Karnataka High Court

Bhagyashree Hiremath vs The State Of Karnataka on 25 February, 2022

Bench: R Natarajpresided Byrnj

                              :1:


             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

       DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                            BEFORE

           THE HON'BLE MR. JUSTICE R. NATARAJ

        WRIT PETITION NO.100010 OF 2022 (S-RES)

BETWEEN:

BHAGYASHREE HIREMATH
D/O LATE DAYANAND,
AGE 34 YEARS, R/O. C/O RAJASHEKAR GANACHARI,
NEAR TONNE BABA DARGA,
AMBIGER GALLI, GOKAK,
DISTRICT BELAGAVI-591307.
                                                  ...PETITIONER
(BY SRI. J.S. SHETTY, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       DEPARTMENT OF EDUCATION,
       M. S. BUILDING,
       BENGALURU-560001.
       BY ITS PRINCIPAL SECRETARY.

2.      APPELLATE AUTHORITY AND SECRETARY
       TO THE GOVERNMENT OF KARNATAKA
       EDUCATION DEPARTMENT,
       M. S. BUILDING, BENGALURU-560001.

3.     THE DIRECTOR
       DEPARTMENT OF EDUCATION (PRE UNIVERSITY)
       BENGALURU, 18TH CROSS,
       SAMPIGE ROAD, MALLESHWARAM,
       BENGALURU-560012.

4.     THE DEPUTY DIRECTOR
       DEPARTMENT OF EDUCATION (PRE UNIVERSITY)
       CHIKKODI, DIST BELAGAVI-591201.
                                 :2:

5.    KARNATAKA RURAL EDUCATION SOCIETY
      AINAPPUR, TALUK KAGWAD,
      DISTRICT BELAGAVI-591303.
      BY ITS CHAIRMAN.

6.    KARNATAKA RURAL EDUCATION SOCIETY'S
      COMPOSITE JUNIOR COLLEGE,
      KAGWAD, TALUK AINAPUR,
      DISTRICT BELAGAVI-591303.
      BY ITS PRINCIPAL.

7.    SRI. SIDDANTH VIDYADHAR BANAJAWAD
      WORKING AS PART TIME LECTURER IN
      KARNATAKA RURAL EDUCATION SOCIETY'S,
      COMPOSITE JUNIOR COLLEGE, KAGWAD,
      TALUK AINAPUR,
      DIST BELAGAVI-591303.
                                                    ...RESPONDENTS
(BY SRI. VINAYAK S. KULKARNI, AGA FOR R1 TO R4;
 SRI. NANDISH PATIL, ADV. FOR R5; R6-SERVED;
 SMT. PALLAVI S. PACHHAPURE, ADV. FOR R7)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DATED 2.12.2021 PASSED IN REVISION PETITION NO.24/2020
(ED/58/DGW/2020) BY THE SECOND RESPONDENT-SECRETARY,
EDUCATION DEPARTMENT GOVERNMENT OF KARNATAKA THE COPY
OF WHICH HAS BEEN PRODUCED HEREWITH AT ANNEXURE-A AND
ETC.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The petitioner has filed this petition for a writ in the nature

of certiorari to quash the order dated 02.12.2021 passed in

Revision Petition No.24/2020 by the respondent No.2 as well as

the order bearing No.PA.POO.SHI/SIBBANDI-3/DD-044/

U.HUTUMA.NU/2017-2018 dated 31.08.2019 passed by the

respondent No.3 and to declare the selection and subsequent

appointment of respondent No.7 to the post of Lecturer in

Economics at the respondent No.6 as null and void. The

petitioner has also sought for a direction to appoint the petitioner

to the post of Lecturer at respondent No.6.

2. The facts leading to filing of this writ petition are

that, the respondent No.5 is an Institution which is admitted for

grant-in-aid and therefore, the recruitment to teaching posts had

to be in accordance with the guidelines issued by the Department

of Education. The respondent No.5 issued a paper publication on

04.02.2018 inviting applications to the post of Lecturer in

Economics. In response to the said notification, the petitioner

and the respondent No.7 herein and other 30 applicants applied

as per the recruitment notification. Since, the notification was to

fill up only one post, it provided that the first five candidates in

the order of merit would be called for the interview. The first five

meritorious candidates were as follows:

    Sl.No.           Name of the candidate          Total Marks
      1.     Bhagyashri Dyanand Hiremath            1907/2400
      2.     Ratnavva Balappa Turmuri               1823/2400
      3.     Channappa Mallappa Yammera             1814/2400
      4.     Santosh Eliballi                       1754/2400


      5.     Paramesh Doddahatti                   1716/2400

3. It is stated that since Santosh Eliballi/ Santosh

Dattatreya Koli and Channappa Mallappa Yammera, who were in

the zone of consideration, did not attend the interview. Hence,

an interview was held involving the respondent No.7, who was

not in the zone of consideration. At the interview, the petitioner

was granted 70 marks, while the respondent No.7 was allotted

81 marks and respondent No.7 was selected and an appointment

order was issued, which was challenged by the petitioner before

the Appellate Authority namely the respondent No.2 herein, who

rejected the same in terms of the order dated 02.12.2021.

4. Being aggrieved by the aforesaid order, the present

writ petition is filed.

5. Learned counsel for the petitioner contended that

while selecting the candidates, the interviewing committee ought

to have considered 88% of qualifying marks and 12% of the

marks received at the interview for the purpose of determining

the selected candidate. In this regard, he relied on the following

clause contained in a Circular dated 25.07.2008:

"11. £ÉÃªÀÄPÁw ¸À«ÄwAiÀÄ ¸ÀzÀ¸ÀågÉÆ§âgÀÄ UÀjµÀÖ 25 CAPÀUÀ¼À£ÄÀ ß ¤ÃqÀ§ºÀÄzÁVzÀÝgÀÆ PÀÆqÁ MmÁÖgÉ 04 d£À ¸ÀzÀ¸ÀågÀÄ ¤ÃrzÀ CAPÀUÀ¼ÄÀ ¸ÁßvÀPÉÆÃvÀÛgÀ ¥ÀzÀ«AiÀÄ°è ¥ÀqÉzÀ CAPÀUÀ½VAvÀ ±ÉÃPÀqÀ 12 C£ÀÄß «ÄÃgÀÄªÀAw®è."

6. He further stated that the entire process of selection

is in violation of the Rules under the Karnataka Pre-University

Education (Academic, Registration, Administration and Grand-in-

aid etc.) Rules, 2006 (for short, "the Rules, 2006"), as the

respondent No.7 was called for the interview, though he was not

in the zone of consideration.

7. In response thereto, the learned Additional

Government Advocate submitted that the selection is in

accordance with the Rules and Regulations and that the

petitioner cannot assail the Rules after having participated in the

process of selection.

8. Learned counsel for the respondent Nos.5 and 6

submitted that the selection is done in accordance with the

check-list provided by the respondent Nos.1 and 3 and the

selection is done accordingly and therefore, there is nothing

amiss about the selection. He also contended that the petitioner

having once participated in the selection, cannot have any

grievance over the manner of selection. In this regard, he

referred to the judgment of the Hon'ble Supreme Court in the

case of Madan Lal and Others V. The State Of Jammu &

Kashmir and Others reported in (1995) 3 SCC 486 and he

also relied on the judgment of the Hon'ble Apex Court in the case

of Pitta Naveen Kumar and Others V.Raja Narasaiah

Zangiti and Others reported in (2006) 10 SCC 261 in support

of his contention that no candidate has a right to be considered

for selection and that strict compliance of rules of recruitment is

necessary. He submitted that the process of selection adopted in

the present was followed from a very long time and therefore the

same cannot be upset at the instance of the petitioner.

9. Learned counsel for the respondent No.7 on the

other hand submitted that the petitioner having participated in

the selection process including the interview, cannot challenge

the selection process on the ground that the process adopted at

the interview is incorrect. She also relied upon the judgment in

the case of Madan Lal (supra). She contended that respondent

No.5 has taken into consideration the Rules, 2006 and the

guidelines issued by the Karnataka Pre-University Board dated

25.07.2008 and has selected respondent No.7. Therefore, she

contended that the petitioner cannot question the validity of

Rules and the method of selection. She submitted that the

committee constituted by the interviewing committee would look

into various aspects to rate the suitability of the candidates,

which involves skill/art of teaching, confidence, interaction, vocal

skill, appearance etc., and therefore, the petitioner cannot

dispute the discretion of the selection committee and is beyond

judicial scrutiny/review. In that regard, she relied upon the

judgment of the Hon'ble Apex Court in the case of Durga Devi

and Another V. State of H.P. and Others reported in (1997)

4 SCC 575. She relied upon the decision in the case of

Baidyanath Yadav V. Aditya Narayan Roy and Others

reported in (2020) 16 SCC 799 and contended that the purpose

of holding the interview would become redundant if only the

qualifying marks is considered. In this regard, she also relied

upon the decision of the Hon'ble Apex Court in the case of

Mehmood Alam Tariq and Others V. State of Rajasthan and

others reported in (1988) 3 SCC 241.

10. I have considered the submissions made by the

learned counsel for the parties. The contention that the

respondent Nos.4 and 5 must have considered 12% of the marks

obtained at the interview and 88% of the marks obtained at the

qualifying exam, is neither found in the Rules, 2006 nor in the

Circular dated 25.07.2008. This argument is absurd and is solely

based on a misconstruction/misreading of Clause 11 of the

Circular dated 25.07.2008.

11. The Rules relating to the selection of the candidates

for teaching posts in aided Pre-University Institutions, are

prescribed in Rules, 2006.

12. Rule 17 of the Rules, 2006 details the mode of

inviting the application for the vacant post for the purpose of

recruitment and the same is extracted below:

"17. Mode of notifying a vacancy for the purpose of recruitment.- (1) A managing committee of a private aided Pre-University college may notify a vacancy which arises in accordance with Rule 16 after obtaining prior permission for doing so from the Director. The notification shall be published on the notice board of the office of the management; Pre University college concerned; the Deputy Director of Pre-University Education of the concerned district and further it shall be published in at least one leading newspaper having largest circulation in the district. The notification shall contain the description of the vacant post, caste category reservation if any, the number and date of permission to advertise accorded by the Director, the minimum qualification specified, the last date fixed for submitting the application and marks and caste certificates to be produced in support of the academic qualification and caste category.

(2) After the last date for submitting the application is over, the management shall verify particulars of all the candidates whether eligible or otherwise serially in the order of their academic merit, placing the candidate with the highest marks scored in the Post Graduation degree in

the first place. If the academic merit of more than one candidate is same, the candidate older in age shall be placed above the other. If the highest total marks prescribed for the qualifying examinations of different candidates vary, then, the managing committee shall prepare the list based on the percentage or a common denominator.

(3) For each post, five applicants in the top of the list prepared under sub-rule (2) shall be called for interview, unless the total number of applicants is less than 5, in which case all the applicants shall be called for the interview. The management shall consult the Deputy Director of the concerned district to fix a date and time for the interview of the candidates and shall conduct the interview in the premises of the concerned Pre-University College.

(4) The managing committee shall constitute a recruitment committee comprising of four members, two representing the managing committee, the third being the Deputy Director of the concerned district, unless the Director nominates someone else by a specific order and the fourth being a subject expert to be nominated by the managing committee.

(5) The candidates called for interview shall-demonstrate their ability to teach the subject and handle a class by actually delivering a lecture before a class of students of concerned college for at least twenty minutes in the presence of the recruitment committee.

(6) Each member of the recruitment committee may award a maximum of twenty-five marks and the total interview marks that can be awarded to any candidate shall not exceed twelve percent of the marks' secured in the qualifying examination.

(7) The recruitment committee shall then prepare a list of selected candidates showing the marks scored in the Post Graduation examination and the marks awarded by the recruitment committee separately and also the total marks against the name of each candidate.

(8) The recruitment committee shall prepare, in the order of merit, a panel of three selected candidates for

appointment to the post on the basis of the aggregate percentage of marks in the qualifying examination and marks scored at the interview. The managing committee shall send the appointment order to the person in the order of merit. Prior approval of the Director shall be obtained before issuing the appointment order to the selected candidate"

13. Rule 17(7) of the Rules, 2006 underwent a change

by a notification dated 27.09.2018 with effect from 11.10.2018

and after such amendment, the Rule reads as follows:

"17(7). The recruitment committee shall then prepare a list of selected candidates showing the marks scored in the Post Graduation examination out of common highest total marks and the marks awarded by the recruitment committee separately and also the total marks against the name of each candidate."

14. Contrary to the Rule 17(8) of Rules, 2006, a checklist

is issued by the respondent No.3 in Form-11 which is extracted

below:

22. ¸ÀAzÀ±Àð£ÀPÉÌ DºÁé¤¹zÀ ¥Àæw C¨sÀåyðAiÀÄ ºÉ¸ÀgÄÀ , ªÀAiÉÆÃ«Äw, «ÄÃ¸À¯Áw, «zÁåºÀðvÉ, ¸ÁßvÀPÉÆÃvÀÛgÀ ¥ÀzÀ«AiÀÄ ±ÉÃPÀqÀ CAPÀUÀ¼ÀÄ, ¸ÀAzÀ±Àð£ÀzÀ CAPÀUÀ¼À ªÀiÁ»w.

PÀæ. C¨sÀåyð d£Àä «zÁåºÀðvÉ ¸ÁßvÀPÉÆÃ 1000PÉÌ ¸ÀAzÀ±Àð£À ¸ÁßvÀPÉÆÃ µÀgÀ/ ¸ÀA AiÀÄ ¢£ÁA (¸ÁßvÀPÉÆÃ vÀÛgÀ vÀdÄð zÀ°è vÀÛgÀ ªÉÄjmï ºÉ¸ÀgÀÄ PÀ vÀÛgÀ ¥ÀzÀ« ¥ÀzÀ«AiÀÄ ªÉÄ ¤ÃrgÀÄªÀ ¥ÀzÀ«AiÀÄ / ªÀÄvÀÄÛ ªÀÄvÀÄÛ °è ¥ÀqÉzÀ ªÀiÁr MlÄÖ % DzsÀåvÉ/ eÁw/ ©.Er. MlÄÖ zÀ CAPÀUÀ¼ÀÄ (±ÉÃPÀqÀ) PÀæªÀiÁA ¥Àæ ¥ÀzÀ«) CAPÀUÀ¼ÀÄ CAPÀUÀ (100PÉÌ) CAPÀ PÀ ªÀUÀð ªÀÄvÀÄÛ ¼ÀÄ ªÀÄvÀÄÛ ±ÉÃPÀqÀ ªÀÄvÀÄÛ ¸ÀAzÀ±Àð£À CAPÀUÀ¼ÀÄ (1000PÉÌ zÀ MlÄÖ 12%) CAPÀUÀ¼ÀÄ 1 2 3 4 5 6 7 8 9

15. In the present case, as stated earlier, the

recruitment was to fill up one post of Lecturer in Economics and

therefore, in accordance with the Rule 17(3), only five most

meritorious candidates had to be called for interview. Therefore,

the respondent No.7 was never in the zone of consideration as

the marks obtained by him in the qualifying examination was far

less than the first five meritorious candidates. It may be that the

two candidates who were called for the interview did not attend

the interview but that did not justify the respondents to call

respondent No.7 for interview.

16. Be that as it may, the recruitment committee was

supposed to prepare a list of selected candidates in order of

merit in post-graduation examination out of the common highest

total marks and the marks awarded by the recruitment

committee separately and also the total marks against the name

of each candidate.

17. A perusal of the Rules, 2006 as it existed at the time

of the recruitment notification clearly indicated that the marks

secured at the qualifying examination + the marks secured at

the interview should be tabulated and the candidates should be

declared selected based on merit. This would therefore mean

that the petitioner who had secured 1907 marks out of 2400

marks + 70% marks at the interview was the most meritorious

candidate as against respondent No.7, who had secured 1710

marks at the qualifying examination + 81% marks at the

interview.

18. Contrarily, the respondent Nos.4 and 5 instead of

taking the total marks secured at the qualifying examination,

have taken the percentage of marks of qualifying exam and

added to it the marks awarded at the interview. (Emphasis

supplied by Court). The respondents must have either taken the

total marks at the qualifying exam and the interview or the

respective percentage. They could not have taken the percentage

of marks of the qualifying exam and added to it the marks

awarded at the interview. If percentage of both was accepted,

even then the petitioner was entitled to be selected. The same is

evident from the below:

Marks at Percentag Mark Percentag A+C B+D qualifyin e s at e based g exam inter on view average of marks awarded by four interview ers A B C D Petitioner 1907 79.54% 70 17.5% 1977 96.95 % Responden 1710 71.25% 81 20.25 1791 91.5% t No.7

Under the circumstances, the respondent Nos.4 and 5 have

committed an error in determining the respondent No.7 as the

selected candidate.

19. The decisions relied upon by respondent Nos.4, 5 and

7 are not applicable as the petitioner has neither challenged the

notification nor the rules or the way in which the interview was

held or conducted. She has only challenged the way in which the

meritorious candidate was declared for the purpose of selection.

This procedure adopted by respondent Nos.4 and 5 was in stark

contrast with the procedure prescribed which was really not in

line with the Rules, 2006 and therefore, it was the petitioner who

was the meritorious candidate who was entitled to be selected.

20. In that view of the matter, the impugned order

selecting respondent No.7 is without any basis and the same is

liable to be set aside. Hence, the following order is passed: