Karnataka High Court

Ashok S/O Kallappa Shivoor vs The Government Of Karnataka And ... on 21 June, 2022

Bench: S.Vishwajith Shetty

                                              WP 202591/2015

                               -1-



               IN THE HIGH COURT OF KARNATAKA
                      KALABURAGI BENCH

            DATED THIS THE 21ST DAY OF JUNE 2022

                              BEFORE

        THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

                 W.P.No.202591/2015 (S-RES)
BETWEEN:

Ashok, S/o Kallappa Shivoor,
Roll No.2014142,
Age: 26 years,
Occ: Unemployed,
R/o Karajagi, Tq. Afzalpur,
Dist. Kalaburagi.                         ...PETITIONER

(By Sri S.S.Halalli, Adv.)

AND:

1.     Deleted vide Court Order
       dated 23.01.2017.

2.     Deleted vide Court Order
       dated 23.01.2017.

3.     The Member Secretary,
       Recruitment Committee
       and Managing Director,
       Yadgir and Kalaburagi,
       District Central Co-operative
       Bank, Kalaburagi - 585 104.

4.     Malakayya,
       Aged about 28 years,
                                                   WP 202591/2015

                               -2-



      Occ: Second Division Clerk,
      Roll No.2014144, DCC Bank,
      Kalaburagi - 585 104.

5.    The Yadgiri and Kalaburagi
      District Central Co-operative
      Bank, Rep. by the Managing
      Director, Jagat Circle,
      Super Market Road,
      Kalaburagi - 585 104.                      ...RESPONDENTS

(Amended vide Court Order dated 27.04.2017)

(By Sri Gourish S.Khashampur, Adv. for R-3 & R-5;
    Sri Ganesh S.Kalburgi, Adv. for R-4)


      This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to direct R-3 to furnish the
interview marks list and final select list of SDC made pursuant to
the notification dated 03.08.2012 and written test dated
27.10.2014.

      This petition coming on for Preliminary Hearing 'B' Group,
this day, the Court made the following:

                             ORDER

1. The instant writ petition has been filed seeking a writ of

mandamus directing respondent no.3 to furnish the interview

marks list and final select list of Second Division Clerks (SDC)

issued pursuant to the notification dated 03.08.2012 vide

Annexure-H and the written test dated 27.10.2014. The WP 202591/2015

petitioner has further sought to quash the selection of

respondent no.4 as SDC made pursuant to the notification dated

03.08.2012 and the written test dated 27.10.2014.

2. Brief facts of the case as revealed from the records are,

the petitioner, who claims to be a graduate, had applied to the

post of SDC pursuant to the notification at Annexure-H dated

03.08.2012 issued by respondent no.5. The selection for the

post of SDC was based on objective type written examination

and interview. The written examination consisted of two papers

which totally carried maximum marks of 200 i.e., 100 marks in

each paper which included five marks for interview in each

paper. Respondent no.4 had also submitted his application

seeking appointment to the post of SDC. The written

examination was conducted by the respondents on 27.10.2014.

3. It is the case of the petitioner that he had totally scored

115 marks out of 200 in the written examination, while

respondent no.4 had scored only 91 marks. The petitioner had

also appeared for the interview that was held after the written WP 202591/2015

examination on 03.01.2015, and thereafter, the final selection

list was issued notifying fourth respondent's name who had

totally scored 107.35 marks as against 106.75 marks scored by

the petitioner. It is the case of the petitioner that though initially

the interview marks was fixed as five marks in each paper,

subsequently, respondent no.3 has changed the same so as to

favour respondent no.4, and out of 200 marks, 30 marks was

allocated for interview. The petitioner was awarded only '9'

marks out of 30, whereas respondent no.4 was awarded '30' out

of 30 for interview, and therefore, even though the petitioner

had scored higher marks in the written examination than

respondent no.4, respondent no.4 was selected to the post of

SDC under General Merit (Rural) quota. It is under these

circumstances, the petitioner has approached this Court.

4. Learned Counsel for the petitioner submits that when the

notification calling for applications was issued in the year 2012,

the then prevailing rules/guidelines provided only '5' marks for

interview, whereas subsequently, the same has been changed

on 22.08.2013 and out of 100 marks, 15 marks was allocated WP 202591/2015

for interview in each paper. He submits that since the selection

process had already commenced in the year 2012, the

respondents could not have changed the maximum marks that

was fixed for interview and such a change made has adversely

affected the petitioner. He submits that though the petitioner

had scored higher marks than respondent no.4 in the written

examination, he was not selected as he was awarded less marks

in the interview. He has relied upon the judgment of the Hon'ble

Supreme Court in the case of K.MANJUSREE VS STATE OF

ANDHRA PRADESH & ANOTHER - (2008)3 SCC 512 , and

submits that the rules of the game cannot be changed after the

selection process has commenced. He has also relied upon the

judgment of this Court in the case of SRI JAGADISH PATIL VS

THE STATE OF KARNATAKA & OTHERS - ILR 2007 KAR 4266, in

support of his contention that respondent no.3-Bank is a State,

and therefore, the writ petition is maintainable. Further, he has

relied upon the decision of the Hon'ble Supreme Court in the

case of AKALAKUNNAM VILLAGE SERVICE CO-OP. BANK LTD. &

ANOTHER VS BINU.N. & OTHERS - 2015 AIR SCW 956 in WP 202591/2015

support of his contention that in the event if there is no

efficacious alternative remedy, writ petition is maintainable.

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

has raised a preliminary objection with regard to the

maintainability of the writ petition on the ground that

respondent no.3 is not a State as it is not an "Assisted Society",

because it does not receive funds from the State Government.

He also submits that the petitioner has not availed alternative

remedy under Section 70 of the Karnataka Co-operative

Societies Act, 1959.

6. Learned Counsel appearing for respondent no.4 submits

that pursuant to the notification at Annexure-H dated

03.08.2012, the written examination was held by the

respondents on 27.10.2014 and the interview was held on

03.01.2015, by then, on 22.08.2013 itself, the Government had

issued a notification modifying the earlier notification and out of

100 marks, 15 marks was reserved for interview and remaining

85 marks was for written examination. He submits that the WP 202591/2015

petitioner was very much aware of this modification as on the

date when he appeared for the written examination as well as

interview, and with open eyes he has participated in the written

examination as well as interview, and therefore, having not been

selected now, it is not open for the petitioner to challenge the

selection of respondent no.4. He submits that respondent no.4

has been issued with an appointment order on 04.03.2015 and

whereas the present writ petition has been filed on 31.03.2015,

but the petitioner has not questioned the said appointment order

in the present writ petition. He has relied upon the judgments of

the Hon'ble Supreme Court in the case of NEIL AURELIO NUNES

& OTHERS VS UNION OF INDIA & OTHERS in

W.P.No.961/2021, and in the case of ANUPAL SINGH &

OTHERS VS STATE OF U.P. THROUGH PRINCIPAL SECRETARY,

PERSONNEL DEPARTMENT & OTHERS - AIR 2019 SC 5652. He

has also placed reliance on the judgment of the coordinate

bench of this Court rendered in W.P.No.208413/2017 and

connected writ petitions disposed of on 27.04.2022.

WP 202591/2015

7. I have carefully considered the arguments addressed on

behalf of all the parties and also perused the material available

on record.

8. The undisputed facts of the case are, pursuant to the

notification at Annexure-H dated 03.08.2012, the petitioner as

well as respondent no.4 have submitted their application

seeking appointment to the post of SDC under General Merit

(Rural) quota. As on the date of issuing the notification, the

Government Circular which was issued on 13.06.2011 was in

force and the said circular provided that out of 100 marks in

each paper, '5' marks was required to be allocated for interview.

Subsequently, the Government has issued a modified circular on

22.08.2013, which provides that out of 100 marks in each

paper, '15' marks was required to be allocated for the purpose

of interview. Therefore, out of total 200 marks in respect of two

papers, '30' marks was required to be allocated for interview.

After the modified circular was issued by the State Government

on 22.08.2013, the petitioner as well as respondent no.4 along

with other candidates have appeared for the written examination WP 202591/2015

on 27.10.2014 and also attended the interview that was held

thereafter. The written examination was in two papers which

carried 85 marks each and the interview carried totally 30

marks. The petitioner who has appeared for the written

examination and the interview, knowing fully well about the

marks which was allocated for interview, has filed the present

writ petition.

9. Though a preliminary objection has been raised by

respondent no.3 that it is not a State, and therefore, the writ

petition is not maintainable, having regard to the nature of

dispute involved in this petition and taking into consideration

that the remedy under Section 70 of the Karnataka Co-operative

Societies Act, 1959, cannot be said to be a efficacious remedy to

the petitioner, I am of the view that the writ petition cannot be

dismissed as not maintainable. Further more, in Jagadish Patil's

case supra, the coordinate bench of this Court has observed that

since the State Government had stood guarantee to the loan

borrowed by respondent no.3-Society from NABARD, it cannot

be said that respondent no.3 is not a "Assisted Society" by the WP 202591/2015

- 10 -

State Government and the appointment of Directors by the

State Government to respondent no.3-Bank was upheld by this

Court in the said case. Therefore, there is no merit in the

contention urged by respondent no.3 that it is not a 'State'.

10. Further more, in almost identical circumstances, in

Akalakunnam Village Service Co-op. Bank Ltd.'s case supra

where the dispute was between a candidate who had applied to

a post and the co-operative bank, the Hon'ble Supreme Court

has held that the writ petition is maintainable and the remedy

provided under the Co-operative Societies Act to raise a dispute

cannot be said as an efficacious alternative remedy. Under the

circumstances, the contention urged by respondent no.3 that

the writ petition cannot be entertained is liable to be rejected.

11. In support of the contention of the petitioner that the rules

of the game cannot be changed after the selection process has

commenced, the petitioner has relied upon the decision of the

Hon'ble Supreme Court in Manjusree's case supra. In the said

case, 75 marks was provided for written examination and 25 WP 202591/2015

- 11 -

marks for interview and after the written examination and the

interview was over, the marks for written examination was

proportionately scaled down and the marks allocated for

interview was enhanced and this change had resulted in re-

shuffling of selection list. It is under these circumstances, the

Hon'ble Supreme Court had held that the rules of the game

cannot be changed after the selection process had commenced.

12. But in the case on hand, prior to the candidates appearing

for the written examination and the interview, the Government

had modified the earlier circular, thereby the marks for written

test as well as interview was changed. The candidates including

the petitioner and respondent no.4 had appeared in the written

examination and the interview, being fully aware of the fact of

modification made by the Government.

13. The Hon'ble Supreme Court in Anupal Singh's case supra,

where before declaration of the result of the written

examination, the State Government had revised the requisition,

thereby reducing the number of vacancies in various categories,

held that the candidates who appeared in the interview were WP 202591/2015

- 12 -

well aware about the modification/revision in number of

vacancies of Technical Assistants in different categories. The

private respondents/intervening applicants have appeared in the

interview with their eyes wide open regarding the modified

vacancies to be filled up in various categories of the posts.

Having appeared in the interview without any demur or protest,

it is not open to the candidates to challenge the selection

process on the ground that there was modification in the

number of vacancies in different categories and they are

estopped by the principle of estoppel from challenging the same.

The private respondents knew that by the revised notification

dated 12.10.2014, the number of vacancies of different

categories have been changed and knowing the same, they

participated in the interview and have taken a chance and

opportunity thereon without any protest. Having participated in

the interview and having failed in the final selection, it is not

open to the private respondents to turn around and challenge

the revised notification dated 12.10.2014 and the revised

requisition of the number of vacancies in different categories.

WP 202591/2015

- 13 -

14. Similarly, in Neil Aurelio Nunes's case supra, the Hon'ble

Supreme Court has held that the notice impugned therein which

provided reservation for OBC and EWS categories in AIQ seats

was issued after the registration had closed, but before the

examination was conducted, and therefore, it would not amount

to altering the rules of the game. In the said case, the Hon'ble

Supreme Court had considered its earlier judgment in

Manjusree's case supra and has distinguished the same on the

ground that the said judgment would apply to the principle of

any change in the rules of game after selection process (written

examination and interview) was completed.

15. In Chinni Babu's case (W.P.No.208413/2017 & connected

matters) supra, the coordinate bench of this Court at paragraph

49, has observed as under:

"49. The fact that the petitioners were notified about each of the changes made in the selection criteria is not in dispute. The examinations have taken place, after a long time, after the changes are made to the criteria. The petitioners had sufficient time to challenge the changes. However, petitioners WP 202591/2015

- 14 -

have not chosen to challenge the same. On the other hand, the petitioners have opted to participate in the written examination (introduced by way of change) without any demur. Petitioners waited for the result. And only after realizing that they have not succeeded under the modified selection criteria, do petitioners approach the Court with a prayer not to consider the marks obtained in the written test and petitioners want the selection to be made without reference to the marks in the written test. After having participated in the written examination under the changed criteria without protest, the party cannot object to considering the marks in the written test, unless he can demonstrate that the changes introduced are contrary to law. Such a stand is hit by the doctrine of estoppel. ........."

16. Under the circumstances, I am of the considered view that

the judgment of the Hon'ble Supreme Court in Manjusree's case

supra cannot be made applicable to the facts of the present

case. 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 WP 202591/2015

- 15 -

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

applicable to the fact situation of the case.

17. In the present case, the Government vide circular dated

22.08.2013 had modified the marks prescribed for the written

examination as well as interview and the petitioner as well as