tribunal

along with another applicant in Application Nos.3443 &

3444 of 2019 with a prayer to quash the final select list

bearing No.E(3)35/2019-20/PSC dated 30.04.2019 on the

file of the petitioner herein, and consequently, direct the

respondents therein to consider the case of the applicants

for selection to the post of Excuse Guard (Men) pursuant to

the employment notification dated 28.02.2017.

3. It is the case of respondent no.3 herein that he had

appeared for Physical Endurance Test (PET) and he was

disqualified on the ground that his chest expansion was 95

to 98 cms. and the difference of expansion was only 3

cms., whereas the requirement was 5 cms. Contending

that the applicants were physically fit and eligible for

appointment, they had approached the Tribunal and the

Tribunal had referred the applicants to KSAT Dispensary for

physical examination and after examination of the

applicants, the Medical Officer had given a report that

respondent herein who was applicant no.2 before the

Tribunal, weighed 73 Kgs. and his chest measurement was

91 to 96 cms. It is under these circumstances, the Tribunal

vide the order impugned had directed respondent no.2

herein to refer respondent no.3 herein for PET, particularly,

chest expansion measurement and if the applicant no.2

clears his chest expansion test as prescribed in the

employment notification, respondent no.2 herein shall send

a report to the petitioner herein who shall consider the

same and include the name of respondent no.3 herein in

the final select list and pass orders within three months

from the date of receipt of medical report from respondent

no.2 herein. It was also made clear that if respondent no.3

herein is appointed, his seniority shall be from the date of

his reporting for duty. However, the application of applicant

no.1 was dismissed since his medical report did not qualify

him. Being aggrieved by the said order passed by the

Tribunal, the petitioner is before this Court in this writ

petition.

4. Learned Counsel for the petitioner submits that the

Tribunal ought to have dismissed the application since the

applicants had not made all the selected candidates as

party to the proceedings, and therefore, no relief could be

granted to them. In support of his arguments, he has

placed reliance upon the judgment of the Hon'ble Apex

Court in the case of PRASHANT RAMESH CHAKKARWAR VS

UNION PUBLIC SERVICE COMMISSION & OTHERS -

(2013)12 SCC 489, and in the case of TRIDIP KUMAR

DINGAL & OTHERS VS STATE OF WEST BENGAL & OTHERS

- (2009)1 SCC 768.

5. Per contra, learned Counsel for respondent no.3 has

argued in support of the order passed by the Tribunal and

has prayed to dismiss the petition.

6. We have carefully considered the rival arguments and

also perused the material available on record.

7. It is not in dispute that the candidature of respondent

no.3 herein was rejected on the ground that he was not

physically fit as his chest expansion was below the

requirement. However, after he was re-examined by the

Medical Officer pursuant to the direction of the Tribunal, he

was found medically fit and it is under these

circumstances, the Tribunal had directed respondent no.3

to once again refer respondent no.3 herein for PET and if

he clears the chest expansion test, then respondent no.2

herein was directed to send a report to the petitioner

herein who was directed to consider the same and include

the name of respondent no.3 herein in the final select list

and pass orders within three months from the date of

receipt of the medical report of respondent no.3 herein. It

was also made clear that in case of his appointment, the

seniority of respondent no.3 herein shall be from the date

of his reporting for duty.

8. A perusal of the order passed by the Tribunal would

make it very clear that the Counsel appearing for the

petitioner herein had submitted that the final select list was

forwarded to the Government and he had no knowledge as

to whether all the selected candidates have been appointed

or otherwise. Therefore, the fact remains that as on the

date of passing of the order, the petitioner herein had not

brought to the notice of the Tribunal as to whether all the

candidates as per the final select list were appointed. It

was also not brought to the notice of the learned Tribunal

whether all the appointed candidates have reported to

duty.

9. Learned Government Pleader appearing for

respondent no.1 has fairly submitted that respondent no.3

herein has passed the PET Test pursuant to the orders

passed by the Tribunal, and thereafter, he has been

appointed as Excise Guard (Men) by the Excise Department

and his candidature has been forwarded to the petitioner

herein to include the name of respondent no.3 herein in

the final select list.

10. It is not the case of the petitioner herein that by

including the name of respondent no.3 in the final select

list, any one of the candidate who has been appointed is

likely to be displaced. Under the circumstances, the

judgments relied upon by the petitioner in Ramesh

Chakkarwar's case (supra) and Tridip Kumar Dingal's case

(supra) would not be applicable to the facts of the present

case. It is settled position of law that if any judgment has

to be relied upon as precedent, the same could be only in

the event it is applicable to the fact situation of the case on

hand. The Hon'ble Supreme Court in the case of THE STATE

FINANCIAL CORPORATION & ANOTHER VS M/S. JAGDAMBA

OIL MILLS & ANOTHER - AIR 2002 SC 834, has observed that

judgments can be relied upon as precedents, if only the same

is applicable to the fact situation of the case. In paragraph 19

of the said judgment, the Hon'ble Supreme Court has

observed as under:

"19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statues. ......."

11. It is not in dispute that the Tribunal has not granted the

prayer made by respondent no.3 herein to quash the final

select list. The Tribunal has only directed respondent no.2

herein to refer respondent no.3 for PET (chest expansion

measurement) and if he clears the said test, the report was

required to be sent to respondent no.2 herein who was

further directed to consider the same and include the name of

petitioner no.3 herein in the final select list. The State

Government being satisfied with the chest expansion report

has already appointed respondent no.3 herein to the post of

Excise Guard (Men) and has now forwarded the same to the

petitioner herein to include the name of respondent no.3 in