Allowed

The Registrar General v. Sri. N Mahesha

Karnataka HC6 Mar 2020WA/3556/2019

Case brief

AI extract

What is this about?

Promotions to Deputy Registrar (Secretarial Services) through interviews and awarded marks were upheld. The court held that seniority alone did not govern selection and that participating candidates were estopped from challenging the procedure. It allowed the appeals, set aside the Single Judge’s order and dismissed the writ petitions.

What did the court decide?

Single Judge’s order setting aside the promotions was set aside; writ petitions dismissed.

The Registrar General Vs Sri. N Mahesha — Service and Employment | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06^TH DAY OF MARCH, 2020

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PRESENT

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THE HON’BLE MR. JUSTICE ARAVIND KUMAR

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AND

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THE HON’BLE MR.JUSTICE B.A.PATIL

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W.A Nos.3103-3104/2019 c/w W.A Nos.3556-3557/2019(S-PRO)

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IN W.A Nos.3103-3104/2019:

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BETWEEN:

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SMT. RAHIMUNNISSA D/O SRI. MEHBOOB SAB AGED ABOUT 58 YEARS DEPUTY REGISTRAR (SS) (UNDER CHALLENGE) REVIEW AND STATISTICS BRANCH HIGH COURT OF KARNATKA BENGALURU – 560 001.

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SRI. P. JAYAKUMAR S/O SRI. GOPALAN NAIR AGED ABOUT 58 YEARS DEPUTY REGISTRAR (SS) (UNDER CHALLENGE) HIGH COURT OF KARNATAKA BENGALURU – 560 001. ... APPELLANTS

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(BY SRI. *V.S. NAIK, ADVOCATE) AND:

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THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA BENGALURU – 560 001

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*Corrected V.C.O. dtd. 17-03-2020.

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SRI. N. MAHESHA S/O SRI. C. NARASIMHAIAH AGED ABOUT 58 YEARS ASSISTANT REGISTRAR (SS) HIGH COURT OF KARNATAKA BENGALURU – 560 001.

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SRI. DORERAJ A.K S/O LATE AJJAPPA KAREGOWDA AGED ABOUT 54 YEARS ASSISTANT REGISTRAR (SS) HIGH COURT OF KARNATAKA BENGALURU – 560 001. ... RESPONDENTS

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*(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR SRI. S. SRIRANGA, ADV FOR R-1; SRI. ASHOK HARANAHALLI, SR. COUNSEL FOR SRI. A. NAGARAJAPPA, ADV & SRI. B. VINAYAKA, ADV FOR R-2 & 3)

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THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED:26.07.2019 PASSED BY THE LEARNED SINGLE JUDGE IN W.P. Nos.24869-24870/2019 (S-PRO) TO DISMISS THE WRIT PETITIONS.

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IN W.A NOs.3556-3557/2019:

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BETWEEN:

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THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA BENGALURU – 560 001. ...APPELLANT

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*(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR SRI. S. SRIRANGA, ADV.)

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AND:

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SRI. N. MAHESHA S/O SRI. C. NARASIMHAIAH AGED ABOUT 58 YEARS ASSISTANT REGISTRAR (SS) HIGH COURT OF KARNATAKA BENGALURU – 560 001.

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* Corrected V.C.O dtd. 17-03-2020.

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SRI. DORERAJ A.K S/O LATE AJJAPPA KAREGOWDA AGED ABOUT 54 YEARS ASSISTANT REGISTRAR (SS) HIGH COURT OF KARNATAKA BENGALURU – 560 001.

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SMT. RAHIMUNNISSA AGED ABOUT 58 YEARS DEPUTY REGISTRAR (SS) (UNDER CHALLENGE) REVIEW AND STATISTICS BRANCH HIGH COURT OF KARNATKA BENGALURU – 560 001.

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SRI. P. JAYAKUMAR AGED ABOUT 58 YEARS DEPUTY REGISTRAR (SS) HIGH COURT OF KARNATAKA BENGALURU - 560 001.

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...RESPONDENTS

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(BY SRI.ASHOK HARANAHALLI, SR. COUNSEL FOR SRI.A.NAGARAJAPPA & SRI.B.VINAYAKA, ADVOCATES FOR * R-1 & R-2; SRI. V.S. NAIK, ADV. FOR R-3 & 4)

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THESE WRIT APPEALS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED:26.07.2019 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.Nos.24869-24870/2019 (S-PRO) DISMISS THE WRIT PETITION.

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THESE APPEALS BEING HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ARAVIND KUMAR J, DELIVERED THE FOLLOWING:

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* Corrected V.C.O. dtd 17-03-2020.

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JUDGMENT

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These intra-Court appeals have been preferred questioning the correctness of the order dated 26.07.2019 passed in W.P.Nos.24869-870/2019, whereunder writ petitions came to be allowed by arriving at a conclusion that criteria adopted by fixing 30 marks for the interview of the candidates for selection to the post of Deputy Registrars (Secretarial Services) is without authority of law and contrary to High Court of Karnataka Service (conditions of service and Recruitment) Rules, 1973 ( for short ‘Rules ’) as amended from time to time and said rules do not provide for holding interview or awarding of marks by the selection committee. It has been further held by the learned Single Judge that in the absence of amendment to Rules, incorporating mode of selection, procedure adopted by holding of interview is erroneous and as such, proceedings of the selection committee dated 30.04.2018 onwards till issuance of promotion order dated 03.06.2019 to appellants is void ab-initio. Hence,

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selection of appellants (in W.A.Nos.3103-04/2019) came to be set aside. Further direction also came to be issued to the appellant in W.A.Nos.3556-3557/2019 to fill up two posts of Deputy Registrar (Secretarial Services) in terms of the extant Rules, within a period of three months.

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Parties are referred to in these appeals as

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per their rank in the writ petitions.

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BRIEF BACKGROUND OF THE CASE:

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Writ petitioner Nos.1 and 2 came to be appointed as Stenographers on 28.02.1991 and 22.08.1990 respectively and later, promoted to the cadre of Judgment Writer, Senior Judgment Writer and Assistant Registrar (Secretarial Services). During the year April, 2008 two (2) vacancies for the post of Deputy Register (Secretarial Services) arose.

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On 07.11.2017 a Committee consisting of three Hon’ble Judges came to be constituted by the then Hon’ble Acting Chief Justice to carry out selection

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process for filling up two vacant posts of Deputy Registrar (Secretarial Services). To fill up the said vacancies, 8 eligible candidates i.e., Assistant Registrars (Secretarial Services) were called for interview being held on 30.04.2018. All the 8 candidates attended the interview conducted by the Selection Committee and respondent Nos.2 and 3 who had secured 22.5 marks each were selected as against petitioner Nos.1 and 2 who had secured 17.5 and 19 marks respectively.

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Hence, petitioners challenged the selection

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of respondent Nos. 2 and 3 on the ground it is arbitrary and contrary to extant recruitment rules. It was specifically contended that candidates were never notified about awarding of marks being the method of selection; it was also contended that seniority was given due consideration on all previous occasions and also preference was accorded to the persons possessing law degree which they possessed and as such respondent Nos.3 and 4 herein could not have been selected. On

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these grounds, petitioners sought for quashing of the notification dated 03.06.2019 (Annexure-J).

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Respondents namely, High Court of

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Karnataka and also the selected candidates on service of notice appeared and filed their respective statement of objections contending interalia that selection process was in accordance with the extant Rules; writ petitioners having participated in the process of interview for promotion are estopped from challenging the procedure adopted by the selection committee amongst other grounds.

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After considering the rival contentions

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raised, learned Single Judge accepted the contention of the petitioners and held that Rules governing the promotion does not provide any criteria for award of marks to the candidates in the interview and said procedure adopted by the Selection Committee is contrary to Rules and as such, recommendation of the selection committee promoting respondents – 2 and 3 as Deputy Registrar (Secretarial Services) was held to

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be illegal. Consequently, selection of respondents 2 and 3 under notification dated 03.06.2019 (Annexure-J) came to be set aside with further direction to the first respondent to fill-up the two (2) posts in terms of Rules within a period of three (3) months. Hence, these writ appeals have been preferred by the Registrar General, High Court of Karnataka as well as by the candidates who had been selected and promoted under the impugned notification dated 03.06.2019.

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We have heard the arguments of Sriyuths S S Naganand, learned Senior Counsel appearing for appellants in W.A.No.3556-57/2019 (first respondent), Sri V.S.Naik, learned Advocate appearing for appellants in W.A.Nos.3103-04/2019 (successful candidatesrespondents-2 and 3 in the writ petition), Sri Ashok Haranahalli, learned Senior counsel along with Sri A Nagarajappa, learned Advocate appearing for the respondents-writ petitioners.

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CONTENTIONS RAISED BY SRI S S NAGANAND, LEARNED SENIOR COUNSEL:

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It is the contention of Sri. S.S.Naganand,

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learned Senior Counsel appearing for the appellants the post to which writ petitioners as well as contesting respondents had applied for is a promotional post i.e., post of Deputy Registrar (Secretarial Services) and said promotion is governed by Rule 5A and the very rule itself would indicate that it is by selection and seniority alone would not be the criteria and as such finding recorded by the learned Single Judge to the effect that while selecting the candidates to the post of Deputy Registrar (Secretarial Services), writ petitioners being seniors to others, they ought to have been selected as they had no adverse remarks and they also possessed law degrees and as such they ought to have been promoted as their names appeared at Sl.Nos.1 and 2 in the seniority list is an erroneous finding. He would also contend that when there is no dispute to the fact that promotion to the post of Deputy Registrar (Secretarial Services) is by selection, seniority alone would not be

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the criteria and it is purely based on selection; he would further submit that petitioners had failed to establish as to how they stand on equal footing with other candidates so as to give preference to them and in fact, said contention raised before the learned Single Judge had been negatived; he would elaborate his submission by contending that petitioners’ contention that interview for selection to the post is only a formal interview and as such committee ought not have introduced its own methodology by awarding marks in the interview, is an erroneous finding, since learned Single Judge could not have held that selection committee has no power to hold interview for selection of candidates; Proviso to Rule 3(1) of Karnataka Civil Service (General Rule) Rules, 1977, provides methodology for selection by conducting interview by selection committee duly appointed for the said purpose and the fact that Rule 11 of High Court of Karnataka (Conditions of Service and Recruitment) Rules, 1973, clearly provides for adopting said rule, when there is no provision or sufficient provision with regard to

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conditions of service of members of the High Court and all those rules and orders as applicable to the servants holding post in the Government of Karnataka, would regulate the conditions of service of the members of the High Court Service, which would be subject to such modification variations or exceptions, if any, as the chief Justice may from time to time specify. Hence, finding of the learned Single Judge is erroneous. In this regard, he would also contend that finding of learned Single Judge that Rule 3(b) applies to only Heads of Department and as such said rule had been erroneously applied, is a finding contrary to the stand of first respondent. Since, first respondent had specifically contended that it had relied upon proviso to Rule 3(1) of 1977 Rules which expressly provided for conducting interview by the selection committee and this aspect has not been delved upon by the learned Single Judge.

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He would further contend that finding of the learned Single Judge that awarding of marks which is

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not provided under the Rules, amounts to change in criteria for selection, is an erroneous finding, inasmuch as, post in question being a selection post, there ought to be transparency and as such awarding of marks is part and parcel of selection process which is adopted to by the selection committee to ascertain suitability of the candidate, since selection of candidates done without awarding of marks would be arbitrary action and there would be lack of transparency. Hence, by relying upon the following judgments he prays for order of the learned Single Judge being set aside and writ petitions being dismissed by allowing these appeals.

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(i) (1990) 1 SCC 305: DALPAT ABASAHEB SOLUNKE AND OTHERS v. DR.B.S.MAHAJAN AND OTHERS

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(ii) (1988) 2 SCC 242: UNION PUBLIC SERVICE COMMISSION v. HIRINYALAL DEV AND OTHERS

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(iii) (2002) 3 SCC 533: PADMA SUNDARA RAO (DEAD) AND OTHERS v. STATE OF T.N. AND OTHERS

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CONTENTIONS RAISED BY SRI V.S.NAIK:

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Sri.V.S.Naik, learned Counsel appearing for contesting respondents 2 and 3 (Appellants in W.A.Nos.3103-04/2019) would submit that, if all other criteria are equal then only the qualification of law degree will come into effect and not otherwise. He would contend that procedure adopted by the selection committee to hold interview and awarding of marks in the said interview is in accordance with extant Rules and there is no error committed by the selection committee. Hence, he prays for allowing the appeals.

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CONTENTIONS RAISED BY SRI ASHOK HARANAHALLI, LEARNED SENIOR COUNSEL:

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Per contra, Sri.Ashok Haranahalli, learned Senior Counsel appearing on behalf of writ petitioners i.e., contesting respondents- 2 and 3 in these appeals would support the order passed by the learned Single Judge by contending that Rule 5A refers to promotion by selection and the only norm which selection committee could have considered was by taking

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recourse to Rule 5A and Note 3, which provides for yardsticks to be followed for all promotional posts and as such anything in addition to said procedure if adopted by the selection committee, it amounts to changing the rules of game. He would contend that it is only the Chief Justice who would be empowered to issue executive instructions by way of Official Memorandum or Circular under Article 229 of Constitution of India to supplant the Rules and in the instant case there being no such Official Memorandum having been issued, selection committee could not have adopted its own methodology of awarding marks, which fact was never made known to the petitioners or notified and thereby it amounts to changing the rules of the game. He would also submit that proviso to Rule 3(1) relied upon by the appellants is inapplicable and calling for interview by the committee is only for the limited purpose of interaction and as such under the guise of conducting interview, selection committee could not have formulated its own norms. He would further contend that what was required to be considered by the

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selection committee was only the service records and ACRs of the candidates and any other exercise undertaken by the selection committee would be contrary to the extant rules. Hence, he contended that impugned selection process has been rightly interfered by the learned Single Judge. On these grounds, he prays for dismissal of the writ appeals. In support of his submission he has relied upon the following

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judgments:

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(i) ILR 2004 KAR 4633: C CHANNEGOWDA AND ANOTHER v. HIGH COURT OF KARNATAKA

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(ii) (1999) 7 SCC 209: AJIT SINGH AND OTHERS (II) v. STATE OF PUNJAB AND OTHERS

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(iii) (2019) 3 SCC 672: HIGH COURT OF HYDERABAD v. P. MURALI MOHANA REDDY AND OTHERS

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(iv) (1993) 3 SCC 663: D.V.BAKSHI v. UNION OF INDIA

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(v) (2010) 3 SCC 104: RAMESH KUMAR v. HIGH COURT OF DELHI AND ANOTHER

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(vi) (2008) 7 SCC 11: HEMANI MALHOTRA v. HIGH COURT OF DELHI

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(vii) (2006) 5 SCC 789: K.K.PARMAR v. HIGH COURT OF GUJARAT

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(viii) (1985) 3 SCC 721: UMESH CHANDRA SHUKLA v. UNION OF INDIA AND OTHERS

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(ix) (2004) 6 SCC 786: INDER PRAKASH GUPTA v. STATE OF JAMMU AND KASHMI AND OTHERS

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(x) (2014) 14 SCC 50: RENU v. DISTRICT AND SESSIONS JUDGE ]

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(xi) (2016) 10 SCC 484: SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR AT IMPHAL

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(xii) (1995) 6 SCC 1: DR. KRUSHNA CHANDRA SAHU AND OTHERS v. STATE OF ORISSA AND OTHERS.

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REPLY ARGUMENTS BY SRI S.S.NAGANAND, LEARNED SENIOR COUNSEL:

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Sri. S.S.Naganand, learned Senior Counsel submits that all the judgments relied upon by the learned counsel appearing for writ petitioners relates to regular appointment except one or two. He would refer to the judgment of the Hon’ble Apex Court in the case of

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K.K.PARMAR AND OTHERS v. HIGH COURT OF

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GUJARAT AND OTHERS reported in (2006) 5 SCC 789 relied upon by the petitioners, wherein Hon’ble Apex

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Court interfered with selection process as marks was awarded for the past performance and contends same is inapplicable to the facts obtained in the instant case. He would also submit that Note below Rule 5A, is an enabling provision to bring a candidate to the zone of consideration. Hence, he would reiterate his prayer made in the appeal memorandum and prays for appeals being allowed.

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DISCUSSION AND FINDINGS:

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Petitioners, who came to be appointed as stenographers initially, were placed in the zone of consideration along with six other candidates for being promoted by selection to the post of Deputy Registrar (Secretarial Services) ( hereinafter referred to as ‘DR

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(SS)’ for short ). There cannot be any dispute to the proposition that an applicant would have right for being considered for promotion but cannot have a right for being promoted.

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The method of recruitment to the post of Deputy Registrars (Secretarial Services) is governed by the High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 1973 as amended from time to time. There is no dispute and both parties are ad-idem on the issue that Rule 5A of the Rules would govern the issue relating to promotion to the post of Deputy Registrar (Secretarial Services) which had been amended vide Notification dated:04.12.2013. For the purposes of immediate reference, said rule which was in force as on the date of promotion in question was made, is extracted herein below:

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“5A Deputy Registrars (Secretarial Services)-

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“ By promotion by selection from the cadre of Assistant Registrar (Secretarial Services) provided that he/she has completed at least 2 years of combined service in the present cadre of Assistant Registrar (Secretarial Services) as well as erstwhile cadre of senior Judgment Writer. Other things being equal, preference should be given to those possessing a degree in law”

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“ Note: 3) For all the promotional posts the following yardsticks have to be followed invariably:-

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(a) There should not be any Disciplinary Enquiry pending/Currency of penalty imposed in any Disciplinary Enquiry as on the date of consideration of promotion against the officer/official who is under consideration for promotion.

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(b) There should not be any adverse remarks in the Annual performance Reports against the officer/official who is under consideration for promotion, for the immediate past 5 years from the date of consideration of promotion. (If an officer/official who has put in less than 5 years of service comes in zone of consideration for promotion then for such years of service.

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(c) The officer/official who is under consideration for promotion to the next higher post shall have passed all such Departmental Exams (and Kannada Language Examination) which have been prescribed for the next higher post as per High Court of Karnataka (Service & Kannada Language Examination) Rules, 1975 failing which such officer/official will not be eligible for being considered for the next higher post.

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(d) To be eligible for promotion the period of probation shall be declared as satisfactorily completed in respect of those officer/official who is under consideration.”

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Post in question is a selection post and it is not based on seniority alone. Hence, question of giving weightage to seniority alone for selection would be an inappropriate method. Learned Single judge has held that seniority is the only criteria for promoting though it is selection based on seniority. Hon’ble Apex Court in the matter of STATE BANK OF INDIA AND OTHERS vs. MOHD. MYNUDDIN reported in (1987) 4 SCC 486 has held that whenever promotion to a higher post is to be made on the basis of merit, no officer can claim such promotion as a matter of right by virtue of seniority alone. It is held:

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“5. Whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted. It is not sufficient that in his confidential

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reports it is recorded that his services are ‘satisfactory’. An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post. Before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials. If promotion has been denied arbitrarily or without any reason ordinarily the court can issue a direction to the management to consider the case of the officer concerned for promotion but it cannot issue a direction to promote the officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion. There is good reason for taking this view. The court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. The duties of such posts may need skills of different kinds — scientific, technical, financial, industrial, commercial, administrative, educational etc. The methods of evaluation of the abilities or the competence of persons to be selected for such posts have also become nowadays very much refined and sophisticated and such evaluation

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should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer. Of course, the process of selection adopted by them should always be honest and fair. It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating circumstances other considerations will arise. The nature of the writ that can be issued in cases like the one before us has been considered by this Court in the State of Mysore v. Syed Mahmood . In that case Rule 43(b) of the Mysore State Civil Services General Recruitment Rules, 1957 required promotion to be made by selection on the basis of senioritycum-merit, that is seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. While making selections for promotions to the post of senior statistical assistants from the cadre of junior statistical assistants, the State Government did not consider the case of the respondents therein who were junior statistical assistants, and published a list promoting persons ranking below them in point of seniority. The respondents therein filed writ petition before the High Court. The High Court while refusing to quash the seniority list directed the appellant-State to promote the respondents as from the dates on

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which their juniors were promoted and treat their promotion as effective from that date. In the appeal filed against the judgment of the High Court this Court observed that while making selections for promotion to the post of senior statistical assistants from the cadre of junior statistical assistants in 1959, the State Government was under a duty to consider whether having regard to their seniority and fitness they should be promoted. Since the promotions were irregularly made the respondents therein were entitled to ask the State Government to reconsider their case. In the circumstances, this Court observed, that the High Court could only issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness, the respondents should have been promoted on the relevant dates when officers junior to them were promoted and that instead of issuing such a writ the High Court had wrongly issued a writ directing the State Government to promote them with retrospective effect. This Court further observed that the High Court ought not to have issued such a writ without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959. The ratio of the above decision is that where the State Government or a statutory authority is under an obligation to promote an employee to a higher post which has

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to be filled up by selection the State Government or the statutory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the court should not ordinarily issue a writ to the government or the statutory authority to promote an officer straightway. The principle enunciated in the above decision is equally applicable to the case in hand.”

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In fact, learned Single Judge has held that

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there is no right vested in an applicant for being promoted but at the same time held that applicant is entitled for being placed in the zone of consideration and has a right to be considered as being eligible for promotion in terms of statutory rules and executive order/s governing such promotional post, for which proposition there cannot be any doubt.

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Learned single Judge has also held that Selection Committee committed an error in holding interview and awarding marks to the candidates as it is not provided under the extant Rules.

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It is an undisputed fact the Hon’ble Acting Chief Justice by order dated 03.11.2017 constituted a committee of three Hon’ble Judges to carryout selection process for filing up two vacant posts in the cadre of Deputy Registrar (Secretarial Services) and said committee passed a resolution on 27.04.2018 to hold interview of all the 8 eligible candidates and as such directed the registry to notify 8 candidates in their order of seniority to be called for interview being held on 30.04.2018. If seniority alone was the criteria, then question of constituting Selection Committee by the Hon’ble Acting Chief Justice and/or, such Selection Committee conducting the interview would not have arisen at all. When promotion is based on selection, then selection committee has to necessarily hold interviews of all the eligible candidates or all those candidates who are in the zone of consideration. In other words, Rule 5A mandates that promotion is by selection from the cadre of Assistant Registrar (Secretarial Services) provided that such candidate has completed at least 2 years of combined service in the

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cadre of Assistant Registrar (Secretarial Services) as well as erstwhile cadre of Senior Judgment Writer and other things being equal, preference would be given to those possessing a degree in law.

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It is a fact that Selection Committee appointed by the Hon’ble Acting Chief Justice had held interview on 30.04.2018 for filing up two (2) posts of Deputy Registrar (SS) by interviewing all the eight (8) eligible candidates. Same was by “ selection ”. The call letter dated 28.04.2018 (Annexure-E) issued to the petitioners is clear and specific whereunder the candidates have been notified to appear for interview and it has been indicated thereunder that promotion is by selection. Learned single Judge having held that seniority alone is not the criteria for consideration for promotion since it is a selection post and not senioritycum-merit so as to give weightage to the seniority, erred in arriving at a conclusion that interview of candidates could not have been held. The object of holding interview is to measure the candidates’ over all

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intellectual qualities and it is an yardstick to ascertain the most suitable candidate.

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A plain reading of Rule 5A would clearly indicate that promotion to the post of DR (SS) is by “selection” from the cadre of Assistant Registrar (Secretarial Services). In other words, promotion to said post would be on the basis of selection and not seniority alone. In fact, learned Single Judge vide paragraph 30 has held that Rules governing the promotional post are silent. However, learned Single Judge has proceeded to hold that neither Rule 3 of the Karnataka Civil Services (General Rule) Rules, 1977 nor Rule 11 of High Court Karnataka Service (Conditions of Service and Recruitment) Rules, 1973 could have been invoked by the first respondent and it would be contrary to the law laid down by Hon’ble Apex Court in the case of K K PARMAR vs HIGH COURT OF GUJARAT reported in (2006)5 SCC 789 . In the said case, issue that was involved related to promotion to the post of Section Officer, which is the selection post and terms and

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conditions of services were governed by Gujarat (Recruitment and Conditions of Services of Staff) Rules, 1964 and Rule 38 related to the promotion which provided for promotion to be made on merit and seniority in the cadre to be ordinarily taken into account as far as possible. During the year 1982, Government of Gujarat issued an Office order in the form of resolution which indicated thereunder that appointment by promotion to the post of Heads of Departments, principle of selectivity is accepted and the selection committee should classify the officers within the zone of consideration as outstanding, very good, good and unfit for promotion. High Court of Gujarat framed rules known as “High Court of Gujarat (Recruitment and conditions of Service of Staff) Rules, 1992 and Rule 47 related to promotion. Rule 47 (2)(a) related to promotion to the post of Section Officer from Assistant indicated that promotion will be effected strictly on consideration of efficiency and proved merit. It further provided that merit shall be determined on the basis of past performance and performance at the

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written and oral examination to be taken by the Selection Committee. Whereas, Rule 50(1) provided for the applicability of rules relating to Government of Gujarat to the extent where no provision or insufficient provision has been made in 1992 High Court Rules. Writ petitioners while challenging the promotional list amongst other grounds, raised a contention that there has been gross violation of sub-rule (2)(a) of Rule 47 of the Rules in terms whereof, merit was to be determined on the basis of (i) past performance; (ii) written test and (iii) oral test, but as no criteria was fixed relating to past performance of the candidate, entire selection process was vitiated in law. It was noticed by the Hon’ble Apex Court that selected candidates might not have obtained the requisite marks for passing the examination either in the written test or at the oral test or both. It was also

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noticed by the Apex Court that material placed on record did not indicate separate marks having been awarded for past performance and as such, it came to be held that what was required to be done by the Selection Committee was to scrutinize and examine the

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past record for which assignment of marks may not be necessary. It further held, as to what procedure should be adopted for assessing merits while considering the three criteria namely, performance in the written test, oral test and past performance has to be left to the Selection Committee and it would not be open to the court hearing a petition under Article 226 of the Constitution of India to lay down that a particular procedure ought to have been adopted by the Selection Committee. Hon’ble Apex Court has further observed that selection committee in the absence of any marks having been allotted under the Rules for judging past performance of the candidates ought to have devised a mode therefor and if they had adopted any criteria in that regard, the employees concerned cannot be blamed - Vide paragraph 25. In fact, Hon’ble Apex Court has observed that seniority may have to be given due weightage but it would only be one of the several factors affecting assessment of merit as comparative experience in service should be. It was also held that for the

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purpose of judging the merit, past performance was a relevant factor.

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Facts on hand would indicate that Rules governing promotion to the post of DR(SS) being silent, which is also partially accepted by the learned Single Judge vide paragraph 30, yet, failed to consider the purport and import of the Rule 3 of KCS (General) Rules, 1977 as would be applicable to servants holding posts in the Government of Karnataka, being applicable to the members of the High Court.

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Rule 11 of High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 1973 reads as under:

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“11. Condition of Service.— In respect of all such matters regarding the conditions of service of the members of the High Court Service for which no provision or insufficient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding posts in the Government of Karnataka shall regulate the conditions of service of the members of the High Court Service, subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may from time to time, specify:

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Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave of pensions shall be made by the Chief Justice except with the previous approval of the Governor of Karnataka:

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Provided further that the powers exercisable under the rules and orders of the Government of Karnataka by the Governor or the Government or by any authority subordinate thereto shall be exercisable by the Chief Justice.”

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A plain reading of the Rule 11 of High Court

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Rules, 1973 would indicate that where no provision or insufficient provision has been in the recruitment rules, in the matter regarding conditions of service of members of the High Court service, rules and orders for the time being in force and applicable to servants holding posts in the Government of Karnataka would regulate the conditions of service of the members of High Court Service, subject to such modifications, variations or exceptions as the Chief Justice may specify from time to time. Hence, we are of the considered view that learned Single Judge had erred in arriving at a conclusion that Karnataka Civil Service (General Rules) Rules, 1977 could not have been

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invoked by Selection Committee. The selection

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committee has traced its power to Rule 3 of KCS(GR) Rules by virtue of Rule 11 of 1973 Rules. Rule 3 of KCS(GR) Rules reads:

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“3. Method of Recruitment : (1) Except as otherwise provided in these Rules or any other rules specially made in this behalf, recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority-cum-merit. The methods of recruitment and qualifications shall be as specified in the rules of recruitment specially made in that behalf;

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Provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment shall be any selection after an interview by the Commission, the Advisory or Selection Committee or the Appointing Authority as the case may be;

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Provided further that no person shall be eligible for promotion unless he has satisfactorily completed the period of probation or officiation, as the case may be, in the post held by him.

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(2) Notwithstanding anything contained in these rules or in the rules of the recruitment specially made in respect of any service or post:-

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(a) promotion to the post of Head of Department of the post of an Additional head of Department, if it is in a grade equivalent to that of the head of Department concerned, shall be by selection;

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Provided that for the purpose of promotion by selection, number of persons to be considered shall be such number of persons eligible for promotion in the order of seniority, as is equal to [2(x)+4 where (x) is the number of vacancies to the filled]

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Provided further that the officer falling within the zone of consideration for promotion by selection shall not be considered for promotion unless he has at least 3 months service from the late of occurrence of the vacancy prior to his retirement on superannuation.”

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25. A plain reading of Rule 3(1) of Karnataka

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State Civil Services (General Rules) Rules, 1977 would indicate it provides for method for selection by way of conducting of interview. The first respondent has categorically stated in its statement of objections vide paragraph 9 that selection committee had conducted the interview of all eligible candidates by exercising said power.

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In the background of Rule 11 of 1973 Rules, the method of recruitment by promotion provided under

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Schedule-III when perused, it would clearly indicate that promotion to the post of Deputy Registrar (Secretarial Services) is by selection. As such, proviso to Rule 3(1) of Karnataka State Civil Services (General Rules), 1977 has been rightly invoked by the appointing authority which rule provides for “selection” of candidates by conducting interview for promotional post.

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Learned Single Judge has held that Note-3 of (I Amendment) Rules, 2013 stipulates yardstick for promotional post and as such, the selection committee could not have side tracked and added something which is not there. It has been further held that holding of interview, fixation of marks and award of marks is without amendment to Note-3 which is part and parcel of Rules, 2013 and this method adopted by the selection committee is erroneous. The finding recorded by the learned Single Judge vide Paragraph 42 is diametrically opposite to finding recorded in Paragraph 30. At the cost of repetition, it requires to be

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noticed that it has been held thereunder, that Rules

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governing promotional post are silent in respect of holding an interview. Thus, when 1973 Rules is silent, the recourse taken by the selection committee to invoke Rule 11 of 1973 Rules and thereby invoking Rule 3(1) of Karnataka State Civil Services (General Recruitment) Rules, 1977 was fully justified. Note-3 provides for as to what aspects should not be found against the eligible candidates, which if present, would disentitle for being considered for promotion. As such, the conclusion arrived at by the learned Single Judge that Note-3 stipulates the yardstick for promotional post is a misplaced conclusion arrived at. Hence, we are of the considered view that finding recorded by the learned Single Judge that Rules framed by Government of Karnataka for its employees could not have been pressed into service or adopted by the appointing authority or selection committee is wholly misplaced.

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In fact, the appointing authority has not placed reliance on Rule 3(2) but on proviso to Rule 3(1)

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namely, Selection committee had adopted the method of selection for promotion as indicated in Sl.No.5A of Schedule III of the High Court Rules, 1973 as amended from time to time read with proviso to Rule 3(1) of KCS (GR) Rules, 1977 by conducting an “interview” of all the eligible candidates. When the High Court Rules, 1973 as amended from time to time is silent with regard to mode or method of selection and selection committee invoking proviso to Rule 3(1) for conducting interview and allotting marks to the candidates in the said interview is the most transparent method and it cannot be found fault with. The selection is based on an interview and in the event of selection committee having failed to allot marks; it would have been more susceptible to attack as being arbitrary, nontransparent and such other grounds. In the instant case, promotion to the post of Deputy Registrar (Secretarial Services) being selection, as to the basis on which said selection had to be made by catogerisation will have to be necessarily left to the wisdom of selection committee and this proposition receives

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support from authoritative pronouncement of Hon’ble Apex Court in the matter of UNION PUBLIC SERVICE

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COMMISSION vs HIRANYALAL DEV AND OTHERS reported in (1988)2 SCC 242 whereunder it has been held to the following effect:

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“5. It cannot be gainsaid that the Selection Committee could not have taken into consideration the adverse remarks entered in the records which had not been communicated to Respondent 1, and in any case could not have taken into consideration these remarks which were subsequently set aside by the State Government. The legal effect of the setting aside of the adverse remarks would be that the remarks must be treated as nonexistent in the eye of law. The Selection Committee had, therefore, fallen in error in taking into account these adverse remarks which in the eye of law did not exist and which could not have been lawfully taken into consideration. However, the fact that the Selection Committee erred in this behalf does not necessarily mean that Respondent 1 should have been categorised or considered as “very good' vis-a-vis others who were also in the field of choice. How to categorise in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. The Tribunal could not make a conjecture as to what the Selection Committee would have done or to resort to conjecture as to the norms to be applied for this purpose.

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The proper order for the Tribunal to pass under the circumstances was to direct the Selection Committee to reconsider the merits of Respondent 1 vis-a-vis the official who was junior to him and whose name was Shri Sardar Pradeep Kar. Instead of doing so, the Tribunal has held that Respondent 1 should be deemed to have been included in the impugned select list prepared in 1983, at least in the place in the order of his seniority on the basis of the assessment of his C.C. Rolls, and has issued a direction to appoint Respondent 1 with effect from the date on which Shri Kar was appointed. The jurisdiction to make the selection vested in the Selection Committee. The Selection Committee had to make the selection by applying the same yardstick and norm as regards the rating to be given to the officials, who were in the field of choice by categorising the concerned officials as “outstanding”, “very good”, “good” etc. This function had also to be discharged by the Selection Committee by applying the same norm and tests and the selection was also to be made by the Selection Committee as per the relevant rules. The powers to make selection were vested unto the Selection Committee under the relevant rules and the Tribunal could not have played the role which the Selection Committee had to play. The Tribunal could not have substituted itself in place of the Selection Committee and made the selection as if the Tribunal itself was exercising the powers of the Selection Committee, as has been done which is evident from the passage extracted from para 16 of the judgment:

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“We have also gone through the C.C. Roll, of the two junior officers,

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Respondents 11 and 12 for the same period of five years including 1982-83. We are of the definite view that there is absolutely no reason after expunction of the adverse remarks to hold that the applicant deserved a lower classification than these two respondents, Who were junior to him.”

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The proper course to adopt was the course which was indicated by this Court in Gurdial Singh Fijji v. State of Punjab [(1979) 2 SCC 368, 377-78, para 20 : 1979 SCC (L&S) 197 : AIR 1979 SC 1622 : (1979) 3 SCR 518, 530] wherein this Court directed that the case of the appellant be considered afresh by the Selection Committee indicating the broad framework within which the Committee should act and the preliminary steps the Government should take in order to facilitate the Committee's task. In State of Mysore v. Syed Mahmood [AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ 370] a dispute about promotion of certain officers had been raised. In writ petitions filed by the aggrieved officers the High Court passed orders directing the State Government to promote them from the respective dates on which respondents junior to them were promoted. The orders passed by the High Court were set aside by this Court and a direction was issued to the State Government to consider whether the said officers should have been promoted on the relevant dates. It was held:

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“The promotions were irregularly made and they were, therefore, entitled to ask the State Government to reconsider their case. In the circumstances, the High

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Court could issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they should have been promoted on the relevant dates when officers junior to them were promoted. Instead of issuing such a writ, the High Court wrongly issued writs directing the State Government to promote them with retrospective effect. The High Court ought not to have issued such writs without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959.”

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“7. Turning now to the next point, while the Tribunal has not rested its decision on the ground that the Selection Committee had not given reasons for not selecting Respondent 1 the Tribunal has made a declaration of law to this effect that it was obligatory on the part of the Selection Committee to have recorded the reasons for superseding those who were senior. In the first place, the Tribunal was in error in taking the view that it constituted supersession. The Selection Committee was making a selection and when someone was selected in preference to the other, it could not be said that it amounted to supersession of a junior by a senior. The concept of supersession is relevant in the context of promotion and not in the context of selection. Besides, the Tribunal has also committed an error in taking the view that the law enjoined the Selection Committee to record the reasons and failure to do so would vitiate the selection. It appears that the Tribunal did not properly realise the effect of the relevant provision having been amended at the time when the Selection Committee

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made its selections and that so far as the amended provision in concerned, the question is concluded by the decision of this Court in R.S. Dass v. Union of India [1986 Supp SCC 617] wherein this Court, while dealing with the provisions of Indian Administrative Service (Appointment by Promotion) Regulations, 1955 which are in pari materia with Indian Police Service (Appointment by Promotion) Regulations, 1955 applicable in the instant case, has taken the view that it is not necessary to record the reasons for not selecting a person who is in the arena.”

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The object of conducting an interview is to measure the candidates over all qualities. The awarding of marks is the best method to ascertain the suitability of the candidate. In the absence of awarding marks, the Selection Committee could not have made an informal decision to select the suitable candidate. Thus, Selection Committee was fully justified in awarding marks to the candidates and it is the best norm/practice adopted and no fault can be noted. Hence, we are of the view that finding of the learned Single Judge that awarding marks in the absence of a provision, such procedure ought not to have been adopted cannot be accepted and it is an erroneous

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finding. In fact, the procedure adopted by the selection committee is the most transparent and the objective method of interviewing the candidates to select the candidates and it was achieved by adopting the said process.

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Reliance placed by the learned Single Judge in the case of HIGH COURT OF HYDERABAD vs P.MURALI MOHANA REDDY reported in (2019)3 SCC 672 to brush aside the judgment of HIRANYALAL DEV’s case referred to supra, on the ground that it is an earlier decision and as such, it would not come to the rescue of the appellants is misplaced. The ratio laid down in HIRANYALAL DEV’s case has not been over ruled or doubted in MURALI MOHANA REDDY’s case. In fact, MURALI MOHANA REDDY’s case is based on distinct facts, which can be noticed from facts. In said case it was noticed that advertisement which came to be issued there was no mention of candidates securing minimum qualifying marks in the viva-voce test and Rule 6 of the Rules did not contain any provision of

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securing minimum qualifying marks in the interview. However, it stipulated qualifying aggregate marks in written examination and viva- voce, as 40% for general category, 35% for backward category and 30% for SC/ST category in the written examination. Since, advertisement nor rules provided for minimum qualifying in viva-voce and yet, selection committee had prescribed the same for itself in the process of selection was held to be erroneous. It is in this background, Hon’ble Apex Court held that prescription of minimum qualifying marks for interview is contrary to the rules and the advertisement. Whereas, in the instant case, there was no prescription of minimum qualifying marks for an interview by the appointing authority or by the selection committee. However, the candidates for being selected were judged on the index of 30 marks and marks were assigned on the basis of their individual performance in the interview. In other words, there was no minimum qualifying marks as adopted in MURALI MOHANA REDDY’s case. In that view of the matter, ratio laid down in MURALI MOHANA REDDY’s case relied upon

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by learned Single Judge would recede to the

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background and ratio laid down therein will have to be read in the background of facts obtained in the said case only. Thus, finding of the learned Single Judge is contrary to the principles of Stare Decisis.

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In the instant case, selection committee has adopted the same criteria for all the candidates, and after having perused the selection committee proceedings we are fully satisfied with regard to mode and method adopted by the selection committee for selecting candidates by way of interview and awarding of the marks in the interview which has been applied to all the candidates who appeared for the interview.

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Yet, another factor which cannot go unnoticed is that we have also perused the records of selection process to fill up the post of DR (SS) conducted during the previous years viz., 2014, 2015 & 2016 and same has been compared with the selection records of these proceedings and find that for all these

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years, same procedure has been adopted and it would also be interesting to note that in the interview held during the years 2014, 2015 as well as during the year 2016, writ petitioners have also participated in the said interviews without any demur and thereby were aware of the procedure adopted by the Selection Committee. Hence, they cannot be heard to contend that selection procedure adopted by the Selection Committee is contrary to the prescribed rules. As such, finding recorded by the learned Single Judge in this regard cannot be sustained.

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Writ petitioners as well as respondent Nos.2 and 3 along with others were called for interview by the selection committee held on 30.04.2018 at 11.00 a.m. All the eight (8) candidates including the petitioners and the contesting respondents amongst others attended the interview held by the selection committee. Since two (2) posts were to be filled up by promotion, selection committee after taking into consideration the aptitude, language, etc, of the candidates and on scrutiny of their

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annual performance report for the last five (5) years recommended the names of respondent Nos.3 and 4 herein for the post of DR (SS) to fill up two (2) vacancies. In the process of selection, committee had fixed 10 marks each for aptitude, language and ability to grasp respectively. The contesting respondents who have secured 22.5 marks each against 17.5 and 19 marks obtained by writ petitioners have been selected.

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Lastly, it has to be noticed that petitioners having participated in the selection process are now estopped from raising any plea with regard to the procedure adopted for selection and this view is supported by the authoritative pronouncement of Hon’ble Apex Court in the case of RAMESH CHANDRA SHAH & OTHERS vs. ANIL JOSHI & OTHERS reported in (2013)11 SCC 309 and in the matter of AIR COMMODORE NAVEEN JAIN vs. UNION OF INDIA AND OTHERS reported in AIR 2019 SC 5087.

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For the reasons aforestated, we proceed to pass

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the following:

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JUDGMENT

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(I) W.A.Nos.3103-04/2019 and W.A.Nos.3556-3557/2019 (S-Pro) are allowed.

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(II) Order dated 26.07.2019 passed in W.P.Nos.24869-24870/2019 (S-Pro) is set aside and writ petitions are dismissed.

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