Partly allowed

Ms Manjushree K v. State of Karnataka

Karnataka HC22 Aug 2024WP/24372/2022

Case brief

AI extract

What is this about?

The Court dismissed a writ petition by a selection applicant awaiting recruitment due to a nine-year lapse without satisfactory explanation for delay. Conversely, the Court allowed the petition by the Public Service Commission, setting aside a Tribunal order that directed the Commission to consider a 'fence-sitter' candidate who sought benefits from a prior judgment in which they were not a party.

What did the court decide?

Writ Petition No.24372 of 2022 dismissed; Writ Petition No.11855 of 2023 allowed; Tribunal order dated 05-12-2022 in Application No.2700 of 2022 set aside and application dismissed.

Ms Manjushree K Vs State of Karnataka — Service and Employment | Karnataka HC (2024)

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WP No. 24372 of 2022 C/W WP No. 11855 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE ANU SIVARAMAN

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA WRIT PETITION NO. 24372 OF 2022 (S-KSAT) c/w WRIT PETITION NO. 11855 OF 2023 (S-KSAT)

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IN W.P.NO. 24372/2022

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BETWEEN:

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MS MANJUSHREE K. AGED ABOUT 37 YEARS D/O KEMPAIAH, NO. KT-227, 9^TH CROSS, CHAMUNDESHWARI NAGARA MANDYA - 571401

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…PETITIONER

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(BY SRI. JAYAKUMAR S.PATIL, SENIOR COUNSEL A/W SRI.MOHAN P.S., ADV.)

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Digitally signed by NANDINI D Location: High Court of Karnataka

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AND:

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STATE OF KARNATAKA, RERPESENTED BY ITS SECRETARY, PUBLIC WORKS PORTS AND INLAND WATER TRANSPORT DEPARTMENT, VIKAS SOUDHA, BENGALURU 560 001.

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KARNATAKA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, UDYOGA SOUDHA, PARK HOUSE ROAD, BENGLAURU - 560 001

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SRI. KESHAVA PRASAD B.N S/O NAGARAJ B.G AGED ABOUT 37 YEARS WORKING AS ASST. ENGINEER, PUBLIC WORKS, PORTS AND INALND WATER TRANSPORT DEPARTMENT, R/AT D.NO. 161, 4^TH MAIN, BCC LAYOUT, NEAR CHANDRA LAYOUT, WATER TANK, VIJAYANAGAR, BENGALURU 560 040

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SRI. CHANDRASHEKAR.R S/O R. RANGARAJU AGED ABOUT 38 YEARS, WORKING AS ASST. ENGINEER PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/AT D.NO. 97, PWD QUARTERS, KHB MAIN ROAD, KAVAL BYRASANDRA, R.T NAGAR POST, BENGALURU 560 031.

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SRI. RAJESH M.R. S/O RAMAPPA M.O. WORKING AS JUNIOR ENGINEER, NO.4, GAUGING SUB DIVISION, CAUVERY BHAVAN CAUVERY BHAVAN COMPLEX, GOKULAM 4-STAGE, MYSURU - 570 020.

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SRI. RAGHAPATHY K.K. S/O KAPINAPPA, AGED ABOUT 40 YEARS WORKING AS ASSISTANT ENGINEER, PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/O NO. 943, LAXMI NILAYA, BEHIND TELEPHONE EXCHANGE, B.M. ROAD, PRIYAPATNA, MYSURU DISTRICT - 571 107.

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SRI. PRADEEP.T. S/O BULLAPPA T.

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AGED ABOUT 33 YEARS WORKING AS ASSISTANT ENGINEER PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/AT C/O K. RANGASWAMY, NO.48, 5^TH MAIN, SUBHASHNAGAR, N.R. MOHALLA, MYSURU 570 007.

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SRI. NAGARAJA B.A S/O ADYAPPA BIRADAR, AGED ABOUT 37 YEARS WORKING AS ASSISTANT ENGINEER, PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/AT D.NO. 57/1, BASAVARAJAPET, DAVANAGERE - 577 001

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SMT. SUJATHA N. W/O NAGARAJA AGED ABOUT 42 YEARS WORKING AS ASSISTANT ENGINEER PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/AT NO.28, 2^ND BLOCK, BEML LAYOUT, 2^ND STAGE, SRIRAMPURA, MYSURU 570 023

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SRI. HARISH G S/O M. GOVINDARAJU AGED ABOUT 37 YEARS WORKING AS ASSISTANT ENGINEER PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/AT D.NO. 541, 12^TH CROSS, 8^TH MAIN, J.P NAGAR 2^ND STAGE, BENGALURU 560 078.

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SRI. GOKULDAS S/O KRISHNAPPA AGED ABOUT 38 YEARS, WORKING AS ASSISTANT ENGINEER

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PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, AND R/O C-3, KNNL, M.I. SUB DIVISION NO.5, HIREKUMBI, SAVADATTI TALUK, BELAGAVI DIST. - 591 110.

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SRI. SATISH KUMAR S. S/O SHIVANNA K 34 YEARS WORKING AS ASSISTANT ENGINEER PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/AT C/O SIDDARAJU.C PLOT NO.5, 102/22, TATA SILK FARM, BASAVANAGUDI, BENGALURU 560 004

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KUM. SAVITHA H.A. D/O ANANDAMURHTY H.S. AGED ABOUT 39 YEARS WORKING AS ASSISTANT ENGINEER PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/AT D.NO.160, 4^TH MAIN, 4^TH CROSS, BCC LAYOUT, ATTIGUPPE, VIJAYANAGAR II STAGE, BENGALURU - 560 040.

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SRI. GANESH S S/O SIDDARAMAPPA, AGED ABOUT 40 YEARS WORKING AS ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, NO.3, BRLBC SUB DIVN., MILITARY CAMP, BHADRAVATHI, SHIVAMOGGA DIST. 577301.

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SRI. THIMMARAYAPPA B. S/O BYRANNA, AGED ABOUT 33 YEARS WORKING AS EXECUTIVE ENGINEER PUBLIC WORKS, PORTS AND INLAND

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WATER TRANSPORT DEPARTMENT, R/O CHIKKABANAGERE POST SIRA TALUK, TUMKR DISTRICT -572113

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SRI. LINGARAJU N S/O NEELI SIDDAIAH AGED ABOUT 44 YEARS WORKING AS ASSISTANT ENGINEER NO.2, KABINI CANAL DIVISION KOLLEGAL, CHAMARAJANAGAR DIST.-571 440

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SRI. AMEEN MUKTAR AHAMED S/O NISAR AHAMED, MAJOR WORKING AS ASSISTANT ENGINEER R/O MAI ROAD, QUILLA GALLI, BASAVAKALYAN, BIDAR DISTRICT - 585 327

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PADMAVATHI M AGED ABOUT 38 YEARS WORKING AS ASSISTANT ENGINEER PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/O NO. 1082, 10^TH MAIN ROAD, VIJAYANAGAR II STAGE, RPC LAYOUT, BENGALURU - 560 040

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SRI. DEEPAK. N AGED ABOUT 40 YEARS WORKING AS ASSISTANT ENGINEER PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/AT C/O JERY LOBO, MAC VILLA, OUTHOUSE NEAR GODOWN, 14^TH CROSS, R.P. ROAD, NANJANGUD MYSORE DISTRICT.

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ASHA JYOTHI N AGED ABOUT 39 YEARS WORKING AS ASSISTANT ENGINEER PUBLIC WORKS, PORTS AND INLAND

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WATER TRANSPORT DEPARTMENT, R/AT NO.22/A, II MAIN ROAD, RMV II STAGE, NGEF LAYOUT, SANJAYNAGAR, BENGALURU 560 094.

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SUNANDA A AGED ABOUT 39 YEARS WORKING AS ASSISTANT ENGINEER PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, R/AT: D.NO.1031, 5^TH MAIN, 3^RD BLOCK, 3^RD STAGE, BASAVESHWARANAGAR, BENGALURU - 560 079.

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STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA, BENGALURU 560 001.

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…RESPONDENTS

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(BY SRI. NAVEEN CHANDRASHEKAR, AGA FOR R1 & R22, SRI. SIDHARTH BABURAO, ADV. FOR R2, NOTICE TO R3 TO R21 IS D/WITH.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23/08/2013 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL SO FAR IT RELATES TO APPLICATION NO.1579/2012 OF THE PETITIONER, BY ISSUE OF WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE ORDER OR DIRECTION, AS THE CASE MAY BE ETC.

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IN W.P.NO. 11855/2023

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BETWEEN:

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THE KARNATAKA PUBLIC SERVICE COMMISSION UDYOGA SOUDHA, PARK HOUSE ROAD, BENGALURU 560 001 REPRESENTED BY ITS SECRETARY

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…PETITIONER

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(BY SRI. SIDHARTH BABURAO, ADV.)

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AND:

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SRI. CHETHANA. H. A. S/O LATE H APPAJI GOWDA AGED ABOUT 38 YEARS RESIDING AT VINYAKA NAGARA FORT ARKALGUD, HASSAN 573 102.

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THE STATE OF KARNATAKA REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF PUBLIC WORKKS, VIKASA SOUDHA, BENGALURU 560 001.

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…RESPONDENTS

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(BY SRI. JAYAKUMAR S.PATIL, SENIOR COUNSEL A/W SRI. MOHAN P.S., ADV. FOR R1,

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SRI. NAVEEN CHANDRASHEKAR, AGA FOR R2.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT ORDER OR DIRECTION IN THE NATURE OF CERTIORARI TO QUASH THE ORDER DATED 05-12-2022 PASSED IN APPLICATION No. 2700/2022 AT ANNEXURE-A BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL ETC.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.08.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, BASAVARAJA J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN and

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HON'BLE MR JUSTICE G BASAVARAJA

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE G BASAVARAJA)

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Writ Petition No.24372 of 2022 is filed by the petitioner challenging the Order dated 23^rd August 2013 passed in Applications No.1579-1581 of 2012 by the Karnataka State Administrative Tribunal (for short hereinafter referred to as the "Tribunal"); and Writ Petition No.11855 of 2023 is filed by the Karnataka Public Service Commission (for short hereinafter referred to as the "KPSC") assailing the order dated 05^th December, 2022 passed in Application No.2700 of 2022 by the Tribunal.

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Facts in brief:

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The case of the applicants in Application No.15791581 of 2012 before the Tribunal who are petitioners in Writ Petition No.24372 of 2022, are:

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Pursuant to Gazette Notification dated 22^nd February, 2007, applications were called for filling up the post of 52 Assistant Executive Engineers by way of direct recruitment, vide Notification No.E(1)17/2007-08/ PSI dated 17^th April, 2007 fixing the last date for submission of applications as 16^th May, 2007. Subsequently, some more posts were included for

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recruitment by second Notification calling applications to fillup 104 posts of Assistant Executive Engineers vide Notification No.E(1)585/2007-08/ PSI dated 08^th August, 2007 which included the 52 posts for which applications were invited vide Notification dated 17^th April, 2007, of which, 84 posts were to be filled by open competition and 20 posts were from in-service candidates. As per the Recruitment Rules, 75% of posts were to be filled by promotions of Assistant Engineers Division-I, 20% by direct recruitment by open competition and 5% by direct recruitment from in-service candidates. Thereafter, based on the competitive written examination, interviews were conducted separately for inservice candidates and for candidates in open competition category and provisional list of 84 candidates selected in open competition was published vide Notification dated 20^th May, 2009; and as regards 20 posts of in-service candidates, the provisional select list was published vide Notification dated 09^th December, 2011.

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2.1. In the interregnum, a question arose as to whether creamy layer policy applied to in-service candidates claiming reservation and was questioned before this Court in Writ

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Petitions No.6500-6508 of 2009 wherein this Court held that the benefit of creamy layer policy was not applicable to inservice candidates and the said order attained finality. Thereafter, revised provisional list in respect of open competition category, as also, in respect of in-service category were published vide Notification dated 09^th December, 2011. After considering the objections, a final select list in respect of open competition category candidates was published on 03^rd January, 2012. The said select list of open competition category candidates was challenged before the Tribunal in the impugned applications.

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2.2. In the first batch, i.e. Applications No.683 to 685 of 2012, the applicant No.1 is an in-service candidate who had claimed selection in open competition category and the applicants in all other Applications were candidates in open competition category. The respondent No.24 in Application No.755 of 2012 was the lone in-service candidate who had claimed selection only in open competition category and has been selected in that category.

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2.3. The contention of the applicants in the Applications

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was that the in-service candidates, who had marked their choice in applications for being considered under in-service quota, were not entitled to claim selection on open competition category unless they had specifically indicated in their applications their wish to be considered for selection in open competition category also and that none of the private respondents sans respondent No.24 in Application No.755 of 2012, who are in-service candidates and who had indicated their choice to be considered in in-service quota, were entitled to be considered in open competition category. It was therefore contended that the selection of the private respondents in open competition category transgressed the recruitment rules and undue advantage has been conferred on in-service candidates who could have been considered only in in-service category and by this method, the chances of the applications for being selected was scuttled.

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2.4. The contention of respondent No.2-KPSC was that, the in-service candidates were also entitled to compete for open competition category posts, if they were within age limit as per Rule 5 of the Special Rules, 2007 and possessed

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requisite qualification. It was further contended that the Application Form is common for both sources and the only requirement for an in-service candidate was to share appropriate circle as against question at Column 7 of the application which state that "Do you claim in-service quota?" which would only mean that such candidate is claiming consideration in in-service quota as well as in open competition category. It was further contended that, in view of the decision of the Tribunal and the High Court, a revised separate provisional select list was prepared and published for open competition category and for in-service category and after considering objections, final select lists were prepared and published.

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2.5. After hearing both sides, the Tribunal came to the conclusion that there was no bar for an in-service candidate to apply and seek selection both under in-service quota and open competition category and that there is no transgression of the Rule nor is there any deviation from the procedure by considering the marks obtained by private respondents in viva voce conducted for in-service candidates for considering their eligibility for selection in open competition category also and

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the private respondents having been selected on the basis of merit, no prejudice is caused to the applicants. Feeling aggrieved by the said order of the Tribunal dated 23^rd August, 2013, the Applicant has preferred Writ Petition No.24372 of 2022.

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Facts in Writ Petition No.11855 of 2023 preferred by the KPSC is pertaining to the applicant in Application No.2700 of 2022 before the Tribunal are that, the Applicant approached the Tribunal seeking direction to the respondents to consider the case of the applicant for selection and appointment to the post of Assistant Executive Engineer Division-I pursuant to revised additional list published vide notification dated 26^th November, 2012 and consequently appoint him to the post of the Assistant Executive Engineer Division-I in view of the order dated 21^st June, 2021 passed by the Co-ordinate Bench of this Court in Writ Petition No.50737 of 2013 and connected petitions. It was contended that the Government has accepted the said decision of this Court and had acted upon it on 31^st May, 2022. The applicant has made representation and though the applicant has secured more marks than the last selected candidate, his case

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is not considered which is opposed to principles of natural justice. Hence, he filed Application before the Tribunal.

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3.1. The Government Pleader opposed the Application

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stating that the judgment of the Co-ordinate Bench of this Court is applicable only in respect of the persons who approached the High Court. It is also contended that at paragraph 23 of the judgment in Writ Petition No.50737 of 2013 and connected matters, it is observed that the petitioners are in no way aggrieved by the selection of 20 candidates coming under 5% quota in in-service category wherein their grievance was only with respect to the selection made over and above 5% of quota i.e. 20 posts relating to the candidates in-service quota considering their candidature in the open competition category. That being the position, later posts of seeking benefit is not permissible since the applicant is a fence-sitter and is not entitled for the benefit extended to the petitioners in Writ Petition No.50737 of 2013 and connected petitions.

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3.2. Having heard the arguments on both sides, the Tribunal by Order dated 05^th December, 2022 disposed of the

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application directing the respondents therein to consider the grievance of the Applicant by considering the case pursuant to the decision rendered by the Co-ordinate Bench of this Court in Writ Petition No.50737 of 2013 and connected petitions by considering the representation of the applicant within a period of four months from the date of receipt of copy of the order. Being aggrieved by the said order of the Tribunal, the Karnataka Public Service Commission is before this Court challenging the said order.

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Submission of the learned counsel for the parties:

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Sri Jayakumar S. Patil, learned Senior counsel appearing along with Sri Mohan P.S., counsel for the petitioner in Writ Petition No.24372 of 2022, submits that, the finding recorded by the Tribunal to dismiss the applications are erroneous in law. The learned Senior Counsel submits that in response to advertisement inviting applications for appointment to the post of Assistant Executive Engineer, the petitioner submitted application seeking selection and appointment against open competition category. After written examination and personality test, the Commission published

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separate provisional select list of open competition category and in-service candidates and after considering the objections, separate final select list of Open competition candidates and in-service candidates were published vide notification dated 03^rd January, 2012. That in the first provisional list the name of the petitioner had found a place, however, in the selection list dated 03^rd January, 2012, the name of the petitioner did not find a place. It is submitted that the recruitment notification worked out on the basis of Recruitment Rules, even though in-service candidates had claimed consideration of their candidature only under "inservice quota". It is submitted that instead of selecting 84 candidates from open competition category, the Commission restricted the selection from open competition to 63 and instead of selecting 20 candidates from in-service category, selected 41 candidates from the said category, which is an error and the same has vitiated the entire selection. It is submitted that the Tribunal ought to have held that the Commission pursuant to notification issued by the respondent No.2-KPSC cannot alter the quota Rules or selection procedure after written examination so also after the

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interview was over and should have adhered to the Notifications issued by it, which affected the valuable right of selection and appointment for the post of Assistant Executive Engineer. It is submitted that Tribunal ought to have seen that the Recruitment Rules provide that 75% of the posts are to be filled up by promotion, 20% by direct recruitment from open competition and 5% by direct recruitment of in-service candidates. Whereas, the selection has been made in violation of Recruitment Rules, which is untenable in the eye of law. Fixation of quota is to hold that no one in one category has any right to stake a claim against the quota earmarked for the other category. Hence, the Tribunal ought to have seen that the in-service candidates have no right to stake a claim against 84 vacancies set apart for open competition category. The Tribunal committed an error in law in not appreciating that if the intention of the Recruiting Authority was to make the in-service candidates eligible to be considered for both categories, then Column 7 which provide "do you claim in-service quota" would render itself redundant. Therefore, the Tribunal ought to have held that the inclusion of in-service candidates in the select list relating to open

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competition category candidates, is bad in law. The learned Senior Counsel submits that the conclusion arrived at by the Tribunal to dismiss the applications is contrary to its own conclusion arrived at paragraph 19 of the order wherein it is observed that "the sources are different, it would have been appropriate for the KPSC to have either prescribed two separate applications or a specific condition therein that an inservice candidate who desires to be considered in open competition should file a separate application".

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4.1. It is submitted that the in-service candidates who

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have been selected in the open competition category themselves had indicated in their applications that they have opted their candidature under in-service category only and not in open competition source. When such being the case, inclusion of 21 more candidates in the list of open competition category affected the rights of open competition category candidates. It is submitted that the Tribunal ought to have set aside the selection of the in-service candidates and directed the KPSC to re-do that part of selection by considering the cases of meritorious open competition candidates. It is submitted that the Tribunal should have held

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that there was no justification to utilize the posts ear-marked for open competition candidates for accommodating the inservice candidates. The learned Senior Counsel submitted that the recruitment of in-service candidates in excess of the notified vacancies amounts to denial and deprivation of the constitutional right enshrined under Articles 14 read with 16(1) of the Constitution of India. It is submitted that observance of instructions is a must and there cannot be any breach of instructions, compliance and obedience of instructions are to ensure fairness in the process of selection. On all these grounds sought to allow the appeal. To fortify his submissions, the learned counsel places reliance on the following decisions:

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AJAY KUMAR SHUKLA AND OTHERS v. ARVIND RAI AND OTHERS rendered in Civil Appeal No.5966 of 2021 and connected appeals decided on 08^th December, 2021;

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K.T. VEERAPPA AND OTHERS v. STATE OF KARNATAKA AND OTHERS [(2006)9, SCC 406];

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STATE OF GUJARAT AND OTHERS v. R.J. PATHAN AND OTHERS [(2022)5 SCC 394]; and

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NAGAPPA v. STATE OF KARNATAKA rendered in Writ Appeal No.1856 of 1986 decided on 01^st August, 1986.

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Sri Siddharth Baburao, learned counsel appearing for the petitioner-Karnataka Public Service Commission in Writ Petition No.11855 of 2023 submitted that the respondent No.1 approached the Tribunal in Application No.2700 of 2022 seeking direction to the respondents to consider the case of the applicant for selection and appointment to the post of Assistant Executive Engineer, Division-I in view of the order passed by this Court in Writ Petition No.50737 of 2013 decided on 21^st June, 2021. The respondent No.1 being a candidate, appeared for the competitive examination. The applicant's name was included in the Additional List dated 26^th November, 2022 prepared in respect of the open competition category candidates. As the matter relating to consideration of in-service candidates in the open competition category was before the Tribunal, and the same was taken before the High Court in Writ Petition No.50737 of 2013 and connected writ petitions, the High Court vide order dated 21^st June, 2021 held that "the petitioners are in no way aggrieved by the selection of 20 candidates coming under 5% quota and relating to the candidates of in-service quota considering their candidature in open competition category." It is further held

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that in order to balance the scale of equity and to meet the ends of justice, sans disturbing the selection of the private respondents, the Statement Government shall consider the case of the petitioners therein for selection in the open competition category and if found eligible and entitled, to accommodate them in the vacant sanctioned posts, if any, and if sanctioned posts are not available, supernumerary posts shall be created to accommodate them by placing them at the bottom of the selection list. Pursuant to the order of this Court in Writ Petition No.50737 of 2013 and connected petitions, the Petitioner-KPSC issued notification where the petitioners in the said writ petition were selected under Open Competition category. In the said writ petition, the respondent No.1 was not a party. The applicant submitted representation dated 08^th January, 2013 to consider his candidature on the ground of directions given by this Court in the above said writ petitions. Since his representation was not considered, he approached the Tribunal after a long gap of nine years. Instead of dismissing the application on the ground of delay and laches, the Tribunal, however, by order dated 05^th November, 2022, directed the respondents to

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consider the representation of the applicant therein within a time limit. The learned counsel submitted that the said order of the Tribunal is opposed to principles of natural justice and the same is liable to be set aside. It is submitted that it is well-settled principle of law, as held in a catena of decisions by the Hon'ble Apex Court, courts cannot create a post or cannot direct the Authority to create a post. The respondent No.1 being a fence-sitter, has approached the Tribunal after the decision of this Court in Writ Petition No.50737 of 2013 and connected writ petitions. The respondent No.1 is also not a party in the said writ petitions. The learned counsel would submit that the petitioner-KPSC is only a selection authority and completes the selection process as prescribed in the C & R Rules of the Appointing Authority and the relevant rules in force. The Appointing Authority had forwarded the number of vacancies to be filled and the KPSC has published a final select list dated 03^rd January, 2012 and forwarded the same to the Government for necessary action and after forwardal of the final select list to the Government, the KPSC becomes functus officio and the Tribunal has erred in directing the petitioner-KPSC would not be within the purview of the

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Petitioner and the same has is liable to be set aside as the decision of this Court in Writ Petition No.50737 of 2013 and connected matters clearly restrict to the petitioners therein and does not extend to other similarly placed candidates. Thus the said judgment is clearly a judgment in persona and not a judgment in rem. Hence, he prays for allowing the petition by setting aside the order of the Tribunal. In support of his submissions, he relied on the following decisions:

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SHOELINE v. COMMISSIONER OF SERVICE TAX AND OTHERS [(2017)16 SCC 104];

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STATE OF UTTAR PRADESH AND OTHERS v. ARVIND KUMAR SRIVASTAVA AND OTHERS [(2015)1 SCC 347];

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Sri Naveen Chandrashekar, learned Additional Government Advocate appearing for respondents 1 and 22 in Writ Petition No.24372 of 2022 supports order of the Tribunal.

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We have given our anxious consideration to the submissions advanced by the learned Counsel appearing for the parties.

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It is the case of the Petitioner in Writ Petition No.24372 of 2022 that the Department of Public Works

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invited applications for appointment of 52 posts of Assistant Executive Engineer. Out of these 52 posts, 42 posts were to be filled by selection of candidates in open competition category and ten posts were to be filled from in-service candidates. Before Tribunal, it was submitted that the recruitment notification worked out on the basis of Recruitment Rules, even though in-service candidates had claimed consideration of their candidature only under inservice quota. It was further submitted that instead of selecting 84 candidates from open competition category, the Commission restricted the selection from open competition category to 63 and instead of selecting 20 candidates from inservice category, selected 41 candidates from the said category which has vitiated the entire selection. The Tribunal by its Order dated 23^rd August, 2013, observed that as per Rule 11 of the Karnataka Civil Services (General Recruitment) Rules, a Government servant applying for an appointment to any service or post has to submit his application through the authority competent to appoint him to the post which he holds at the time of making the application and it is for the authority to decide as to whether the government servant

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shall be permitted to apply and such permission shall ordinarily be granted unless the authority considers that the grant of such permission will not be in public interest and further observed that the candidates who are the private respondents in the instant Applications are in-service candidates and have forwarded their applications to competent authority. The Tribunal observed that neither the Recruitment Rules nor the Notification exclude in-service candidates from seeking selection in open competition category also and held that there was no bar for an in-service candidate to apply and seek selection both in in-service quota and in open competition category and that there is no transgression of the rule by considering the marks obtained by private respondents in viva-voce conducted for in-service candidates' quota for considering their eligibility for selection in open competition category also and that the private respondents having been selected on the basis of merit, no prejudice is caused to the applicants.

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It is settled principle of law that the unselected candidates cannot press into service, a part of Rules while accepting Rules by taking part in the selection process, thus

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one cannot blow hot and cold. Such a selective adoption is not permissible under law. The Hon'ble Apex Court, in the case of ANUPAL SINGH V . STATE OF UTTAR PRADESH reported in (2020) 2 SCC 173 held that a person having consciously participated in the interview cannot turn around and challenge the selection process. Be that as it may, the common order of the Tribunal in Application Nos.683 to 685 of 2012 and connected petitions is passed on 23^rd August, 2013 wherein the petitioner is also one of the applicants in Application Nos.1579 to 1581 of 2012. The petitioner had presented this Writ Petition on 01^st December, 2022, after a lapse of more than nine years of passing the order by the Tribunal.

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The Hon'ble Supreme Court in the case of B.S. BAJWA AND ANOTHER v. STATE OF PUNJAB AND OTHERS reported in AIR 1999 SCF 1510, at paragraphs 7 and 8, has observed as under:

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" 7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on

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the ground of latches because the grievance made made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the order aforesaid persons and the rights inter se had crystalised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D.Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re- opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition.

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8. In view of the above conclusion it is not necessary for us to express any opinion on the merits of the point raised buy B.S. Bajwa and B.D. Gupta. We make it clear that the view thereon taken by the High Court is not to be treated as concluded or having affirmation of any kind. The appeals of B.S.Bajwa and B.D.Gupta are dismissed and the appeal filed by D.P.Bajaj and Jagir Singh is allowed. With the result that the judgment of the Single Judge of the High Court is set aside and the writ petition filed by B.S.Bajwa and B.D.Gupta stand dismissed. "

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It is also pertinent to mention here that the Hon'ble Supreme Court, while considering the principles governing delay and laches, in the case of UNION OF INDIA AND OTHERS v. N. MURUGESAN ETC. reported in (2 022) 2 SCC 25, at paragraph 20 of the judgment, has observed as under:

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" 20.The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is he genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non-consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the Court. "

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The Hon'ble Supreme Court in the case of Chennai Metropolitan Water Supply & Sewerage Board and others v.

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T.T. Murali Babu, (2014) 4 SCC 108, at paragraph 16 of the

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judgment, has held as follows:

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“ 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. ”

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It is also to be mentioned here that the Hon'ble

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Supreme Court, time and again, in a gamut of decisions, has held that delay in approaching adjudicatory forum should be

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satisfactorily explained. In the case on hand, the Tribunal has passed the order on 23^rd August, 2013 and the petitioner has presented the writ petition on 01^st December, 2022, i.e. after a lapse of nearly nine years and the delay in approaching this Court is also not explained to the satisfaction of the Court. In the above view of the matter, so also keeping in mind the above decisions of Hon'ble Supreme Court, we find that there is no water in the petition. The decisions relied upon by the learned counsel for the petitioner would not enure to the benefit of the petitioner.

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As regards, the submission of the learned Counsel in Writ Petition No.11855 of 2023 is concerned, pursuant to issuance of notification by the Department of Public Works for appointment to the post of Assistant Executive Engineer, the private respondent has submitted his application and appeared for competitive examination and was selected in the additional select list published by Notification dated 19^th October, 2012, so also, in the revised additional select list dated 26^th November, 2012. In the interregnum, some of the candidates in the list, have approached this Court in Writ Petition No.50737 of 2013 and connected petitions and this

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Court, by order dated 21^st June, 2021, has held that in order to balance the scale of equity and to meet the ends of justice, sans disturbing the selection of the private respondents, direct the official respondents to consider the case of the petitioners for selection in the open competition category if found eligible and entitled, accommodate them in the vacant sanctioned posts, if any, and if such sanctioned posts are not available, supernumerary posts shall be created to accommodate them. Seeking shelter under the said order, the petitioner made representation dated 08^th January, 2013 to the authorities to consider his candidature for appointment to the post of Assistant Executive Engineer. The said representation having not been considered by the respondent-authorities, the petitioner approached the Tribunal in Application No.2700 of 2022. The Tribunal by order dated 05^th December, 2022, disposed of the Application directing the respondents to consider the grievance of the applicant by considering the case of the petitioner as per the decision of this Court in Writ Petition No.50737 of 2013 and connected writ petitions.

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It is the submission of the learned counsel for the

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petitioner-KPSC that the private respondent herein is not a

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party in Writ Petition No.50737 of 2013 and connected petitions or has he approached the Tribunal challenging the selection Notification. He is just a fence-sitter who was silently watching the proceedings and now wants to come under the umbrella of the benefit extended to the Petitioners in Writ Petition No.50737 of 2013 and connected petitions, which is not permissible. He submits that it is clear from the order passed in Writ No.50737 of 2013 and connected petitions is to extend the benefit to the petitioners therein for considering their candidature for selection in open competition category and further to accommodate them in the vacant sanctioned posts. It was further made clear that if no sanctioned posts are available, then to create supernumerary posts to accommodate them. The private respondent herein is not a party to the Writ Petition No.50737 of 2013 and connected petitions. It is well-settled that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. Those persons who approach the Court on the ground that their counterparts who had approached the Court succeeded in their efforts, then such

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employees cannot claim that the benefit and they would be treated as fence-sitters.

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The Hon'ble Supreme Court in the case of STATE OF UTTAR PRADESH AND OTHERS v. ARVIND KUMAR SRIVASTAVA AND OTHERS reported in (2015)1 SCC 347, has observed as under:

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" 22.1 Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

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22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or

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the acquiescence, would be a valid ground to dismiss their claim.

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22.3. However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. SHARMA & Ors. V. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. "

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In that view of the matter, the Tribunal has committed an error in directing the respondents to consider the case of the private respondent herein who was the Applicant before it.

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