Purandara & Ors Vs. Mahadesha S. & Ors  Insc 431 (23 August 2005)
Pasayat & H.K. Sema
Civil Appeal Nos.2291-2293/2002, 2294-2315/2002 and 2316-2318/2002) ARIJIT
in these appeals is to the judgment of a Division Bench of the Karnataka High
Court. The basic grievance of the appellants is that the High Court adjudicated
an issue which was not the subject-matter of challenge before the High Court
and in any event persons who are affected by the decision were not impleaded as
background which is almost undisputed needs to be noted in brief.
notification dated 25.2.1999 the Deputy Director for Public Instruction, Mandya
District, Mandya called for applications from qualified candidates for filling
up 918 posts of Assistant Master/Primary school teachers in Mandya district and
fixed 31.3.1999 as the last date for receipt of applications. The notification
stipulated that the application should be presented in person by the candidate
on or before 5 p.m. on 31.3.1999 and the applicant
should be ordinarily resident of Mandya district. Writ petitions were filed by
some persons belonging to Mandya district (Writ petition nos.16023-16072/1999 Smt.
H. Girija and Ors. vs. Stat of Karnataka and Ors.) challenging the aforesaid
stipulations. The High Court by order dated 28.7.1999 set aside the aforesaid
conditions. During pendency of the writ petitions a provisional list of
candidates selected was prepared and published on 14.6.1999. In view of the
judgment passed in writ petition nos.16023-16072/1999 a notification was issued
extending the time for making applications upto 31.10.1999. In the meantime the
Karnataka High Court held that 10% weightage given to the rural candidates was
unconstitutional. Judgment was rendered by a learned Single Judge. A Division
Bench of the High Court clarified on 16.12.1999 that the decision would not
affect any appointment or selection during the pendency of the writ appeal. A
Circular dated 22.12.1979 was issued giving the instructions as to the manner
of implementation of the Division Bench's decision. On 23.5.2000 it was
clarified that candidates in the provisional list dated 14.6.1999 would be
entitled to rural weightage and candidates who applied pursuant to the decision
in writ petitions nos. 16023-16072/1999 dated 28.7.1999 would not be entitled
to rural weightage. The select list was published on 4.7.2000.
Original Applications were filed before the Karnataka Administrative Tribunal, Bangalore (in short the 'Tribunal')
questioning correctness of the clarification dated 23.5.2000 and the select
list published. Prayer was made to direct re-doing of selection process by
considering all the applicants awarding rural weightage, inviting objections
from the affected candidates and thereafter publish the final select list. The
State and its functionaries contended that the procedure followed was in order.
The rural weightage was modified, the provisional list dated 14.6.1999 was kept
in tact and after examining the applications filed during the extended time the
final list was published which was in accordance with the High Court's judgment
in Girja's case referred to above. It was also contended that there was not
much difference between the provisional list and the list published on
4.7.2000. A large number of candidates applied to the Tribunal for being impleaded
as respondents and they supported the stand of State and its functionaries.
to the Tribunal the issues which required examination were:
the rural weightage can be extended to any selection made after 26.11.1999 i.e.
the date of the judgment in writ appeal nos.5807 of 1998.
the list dated 14.6.1999 could be regarded as a selection list entitling the
candidates mentioned therein to rural weightage.
in an incomplete selection process, two standards could be adopted for
selection of candidates.
the selection list dated 4.7.2000 can be maintained.
Tribunal held that if the final list was not published on or before 26.11.1999,
there was no way by which the select list could be published with the eligible
selected candidates being given rural weightage. With reference to Girja's case
(supra) it was held that in the said case all that was said was that processing
undergone shall not be nullified. But, it did say that rural weightage can be
given to any of the candidates. Grant of rural weightage was not in issue in Girja's
case (supra) and, therefore, there was no question of any rural weightage, and
adopting two standards for selection of candidates.
it was held that the clarification dated 23.5.2000 was contrary to the decision
of the Division Bench in Basavraj Nagoor's case and was without authority of
selecting authority was directed to prepare a fresh provisional list, call for
objections as contemplated in clause 11 of the notification dated 25.2.1999,
and thereafter publish the select list. Exercise was directed to be undertaken
within six months. Writ petitions were filed before the High Court questioning
High Court after hearing the parties noted two questions, firstly, the question
of rural weightage and secondly whether provisional list published on 14.6.1999
to be treated as final list. The correctness of the view expressed by the
Tribunal on these issues was the subject- matter of challenge in the writ
petitions. It was held that the Tribunal's view was in order.
it was urged before the High Court by the writ petitioners that the selection process
was vitiated and some persons who were otherwise ineligible had been selected
and their names have been placed in the select list. On behalf of the
respondents before the High Court it was urged that such a plea was not raised
before the Tribunal and there was specific pleading to this effect and in any
event this was a fresh cause of action emanating from the final selection and
that had nothing to do with the controversy before the Tribunal. The High Court
felt that there was some justification in the objection. It, however, felt that
in the broader interests of justice, keeping in view need to avoid litigations
certain directions were necessary to be given to do complete justice. It gave
certain directions which the appellants submit were not sustainable. They were
not parties in the writ petitions, were not heard but orders which
prejudicially and adversely affect their selection were passed.
response, learned counsel for the respondents who are writ petitioner before
the High Court submitted that the High Court is not justified in saying that
there was no specific challenge and in any event the High Court kept in view
the law laid down by the High Court in the connected matters and in view of the
decision of this Court.
merely because they were not parties they cannot make any grievance
particularly when the directions given were with a view to shorten litigations
and to effectuate the ultimate purpose for which the notifications were issued
and were intended to give full effect to the earlier decisions of the High
find that the writ petitioners had not questioned the selection of the persons
who are affected by the High Court's impugned order. They were not applicants
before the Tribunal. On the contrary they questioned correctness of the view
expressed by the Tribunal allowing the original applications filed by some of
the respondents. Therefore, the subject-matter of adjudication before the High
Court could not have been enlarged by the High Court at the instance of the writ
V.K. Majotra v. Union of India (2003 (8) SCC 40) this Court observed as under:
for the parties are right in submitting that the point on which the writ
petition has been disposed of was not raised by the parties in their pleadings.
The parties were not at issue on the point decided by the High Court....."
In State of Maharashtra v. Jalgaon Municipal Council (2003
(9) SCC 731) this Court at page 757 observed as under:
the absence of any challenge having been laid, the constitutional validity of
the amendment cannot be gone into....." Recently, in The President, Poornathrayisha
Seva Sangham, Thripunithura v. K. Thilakan Kavenal & Ors. (2005 (2) SCALE
1) in para 9 it was observed as under:
being the position, we feel that nothing further remains to be done in this
appeal except noticing that certain observations made, as regards the
functioning of the appellant-society and its credibility were unnecessary. For
the purpose of adjudication of the dispute before the High Court which only
related to the permission granted to use Oottupura, other observations and
views expressed by the Division Bench are, therefore, treated as inoperative.
disputed facts were involved, the High Court should not have gone into them
even in respect of the primary grievances of the writ petitioner".
aforesaid position was recently highlighted in Secretary to the Govt. and
Another v. M. Senthil Kumar (2005 (3) SCC 451).
the direction given for filing affidavits and the consequential action to be
taken thereon cannot be maintained and are vacated. We make it clear that we
have not expressed any opinion on the correctness or otherwise of the view
expressed by the High Court. We have interfered only on the ground that such an
issue was not before the Tribunal and nobody had questioned in this regard
before the Tribunal. It is pointed out by learned counsel for the appellants
that some of them have got employment elsewhere and have no interest in those
appeals. The appellants shall file a list of such persons before the concerned
authorities within three weeks from today. The cases of all those who are
eligible shall be considered in respect of the consequential vacancies. Cases
of the respondents shall be taken up on the basis of their merit to decide
whether they can be appointed.
appeals are accordingly disposed of with no order as to costs.