IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITION NO.9928 OF 2019 (S-KSAT) BETWEEN MS. POOJA R D/O RAVI G AGED ABOUT 26 YEARS, RESIDING AT NO.350/J KUMARASWAMY LAYOUT DODDAINAPALYA, HALEPALYA ROAD, TIPTUR TALUK TUMKUR DISTRICT-572 201 (BY SRI BASAVARAJU S, ADVOCATE A/W SRI GOUTHAM A R, ADVOCATE) AND 1. THE STATE OF KARNATAKA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF FOREST ECOLOGY & ENVIRONMENT, VIKAS SOUDHA BANGALORE-560 001 2. THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS & SELECTION AUTHORITY ARANYA BAVANA, MALLESHWARAM BANGALORE-560 003 3. SRI GURULINGAPPA ITAGI FATHER NAME UNKNOWN AGED MAJOR ... PETITIONER 4. MS. BHARATHI CHIPALAKATTI FATHER NAME UNKNOWN AGED MAJOR 5. SRI SACHIN SHIVAIAH SHIVAPAIANAMATHA FATHER NAME UNKNOWN AGED MAJOR.
6. SRI SHIVANAND C PHERALAMATH FATHER NAME UNKNOWN AGED MAJOR 7. MS SUNITHA B M FATHER NAME UNKNOWN AGED MAJOR 8. MS DEEPIKA B R FATHER NAME UNKNOWN AGED MAJOR ALL C/O THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS & THE CHAIRMAN OF THE SELECTION COMMITTEE ARANYA BHAVAN, 18TH CROSS MALLESHWARAM BANGALORE-560 003 ... RESPONDENTS (BY SRI I THARANATH POOJARY, AGA FOR R1& R2 R3 TO R8 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN APPLICATION NO.350/2019 FROM THE KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE, SET ASIDE THE ORDER DATED 08.02.2019 AND ALLOW THE SAID APPLICATION WITH COSTS THROUGHOUT AT ANNNEXURE-P AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, DEVDAS J, MADE THE FOLLOWING:
ORDER The petitioner is before this Court assailing the order dated 08.02.2019 passed by the Karnataka State Administrative Tribunal (hereinafter referred to as the ‘Tribunal’ for short) in Application No.350/2019.
2. The petitioner made an on-line application in response to a notification dated 10.04.2017 issued by the second respondent-Principal Chief Conservator of Forests & Selection Authority, for filling up 288 posts of Deputy Range Forest Officers/Surveyors. The educational qualification prescribed was B.Sc. (Forestry) and B.Sc. (Science) in the ratio of 50:50 and backlog of 41 DRFO/Surveyors totaling to 329 posts were called for. The second respondent published a provisional list on 29.05.2018, of eligible candidates for the post of Deputy Range Forest Officer/Surveyors in the ratio of 1:20 notifying that they were qualified for physical tolerance test and the name of the petitioner is found at Sl.No.92 in the said list. The petitioner, pursuant to the provisional list, appeared for physical tolerance test on 17.06.2018 and she was duly qualified in the physical tolerance test. Subsequent to the said test, another list dated 25.06.2018 was notified and the name of the petitioner is found at Sl.No.343 in the said list. Thereafter the petitioner was called for written test and she appeared in the written test which was conducted on 15.07.2018. It was also provisionally notified that the petitioner had passed in the written test.
3. Thereafter, the second respondent notified the list of candidates who were eligible for being considered for verification of the original documents and also for subjecting them to medical test. In the said list, it was once again published that the name of the petitioner is found at Sl.No.273. Subsequent to the medical test which was conducted on 30.10.2018, the petitioner was declared as medically fit and was called for verification of the original documents. However, the petitioner having noticed that as per the recruitment notification, it was required that the candidates should mention the aggregate of percentage of all the subjects calculated together, while the petitioner had excluded the languages and given the aggregate of only the other subjects. In this regard, the petitioner communicated by E-mail dated 30.05.2018 that she had committed a mistake by giving the aggregate of only the optional subjects and had excluded the languages. Therefore, she requested the selection authority to read the aggregate as 86.25% instead of 89.21%. Thereafter, the second respondent-selection authority communicated to the petitioner vide letter dated 07.06.2018 that on the basis of the information furnished by the petitioner, a list is published in the ratio of 1:20 and the candidature of the petitioner is subject to the terms and conditions thereof. Thereafter the original documents of the petitioner were verified by the second respondent on 30.10.2018 at the time of subjecting the petitioner for medical examination. On 03.01.2019, the second respondent published a final selection list and in the selection list, the petitioner’s name is found at Sl.No.36. However, in the said list in the remarks column, it is stated that on verification of the original documents, it is found that the percentage of the marks furnished by the petitioner in the online application and the marks obtained by the petitioner as verified from the original documents did not tally. As such, the selection of the petitioner was dropped. Being aggrieved, the petitioner approached the Karnataka State Administrative Tribunal. The Tribunal by order dated 08.02.2019 dismissed the application and therefore the petitioner is before this Court.
4. Sri Basavaraju S., learned Counsel for the petitioner submits that the Tribunal and the second respondent-selection authority erred in not noticing that the petitioner herself had made a communication bringing to the notice of the selection authority that she had committed a mistake in filling up the application form and instead of giving the aggregate of all the subjects together, she had excluded languages and given the aggregate of the remaining subjects. In fact, it is submitted that if we go through the selection list and the remarks column attached thereto, several of the candidates had committed the same mistake. The learned Counsel submits that the mistake committed by the petitioner in fact is a curable defect and the Tribunal should have considered this aspect of the matter.
5. In this regard, the learned Counsel places reliance on a decision in the case of Vishwanatha M.S. Vs. Bangalore Water Supply & Sewerage Board in W.P.No.18755/2011 which was disposed of on 06.08.2013, by one of us sitting Single. In the said matter, the issue was that the petitioner had not produced the certificate of physically challenged person as was required under the notification. While considering such a defect in the application, it was held that the defect in fact was a curable defect and it was always open for the authorities to cure the same by providing an opportunity to the candidate. It was also held that non-consideration of the representation made by the candidate to afford an opportunity to produce the certificate, was in violation of the principles of natural justice.
6. Similarly, reliance is placed on a decision of the Kerala High Court in the case of Shaiji Cherukkattil Vs. Kerala Public Service Commission and Anr. reported in Manu/KE/2593/2010. The question involved in the said case was also akin to the one on hand. That was a case where the question was whether the petitioner could be permitted to carry out corrections in the application submitted by her before the Kerala Public Service Commission for selection to the post of Laboratory Assistant in the Kerala Vocational Higher Secondary Education Department, so as to claim the benefit of communal reservation, after the selection list was published and when the petitioner had filled up the column in the application stating that she is not eligible for communal reservation. The learned Single Judge, noticed the earlier decisions of the Kerala High Court in the case of Santhamma Vs. Public Service Commission reported in 1982 KLJ 786 and Kuriakose Vs. State of Kerala and Others reported in 1984 KLT 925, wherein it was held that a rigid adherence to all the conditions in the notification cannot be insisted upon in all cases.
Eradi J., took the view in one of the first cases where the Public Service Commission had insisted on a rigorous compliance with a condition. It was held that the hyper technicality of the breach committed ……. of the condition specified in one of the clauses in the notification inviting applications, would defeat the valuable rights of the citizens. Difficulties arising out of the increase in work load and the like, have to be solved otherwise than by stultifying the rights of those knocking at its doors and waiting there for long, for an employment opportunity.
7. Per contra, the learned Additional Government Advocate, submits that the conditions imposed in the notification cannot be disturbed or relaxed at the request of the candidate. In that regard, the learned AGA relies upon a decision of the Hon’ble Supreme Court in the case of Bedanga Talukdar Vs. Saifudaullah Khan and Others reported in (2011) 12 SCC 85, wherein it was held that selection process has to be conducted strictly in accordance with stipulated selection procedure which needs to be scrupulously maintained.
There cannot be any relaxation in terms and conditions of advertisement unless such power is specifically reserved in relevant rules and/or in advertisement. Even where power of relaxation is or is not provided in relevant rules it must be mentioned in the advertisement. Such power, if exercised should be given due publicity to ensure that those candidates who become eligible due to relaxation are afforded equal opportunity to apply and compete. Therefore it was held that relaxation of any condition in advertisement without due publication is contrary to mandate of equality in Articles 14 and 16 of the Constitution.
8. We have heard the learned Counsels and perused the writ papers.
9. As rightly pointed out by the learned Counsel for the petitioner, one of us sitting single, in similar circumstances, in the case of Vishwanatha M.S. (supra) had held that such defects can only be termed as curable defects and it is within the powers of the selection authorities to afford an opportunity to make the correction. Further more, what we find in this case is that the petitioner, on the basis of the aggregate of marks, would stand above even in the general merit list. However, the petitioner has sought for appointment under the category of 3B. This Court finds support of this view, in a judgment of the Hon’ble Supreme Court, in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and Another reported in (2016) 4 SCC 754, wherein the Hon’ble Supreme Court held that the Division Bench of the High Court erred in not considering the decision rendered in the case of Pushpa Vs. Government (NCT of Delhi) reported in 2009 SCC OnLine Delhi 281. In the said case, the learned Single Judge of the High Court had held that the petitioners therein were entitled to submit the OBC certificates before the provisional certificate list was published to claim the benefit of reservation of OBC category. The Hon’ble Supreme Court held that the learned Single Judge had correctly examined the entire situation not in a pedantic manner but in the backdrop of the object of reservation made to the reserved candidates and keeping in view the law laid down by the Constitution Bench of the Hon’ble Supreme Court in Indra Sawhney Vs. Union of India reported in 1992 Supp (3) SCC 217.
10. It is trite to notice that in the present case, it is not that the petitioner did not process the required qualification. In fact, as noticed earlier even by taking the aggregate of the subjects, the petitioner would still be listed above, having secured 86.25%, whereas the last person in the general merit list had secured 81.47% and in 3B category the last person’s percentage was 79.38%. Therefore, even in the general merit list, the petitioner would have been placed higher in the merit list.
11. There is no dispute that not all mistakes can be termed as curable defects. It is only such mistakes like typographical error or non-mentioning of prefix or suffix and when the documents would speak for themselves. A mistake committed in mentioning the aggregate which otherwise could be verified from the original records that the petitioner had in fact secured 86.25% could therefore be termed as a curable defect.
It was a pure inadvertence on the part of the petitioner in not following the instructions in the Notification. Such defects are definitely curable defects.
12. We are not oblivious of the position of law declared by the Hon’ble Supreme Court that when once the selection process is completed, relaxation should not be given. However, in this matter, most importantly, it is to be noticed that out of the posts that were notified for selection, one post in the category of 3B is still lying vacant. Therefore, even in terms of the judgments referred above, when a vacant post is available for the petitioner to be filled in accordance with law, this Court, in the interest of justice, would deem it fit to hold that the case of the petitioner needs to be considered sympathetically.
13. The writ petition is accordingly allowed and a direction is hereby issued to the second respondent-the Principal Chief Conservator of Forests & Selection Authority, Bengaluru, to consider the case of the petitioner, in view of the observations made above. The second respondent is hereby directed to consider selection of the petitioner for the post of Deputy Range Forest Officer/Surveyor as expeditiously as possible at any rate within a period of two months from the date of receipt of a certified copy of this order. It is hereby made clear that if any other candidate in 3B category was rejected for the same reason, such candidates case may also be considered along with the petitioner.
SD/- JUDGE SD/- JUDGE JT/-