Hon'ble Judges/Coram:
N. Kumar and B. Veerappa

ORDER

N. Kumar, J.

1. A classic case of white coloured, educated, highly placed men holding responsible posts in the administration, betraying the confidence reposed in them by the public of Karnataka is the subject matter of these proceedings. Behind the scene, how fraud, illegality, irregularity, deceit, is practiced to manipulate the results of the examination, and some of the selected candidates even before they are born in the cadre, are suffering from the vice of corruption, nepotism, casteism. The facts set out herein will unravel this sordid state of affairs in the Karnataka Public Service Commission, a premier, constitutional authority, constituted to recruit educated people to Civil Services, which is the subject matter of this public interest litigation.

2. The petitioners have preferred these writ petitions seeking a writ of certiorari for quashing the endorsement dated 09.07.2012 at Annexure N issued by the 2nd respondent, a writ in the nature of mandamus directing the respondents to reconsider the representation at Annexure-L made by them in the light of the final report of investigation submitted by the CID at Annexure-J and to direct the respondents to take appropriate steps/actions with regard to the vitiated selection process of 1998, 1999 and 2004, Gazetted Group A and B posts.

3. The said writ petitions are filed in the nature of class action or in public interest. Before we deal with the issues arising in these cases for a proper appreciation, it is necessary to notice the background of this litigation.

4. Karnataka Public Service Commission (for short, hereinafter referred to as 'the KPSC') issued a notification dated 09.03.1998 inviting applications for recruitment to the posts of Gazetted Probationers (Group A and B posts) in pursuance of a request of the State Government made on 04.02.1998 to select 415 candidates for Group A and Group B posts. In response to the said notification, KPSC received 85,598 applications. On scrutiny, 79,130 candidates were found eligible for preliminary examination. The mode of selection to these posts is governed by the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examination) Rules, 1997 (for short 'the Recruitment Rules') made by the Government of Karnataka in exercise of power under Section 3(1) read with Section 8 of the Karnataka State Civil Services Act, 1978.

5. Rule 4 of the Recruitment Rules requires that a combined competitive examination for recruitment to one or more of the services or group of posts (mentioned in Schedule 1 to the Rules) shall be held every year, subject to availability of vacancies, in the manner set out in Schedule II to the Rules. As per the scheme of examination contained in Schedule II to the Rules, the competitive examination comprises of two stages viz.,

"1. Preliminary examination (Objective Type) for selection of candidates for the main examination; and

2. Main examination (written examination and personality test) for selection of candidates for various services and posts."

6. The preliminary examination was held on 30.08.1998 and 56,228 candidates appeared for the said examination. The results of the preliminary examination were announced by KPSC on 16.11.1998 and 9,857 candidates were declared eligible for the main examination, keeping in view the prescribed ratio of 1:20 and also to accommodate the candidates belonging to SC, ST and OB classes in the same ratio. The main examination was held between 09.04.1999 and 03.05.1999. On 12.1.2000 the results of the main examination were announced and 2,397 candidates were qualified for personality test (interview). Keeping in view the ratio of 1:5 and accommodating the same ratio of number of candidates belonging to SC, ST and OB classes. 1,209 candidates who had failed in the compulsory papers (Kannada and English) were not considered for ranking. The personality test which was held between 19.06.2000 and 31.07.2000, could not be held due to certain administrative reasons. Subsequently, the Government withdrew the vacancies on 14.08.2000, but again referred back the vacancies to KPSC in June 2001. Therefore, the personality tests were held only in July and August, 2001. The provisional list of selected candidates was published on 28.09.2001 in the Official Gazette.

7. In the meanwhile, in February, 2000, Eight candidates who had appeared for the main (Written) Examination, but had failed in the compulsory papers of Kannada and/or English, filed W.P. Nos. 5332-5339/2000 alleging serious irregularities in evaluation of answer scripts in regard to the main examination and sought a direction for re-valuation of their answer scripts in compulsory subjects and for other reliefs. Another candidate who failed in the compulsory subjects filed W.P. No. 7022/2000 seeking a direction to KPSC to revalue his answer script in compulsory English papers. In both the writ petitions, petitioners' Counsel raised several grounds. The KPSC resisted the said writ petitions contending that the examinations had been conducted in accordance with the Recruitment Rules. It denied any irregularity either in conducting the examination or in the valuation of answer scripts. It pointed out that all the writ petitioners had not failed in Kannada and English papers; that only 3 had failed in English and one had failed in Kannada paper and others had passed the compulsory papers, but did not become eligible for personality test as they did not secure sufficient marks to be called for personality test. KPSC set out the procedure adopted for evaluation of answer scripts in their statement of objections. When the said writ petitions came up for consideration before the learned Single Judge, it was submitted that the issues raised in the writ petitions were of considerable importance and even though the petitioners in the writ petitions had made individual grievances in regard to valuation of their answer scripts, several other infirmities which had been pointed out related to public interest and therefore it was desirable to refer the matter to the Division Bench. The learned Single Judge, therefore, by a considered and detailed order dated 21.03.2000, referred the said writ petitions to the Division Bench.

8. In the meanwhile, 24 other candidates also approached this Court with a similar prayer. Hence, those petitions were also clubbed with W.P. Nos. 5332-39/2000 and W.P. No. 7022/2000. Before the Division Bench, KPSC pointed out that as recruitment related to State Service, and as the Karnataka Administrative Tribunal was functional by appointment of necessary members, the writ petitions were not maintainable. The Division Bench accepted the said contention and transferred all 33 writ petitions to the Tribunal with a direction to treat the writ petitions as Applications and adjudicate the same in accordance with law. Accordingly, the Tribunal registered the transferred writ petitions as Applications and assigned numbers. Nine other candidates directly approached the Tribunal in Application Nos. 8087, 8274, 8275, 8442 to 8446 to 8446 and 8502 of 2001. Petitions transferred by the High Court to the Tribunal and these 9 applications were all clubbed together. In the course of hearing, the Tribunal directed KSPC to produce the following:

"(i) The answer scripts of Rameshwarappa and two of his relatives who had secured top ranks, as also the answer scripts of Sheriar Khan and one Virupaksha whose father was a Deputy Secretary of KPSC.

(ii) Model answers.

(iii) The list of Examiners, Head Examiners and Chief Examiners, who had evaluated the answer scripts and tabulated the statements, indicating who had valued the answer scripts of applicants and others."

9. All these documents were produced by KPSC and considered by the Tribunal. The arguments were concluded on 02.11.2001 and the Tribunal reserved the applications for orders.

10. On 19.11.2001 the Tribunal issued a direction to KPSC to maintain status quo until the disposal of the Applications. The Tribunal also suggested to the learned counsel for KPSC that KPSC may produce the marks assigned to the top 50 candidates in each category (by the Examiner, Head Examiner and the Chief Examiner) and posted the matters to 21.11.2001. KPSC sought certain clarification in regard to suggestion of the Tribunal for production of documents. Thereafter the learned counsel for KPSC sought time to consult the Commission and make submissions. For that purpose the matter was adjourned to 22.11.2001 and again to 28.11.2001. On 28.11.2001, the learned counsel for the KPSC submitted that the Secretary of the Commission was away on training at Mussoorie for a period of six to eight weeks, and the keys of the almirah in which the records were kept were with him and therefore the information could not be produced immediately. Even otherwise he submitted that the KPSC was unwilling to give the information sought. To that effect, a memo came to be filed. In those circumstances, the Tribunal, by order dated 06.02.2002 allowed the Applications, on the ground that awarding of marks to candidates was not fair and therefore the merit list was vitiated. The Tribunal directed that KPSC shall get the answer scripts freshly valued by appointing the examiners who are in no way interested in the candidates who had taken the examination and it also issued directions as to who should be the examiner, how they should be selected and to formulate a scheme for valuation etc.

11. Feeling aggrieved by the said order, the KPSC filed writ petition Nos. 12548-589/2002 and sought quashing of the order passed by the Tribunal. Respondent Nos. 1 to 42 were the applicants before the Tribunal and 43rd respondent was the State Government. Several selected candidates, whose names appeared in the provisional select list published by the KPSC, also filed writ petitions challenging the order of the Tribunal. All these writ petitions were clubbed together. When these petitions came up for consideration for the interim prayer on 19.3.2002, the learned Counsel for the KPSC voluntarily produced the marks obtained by the top 50 candidates in each of the categories with an abstract, as also the particulars of moderation (i.e., marks increased/decreased by the Head Examiners/Chief Examiners) in regard to all candidates, who would become eligible for personality test. This was precisely what the Tribunal wanted KPSC to do, which the KPSC declined to do, which resulted in the Tribunal passing the order.

12. After hearing the rival contentions in regard to interim prayer, the High Court directed the KPSC to produce the list of candidates in whose cases the variation of marks was plus or minus 20 or above (Out of 300 marks) in a subject and also to furnish the particulars of cases where the Chief Examiners had done random revaluation with particulars of difference in marks. In response to the same, on 21.3.2002 KPSC made available for the perusal of the Court, statements showing the subject wise marks awarded by the Examiner, Head Examiner and Chief Examiner where the difference was plus or minus 20 or above with subject wise abstracts.

13. On 27.03.2002 KPSC offered to re-do the moderation and circulated its proposals to all the Counsel. However, as the service of respondents was not complete and as the matter was being heard only with reference to the interim prayer, the said memo was not filed. After service, during the course of final arguments on 22.7.2002, KPSC filed the said memo dated 27.3.2002 offering to redo the moderation, without prejudice to its contentions.

14. It was also submitted on behalf of KPSC that an in-house inquiry was held by a Three Member Sub-Committee of the KPSC in regard to the alleged irregularities, and a report had been submitted to the effect that the results of the ten candidates were vitiated by malpractice and recommending the cancellation of their results after following the necessary procedures and further recommending certain other steps. It assured that it would also initiate action in terms of the said report. A copy of the said report was made available to the High Court for perusal.

15. However the contesting respondents (applicants before the Tribunal) were not however willing for restricting the revaluation/moderation in the manner suggested by KPSC in its memo filed on 22.7.2002. After considering the aforesaid material and hearing the learned counsel appearing for the parties, the High Court formulated the following points for consideration:

"1. Whether the applications are liable to be rejected for non-joinder of selected candidates as parties?

2. Whether there were any irregularities in the evaluation/moderation?"

By a detailed order referring to several judgments of the Apex Court, the High Court held that there was no need for the applicants before the Tribunal to implead all the candidates who were qualified for the personality test or all selected candidates.

16. Insofar the irregularities in the evaluation and moderation, after taking note of the judgment of the Apex Court, the guidelines followed by the KPSC, by a reasoned order, the High Court held that mere doubts and apprehension without factual basis would not lead to inference that the valuations were not done properly. Thereafter they examined the material placed on record and on such verification, they found that in respect of 7 optional subjects (out of total 30 optional subjects) viz., Animal Husbandry, Civil Engineering, Electrical Engineering, Mechanical Engineering, Philosophy, Geology and Urdu, a candidate had to write two papers each on these subjects. It was held that as the variation of marks had not exceeded plus or minus 20 marks (out of 300 marks) in regard to any answer scripts, there was no need to adopt any scaling technique, moderation and therefore, the High Court declined to interfere with the valuation in respect of the said papers.

17. In respect of 4 optional subjects viz., Law, Statistics, Hindi and Management, the variation beyond plus or minus 20 marks (out of 300 marks) was nil in regard to some papers and very marginal in other papers and therefore, the High Court held there was no need to adopt any scaling technique moderation. Accordingly they declined to interfere with the valuation in respect of the said papers also.

18. In regard to the optional subject Chemistry also the variation was only in 3 answer scripts beyond plus or minus 20 marks and therefore they concluded that there were no irregularities and was no need for scaling technique moderation and consequently they declined to interfere with the valuation process. However, in regard to optional subjects Agriculture and Marketing, Criminology and other 16 optional subjects and General studies, the variation exceeded plus or minus 20 marks, which were substantial. In the judgment they have given a tabular column pointing out the marks assigned and the re-valuation marks assigned by Head Examiner, Chief Examiner as to what is the original marks, what is the revised figures and then held that the large variation in the figures earlier furnished and subsequently modified, as to the answer scripts that were moderated raises a doubt about the actual number of answer scripts reviewed by Head Examiner and Chief Examiner. In respect of such variation no effort was made to adopt the scaling technique of moderation by applying an upward or downward revision to all the answer scripts evaluated by the respective examiners. Further, in regard to most of the subjects, the random review was not done to the extent suggested in the guidelines i.e., (5% of top level answer scripts and overall random review of 10%). No minutes or record has also been maintained to show whether moderation was done by the Head Examiners/Chief Examiners in the manner required by the guidelines. The High Court held that the answer scripts in the aforesaid subjects required proper review. In fact, KPSC having realized inadequacies/irregularities also agreed to do the moderation by applying scaling Technique (as stated in their memo dated 27.03.2002 filed on 22.07.2002).

19. The High Court also found that there was serious irregularities in the review valuation by one of the Chief Examiners (Professor K.S. Shivanna) in regard to some candidates in particular, one K. Rameswarappa and his family members (B.S. Nagaraj and B.S. Triveni), which when disclosed in the news papers led to the filing of the writ petitions. In fact the facts which were gathered by the subcommittee constituted by KPSC itself in its investigation and the conclusions were extracted in the said order. After noting the same it was held that Professor K.S. Shivanna, who randomly reviewed 127 answer scripts in History (I and II) and General Studies (I and II) as Chief Examiner had played havoc by awarding abnormal high marks in the table in tabular column. The revised marks awarded are clearly mentioned. Further, the High Court noticed that in some cases, Professor K.S. Shivanna as Chief Examiner while drastically increased the marks of a candidate in a particular category also drastically reduced the marks of another candidate, apparently to enable favoured candidates to have a better chance of selection. The particulars are furnished. As a result, the marks of candidates No. 409001 and 131377 in category 3A were increased from 955 to 1013 and 902 to 977 whereas, the marks of the candidate No. 111237 went down from 1054 to 973. As a result the marks of candidate (SC) No. 117641 went up from 811 to 1049 and candidate (SC) 11742 went down from 1072 to 1045. Having regard to the number of answer scripts in History (4389 and 4386 answer scripts) and General Studies (10493 and 10425 answer scripts), it is doubtful whether Professor K.S. Shivanna, who did random review in all 127 answer scripts of History and General Studies subjects could have zeroed in three papers each of K. Rameshwarappa and three members (B.S. Nagaraj, B.S. Triveni and B.S. Hemalatha) or four papers each of Pratap and M. Leela. Therefore final inevitable inference was to the effect that there had been large scale irregularities where Professor K.S. Shivanna was involved as Chief Examiner.

20. On a closer scrutiny of the aforesaid material and the report submitted by Professor K.S. Shivanna, the High Court was satisfied that there were irregularities in the random review of History (I and II) and General Studies (I and II) by Professor K.S. Shivanna and having regard to inadequate and/or improper moderation of other seventeen subjects (two papers each), the entire process of moderation of more papers (i.e., 18 optional subjects and General Studies) was required to be done afresh. Therefore, it allowed the writ petitions in part and gave several directions to the KPSC. It directed fresh evaluation in terms of para 78 of its order, directed KPSC to re-do a fresh moderation in regard to the Eighteen optional subjects and also General Studies in the manner suggested by KPSC in para (b) of its memo dated 27.3.2002. It also directed the KPSC to revalue the compulsory papers in (English and/or Kannada) subjects in respect of those candidates who approached this Court or the Tribunal for such revaluation before the date of the order and after revaluation and moderation the KPSC should redo the list of candidates to be called for personality test, as per the Rules and then proceed with the selection as per the Rules. If on revaluation, such candidates were found to be qualified, they should also be considered for selection of candidates for interview.

21. By an order dated 10.2.2003 I.A. III filed by KPSC on 11.11.2002 for clarification of the order dated 11.10.2002 came to be rejected. I.A. IV filed by KPSC was allowed in part, accepting the request of KPSC to carry out the moderation/random review in respect of the 4 papers i.e., (Animal Husbandry and Veterinary Science - I and II and Geology - I and II). Again one more application was filed as per I.A. 5 seeking some clarification regarding the method of scaling and it was also clarified.

22. Aggrieved by the said order of the High Court, the unsuccessful candidates Dr. K. Rameshwarappa and others preferred a Special Leave Petition before the Hon'ble Supreme Court. However KPSC accepted the said judgment. The Hon'ble Supreme Court in Civil Appeal Nos. 6172-6222/2005, 6313/2005 and 6223-6312/2005 after hearing all the parties held that they were satisfied that no interference was called for as the High Court had taken care to safe guard the interest of all concerned, to rule out the possibility of any injustice directions have been issued to deal with the peculiar facts of the case. Therefore Civil Appeals came to be dismissed on 6.10.2005.

23. Subsequent to the order passed by the Hon'ble Supreme Court affirming the order passed by this Court, in terms of the direction issued in the writ petition, the KPSC conducted preliminary examination as well as main examination and announced the new eligibility list of 1932 candidates for personality test on 26.11.2005. The KPSC conducted the personality test during the period from 28.12.2005 to 08.02.2006. On 13.02.2006, KPSC published provisional selection list of 383 candidates and also called for objections to that list. Objections were filed. On consideration of the said objections, the KPSC published the final selection list of 383 candidates on 28.02.2006. Thereafter, the said final selection list was forwarded to the Government for appointment. The candidates whose name did not figure in the final list, challenged the final selection list before the Karnataka Administrative Tribunal in March, 2006. The said applications are pending before the Tribunal even to this date.

24. As no interim order was passed by the Karnataka Administrative Tribunal, the Government proceeded to issue appointment orders to 383 selected candidates and accordingly, they were appointed for the post in various departments of the Government. The petitioners herein filed WP No. 11550/2008 seeking a writ of mandamus directing the Central Bureau of Investigation to thoroughly enquire into the whole selection process of the years 1998, 1999 and 2004 batches, keeping in view the points that are raised in this writ petition and as per the recommendation of KK Mishra Committee's report at Annexure-V and to take suitable action.

25. In para 1 of the said writ petition, it is stated that common question of law and facts are involved in this writ petition. Although no relief is claimed by the petitioners, separate and individual Court fee is paid in the writ petition. In para 21, they have contended that the issue of illegalities and irregularities raised in the writ petition are very grave and affect the lives of not only the meritorious candidates, but also the people of the State. They could be brought out only on thorough and impartial investigation by premier investigating authority, i.e., the Central Bureau of Investigation. The petitioners had approached various authorities of the State by making representation containing the details mentioned in the writ petition seeking thorough enquiry by Central Bureau of Investigation, but none of the authorities has taken any steps in this regard. Having no other alternative of getting substantial justice, the petitioners have approached this Court invoking plenary powers.

26. In the writ petition, they have set out selection process in brief and the irregularities committed in the selection during 1998 batch and set out the process of candidates selected without writing the examination. For this, no corroborative information have been given by KPSC to the Hon'ble High Court of Karnataka. It is the contention of petitioners that the KPSC has buried the truth and has mislead the High Court which has resulted in grave loss to the meritorious candidates. The candidates are appointed under reserved category without getting validity certificate, the validity certificate is issued without necessary enquiry and valid material. The candidates who are not in the merit list, are selected by caste manipulation during the preparation of eligibility list for the personality test. The discrepancies are in the selection list, ratio in calling for personality test, in accepting the reserved caste/category/income certificate of the candidates, in selection of the candidates without mentioning their qualification, in selecting candidates who are over age etc., The action of respondent No. 1 shows illegal nexus between the individual candidate and respondent No. 1 in accepting bogus certificates, discriminatory treatment. Accordingly, they pointed out the irregularities in 1999 and 2004 selection and they contend that the information furnished by them is only the gist of matter and therefore, they wanted an enquiry by the independent agency like Central Bureau of Investigation.

27. When these writ petitions came up for consideration before the learned Single Judge on 16.02.2009, after hearing the learned Counsel for the petitioners, the Court observed as under:

"Though the petitioners have not been selected and it is submitted that they have already approached the Karnataka Administrative Tribunal for individual relief's, in this writ petition the petitioners want a direction to the Central Bureau of Investigation to unearth the fraud which is going on in the selection process. It is in the nature of class action. Therefore, it would be appropriate that this writ petition be treated as a Public Interest Litigation and accordingly dealt with.

Hence, petitioners are permitted to file one more set of papers and thereafter, office was directed to post it before the Court dealing with Public Interest Litigation."

28. On 12.03.2010, when the matter was listed before the Division Bench of this Court, the learned Government Advocate accepted notice for the Government. The petitioner's Counsel was permitted to take out notice on the standing counsel for respondent No. 2 and the matter was ordered to be listed, next week. On 16.12.2010, when the matter was listed before the bench, presided by the Hon'ble Chief Justice, the Government placed on record the report of Sri. KK Mishra, the Additional Chief Secretary and Principal Secretary to the Government, Commerce and Industries Department. Thereafter, the learned Principal Government Advocate submitted that the Government would order for investigation into the matter through the CID. The said suggestion was accepted by the Court as fair and reasonable. Thereafter, the Court directed the State Government to get the matter investigated through the CID by ensuring that the investigation is carried out by the Officer not below the rank of Deputy Inspector General of Police.

29. This Court was of the view that the investigation process deserved to be monitored on regular basis. Therefore, they nominated Hon'ble Mr. Justice Ajit J Gunjal, the then sitting Judge of this Court to monitor the investigation. For the aforesaid purpose, they directed the authorities to file all papers produced during the process of investigation. Further, they directed that the investigating officer should present for the consideration of Hon'ble Mr. Justice Ajit J Gunjal, the entire investigation carried out on fortnightly basis. Further, they observed that the Hon'ble Mr. Justice Ajit J Gunjal should record his synopsis on the investigation file, when the same was placed before him on every alternative Friday. It was made clear that it was also open to him to point out the deficiencies and other ancillary avenues, that were required to be probed during the on going process of investigation. They expected that the report should be presented to the Court by the CID as expeditiously as possible not later than 31.03.2011. They directed the office to list the writ petitions on 05.04.2011.

30. In the meanwhile, the candidates who were successful, filed petition seeking review of the said order dated 16.12.2010. The said review petition was ordered to be listed along with writ petitions on 05.04.2011. On 24.05.2011, the enquiry report alongwith annexures comprising two volumes was filed on behalf of the respondents in Court. It was taken on record subject to all just exceptions. Counsel for respondent No. 2 undertook to furnish the copy of enquiry report along with annexures to the learned Counsel for the petitioner. On 21.06.2011, learned Counsel for the petitioners expressed their agitation against the report based on the enquiry conducted by the Criminal Investigation Department, Bengaluru. They submitted that the report itself was not sufficient and the investigation could not be carried out owing to paucity of time. The report is in respect of the allegation made in the writ petition. Though extensive material has been furnished by the petitioners to the investigating agency, no investigation was carried out on the basis of the material furnished.

31. The learned Addl. Government Advocate took time to enable him to examine the matter further and to obtain instructions, if necessary. On 12.07.2011 learned Advocate General sought adjournment stating that the fresh enquiry was sought to be conducted by registering a case. Two weeks time was granted on 23.08.2011. Sri. B.A. Padmanayana, Deputy Inspector General of Police, CID, Bengaluru filed the affidavit dated 20.08.2011, wherein, he stated that the entire investigation process would be completed and the report would be submitted within six months from the said date. The said affidavit reveals that the Hon'ble Mr. Justice Ajit J Gunjal the sitting Judge of this Court was being kept abreast of the progress in the investigation. The Court felt when the scope of investigation had been enlarged, it might not be possible for the sitting Judge of this Court to devote the time required to monitor the investigation. Accordingly, at the joint request of learned Counsel for rival parties, Hon'ble Mr. Justice Mohammed Anwar, the former Judge of this Court was nominated to monitor the investigation process.

32. When the report was submitted by CID, it was made clear in the said order that in the process of investigation, it was open to the petitioners or any other persons to provide information as well as the material connected with the process of investigation to Hon'ble Mr. Justice Mohammed Anwar. Likewise, the investigating agency should report to the Hon'ble nominated judge on every alternative day so as to bring to his notice the progress in investigation and also enable him to monitor the investigation by guiding the investigating officer, if necessary. Accordingly, all the writ petitions and review petition stood disposed of in the aforesaid terms. In view of the disposal of the main writ petitions, all pending miscellaneous applications were disposed of as they did not survive for consideration. On request made for extension of time, two weeks time to file final report was granted on 20.03.2012. On 20.04.2012, the report of the Forensic Science Laboratory, Bengaluru as well as Truth Labs of Hyderabad were placed on record alongwith the Investigating Report. In fact, chargesheet has also been filed on the basis of investigation report. IA. II/2012 in W.P. No. 9098/2009 came to be dismissed as infructuous. However, it was made clear that if the petitioners were still dissatisfied, liberty was granted to them to approach the Court by way of fresh proceedings. Accordingly, the said proceedings came to an end.

33. It is pertinent to point out at this stage that based on the CID report, chargesheet was filed against the persons who indulged in illegalities. In fact, in the covering letter addressed by the office of Director General of Police to the Chief Secretary, it was stated that certain irregularities which attracted departmental action were noticed during the course of investigation apart from the criminal acts punishable under IPC. A report was prepared covering irregularities which came to light during the course of investigation in selection of 1998, 1999 and 2004 batches. In the letter addressed on 09.04.2012 by the Director General of Police to the Chief Secretary, it was mentioned that the detailed investigation disclosed as under:

"A detailed investigation has disclosed that:

1) Accused Dr HN Krishna is punishable for offences U/s. 418, 465, 468, 471, 506 r/w 109, 120(b) IPC.

2) Accused Ms Asha Parveen is punishable for offences U/s. 465, 468, 471, 420, 120(b) IPC.

3) Accused Ms Salma Firdose is punishable for offences U/s. 465, 468, 471, 420 IPC

4) Accused Sri K Narasimha is punishable for offences U/s. 465, 471, 468 R/w 120(b) IPC

5) Accused Sri P Gopi Krishna is punishable for offences U/s. 465, 468, 471 R/w 120(b) IPC

6) Accused Sri M B Banakar is punishable for offences U/s. 465, 468, 471 R/w 120(b) IPC

In this regard, chargesheet is submitted to the jurisdictional Hon'ble IACMM Court which is pending trial vide CC No. 8400/2012 and posted to 28/06/2012 for hearing.

Investigation was also conducted in the light of the allegations levelled in writ petition Nos. 11550/2008 and No. 9098/2009 filed by the petitioners namely Sri Khaleel Ahamed and others and Sri B V Umesh respectively covering the whole process of selection as directed by the Hon'ble Court.

Certain irregularities which attract departmental action were noticed during the course of investigation apart from the criminal acts punishable under IPC. A report is prepared covering irregularities which came to light during the course of investigation in selection of 1998, 1999 and 2004 batches. This report in three volumes (report and two volumes of annexure) is herewith being submitted to take appropriate action as deem fit."

34. As no follow up action was taken in terms of CID report, the petitioners herein made a representation on 24.05.2012 as per Annexure-L. In the said representation to the Chief Secretary set out the important facts which were unearthed by CID from which, it is clear that there has been a large scale illegalities, irregularities, malpractice, arbitrariness and violation of directions of the Hon'ble High Court of Karnataka, which has resulted in vitiation of whole selection process. Thousands of candidates throughout the State have suffered due to this illegalities and irregularities. The meritorious candidates have lost to the unscrupulous elements within and outside the system. The people of the State are suffering due to fact that they are being governed and administered by such unscrupulous elements who have been selected through illegal, subversive, irregular and arbitrary methods. Therefore, they requested the Government to take corrective action by scrapping/quashing the selection list of Group A and B posts (Gazetted Probationers) for 1998, 1999 and 2004 batches in toto and to order for re-doing selection as per law in consonance with established principle of selection and also strictly in compliance with the orders/directions of the Hon'ble High Court of Karnataka in WP No. 12548-12589/2002, strictly following the reservation and ratio policy and applying rules appropriately in the selection including personality test and to take immediate steps to stop all proceedings pertaining to promotions of those candidates selected in the batches of 1998, 1999 and 2004 and not to promote any person appointed on the basis of said vitiated selection.

35. The said representation was forwarded to the Chief Minister on 12.6.2012 by the Prl. Secretary, Department of Personnel and Administrative Reforms. The Under Secretary to DPAR issued an endorsement on 9.7.2012 informing the petitioners that in the order dated 20.4.2012, High Court of Karnataka which dealt with allegations of irregularities in the selection process of 1998, 1999 and 2004 Gazetted Probationers Posts, had not quashed the selection made to the Gazetted Probationers Posts, 1998, 1999 and 2004 and that it had not ordered for any review of the aforesaid selection lists, hence there was no scope for favourably considering the request of the petitioners. Thus, according to the petitioners, in spite of the Government order, in spite of the CID report, request made by the Inspector General of Police to the Secretary and the order of the Court, no action was taken by the Government. Therefore they were constrained to file these present writ petitions for the relief as set out above.

FACTS IN BRIEF:

36. The petitioners were aspiring candidates to the posts of Group-A and Group-B (Gazetted Probationers). The applications for the selection of the said Group-A and Group-B posts were called in three batches by gazette notifications in the year 1998, 1999 and 2004 respectively (hereinafter for the sake of convenience, they are collectively referred to as 'the three batches' and separately as 'the batch of that year') Petitioners and few others approached this Hon'ble High Court in W.P. No. 11550/2008 seeking a CBI enquiry in respect of the three selection batches. W.P. No. 11550/2008 was treated as PIL, as it was in the nature of class action, vide orders of this Hon'ble Court dated 16.02.2009. The petitioners filed the said writ petition on the basis of large number of documents obtained under the Right to Information Act, newspaper reports, Rules, Regulations and report of Sri. K.K. Mishra, the then Addl. Chief Secretary and Principal Secretary to Government, Commerce and Industries Department, who had initially done an enquiry regarding the irregularities and illegalities during the selection process of 1998. In the said report of Sri. K.K. Mishra, it was opined that a thorough and in depth investigation was required and what had come to the surface was only the proverbial tip of the ice berg. The Hon'ble Court by order dated 16.12.2010 ordered for an investigation by the CID under the monitorship of a Judge of the High Court of Karnataka, with regard to the three selection batches. The CID filed its report on 23.5.2011 before the Court. An affidavit detailing the modalities of the enquiry was filed. In the affidavit, it was undertaken that the investigation would be conducted by the DIG. A Former Judge of this Court was appointed to monitor the investigation process till the submission of the report by CID. The Government submitted the final report and the other reports to this Court on 20.4.2012. Accordingly, the writ petition came to be closed with liberty to the petitioners to approach the Court by way of fresh proceeding, if they are still dissatisfied. The said order was passed on 20.4.2012. In the writ petition, the petitioners have set out in paragraph 13 the findings/observations contained in CID report:--

"a. The KPSC has violated the orders of the Hon'ble High Court of Karnataka in W.P. No. 12548-12589/2002, with regard to the moderation and scaling of answer scripts, which has resulted in the vitiation of the entire selection. In the words of the report" "This wrong step of KPSC has resulted in tilting of marks and ultimately results. It is serious violation of Hon'ble High Court order and a serious lapse".

b. The standard applied by the KPSC in the selection varied from candidate to candidate i.e., the selection process was done arbitrarily.

c. Grave mistakes are noticed in the Kannada and English versions of the question papers which has resulted confusion in the candidates.

d. It is also observed that candidates from one particular category have been given more weightage. As per the report: "The perusal of the three lists of the candidates after the Personality Test gives an impression that certain category candidates are given more weightage".

e. The CID has also categorically observed that liberal marks are given to some candidates who had scored low marks in Written Examination and low marks are given to the candidates who has scored high marks in the Written Examination.

f. The then Chairman Dr. H.N. Krishna, in connivance with candidates and other officials of the KPSC has committed illegalities in the selection process, ranging from illegally favouring certain candidates, threatening meritorious candidates, wrongly disqualifying eligible candidates, accepting false-fabricated-bogus certificates to favour candidates of his choice, cheating, criminal intimidation, using forged documents and genuine, criminal conspiracy etc.,

g. There have been instances of category violations.

h. Some of the selected candidates have submitted forged fabricated documents and have got selected.

i. That, KPSC has destroyed vital documents, including answer scripts, rolls etc.,"

37. The CID, Karnataka registered a case and filed charge-sheet in C.C. No. 8400/2012 before the learned 1st Addl. Chief Metropolitan Magistrate, Bangalore against certain persons who were responsible for the illegalities and irregularities which came to light during the said investigation. The CID addressed a letter to the Chief Secretary, Government of Karnataka enclosing the copy of the final report and had summarized the chronology of the initiation of the investigation, the action taken, including the initiation of criminal proceedings, filing of charge-sheet etc., When no action was taken in terms of CID report and letter written by DIG of CID, the petitioners made a representation to the Government to take action. Relevant portion of the said representation reads as following:

"a. Take corrective action by scrapping/quashing the selection list of Group 'A' & 'B' posts (Gazetted Probationers) - 1998, 1999 & 2004, batches in too; and

b. To order for redoing the selection as per law, in consonance with established principles of selection and also strictly in compliance with the orders/directions of the Hon'ble High Court of Karnataka in W.P. Nos. 12548 - 12589/2002, strictly following the reservation and ration policy and applying the Rules appropriately in the selection, including in the Personality Test; and

c. To take immediate steps to stop all proceeding pertaining to promotions of those candidates selected in the batches of 1998, 1999 & 2004 and not to promote any person appointed on the basis of the said vitiated selection; and

d. To grant justice to the petitioners by upholding the natural justice."

38. Sri. K.K. Mishra in his report has opined that a thorough investigation was required to unearth the large scale irregularities, the Government of Karnataka has not done so. Only when some of the petitioners herein, along with others approached this Court seeking a CBI enquiry, then the Hon'ble Court ordered for an enquiry, initially with the monitoring of a Hon'ble Judge of this Hon'ble Court and later under a former Judge of this Hon'ble Court, the investigation was carried out. Initially the investigation did not commence even after three months of ordering of the same. Only when this Court ordered that the report should be positively submitted before 24.05.2011, the report was filed. When it was noticed that the investigation was not carried on thoroughly and was not according to letter and spirit of the order dated 16.12.2010, this Court ordered for a thorough enquiry and gave six months' time to submit the final report. With much reluctance, the final report came to be submitted on 20.4.2012. When no action was taken, the petitioners gave representation at Annexure-L. The respondents very casually issued an endorsement, which reads thus:

39. Till today, the respondents have not taken any action on the administrative side with regard to the irregularities which resulted in the vitiated selection of ineligible candidates. The candidates, who got selected in the said vitiated selected process, are in the services of the State, they are occupying high and influential posts in the Government. Vested interests are preventing the respondents from taking any action. The respondents are duty bound to take appropriate actions, uphold law, fair play and justice and are under oath of the Constitution not to act arbitrarily, capriciously and unjustly. It appears that the respondents will not take action unless so ordered by this Court.

40. During the early proceedings which lead to the initiation of enquiry, and during and after enquiry, general public of the State watched with great expectations. The print and electronic media gave extensive reporting of the happenings. This is testimony to the fact that the general public is keenly interested in the out come of the exposure brought out by the enquiry. In these circumstances, the petitioners have preferred this writ petition contending that the Government has not taken any action on the basis of CID report in respect of irregularities, illegalities pointed in the said report. Secondly, in all the three selections, KPSC did not follow the ratio in which the candidates had to be called for the written examination and personality test and the process of selection ran counter to rules as well as the Government orders passed in this regard. Thirdly, it was contended that when the order of this Court and the Supreme Court prescribed 10% as moderation for answer scripts, though KPSC undertook moderation in respect of question papers more than 10% for the purpose of preparing the list of eligible candidates, they confined this exercise only to 10%. Even though patent illegalities were apparent from the said marks in respect of answer scripts which were evaluated more than 10%, they were not taken into consideration and it was brushed aside.

41. After service of notice of this writ petition, the learned Advocate General appearing for the State on 24.4.2013 submitted that in the peculiar facts and circumstances of the case, regardless of the pleas and prayer of the petitioners, the State Government was required to take a stand in respect of the officers, who were inducted into service after the process of selection which was, now subject matter of prosecution in the criminal Court. Therefore, he requested for some time to deliberate on the issue and place before the Court, the actions proposed to be taken by the State Government without or after appropriate orders of this Court.

42. On 12.8.2013, the learned Addl. Advocate General Sri. Kantharaj, submitted that even as the statement of objections on behalf of respondent Nos. 1 and 2 is already filed, without prejudice to the contentions contained therein, the Government had initiated the exercise of collecting information about the recruitment and appointment of certain candidates who prima-facie, appeared to have been beneficiary of the malpractices and criminal offences alleged to have been committed during the recruitment process. He submitted that necessary data for the purpose of correlating names of such appointees with their registration numbers and code numbers during the process of selection was being called for from the KPSC and unfortunately it was felt that co-operation was not being extended by that institution. He therefore pointed out and submitted that KPSC was required to be joined as party respondent and directed to cooperate with the limited enquiry being conducted by the State Government for the purpose of identification of the appointees, who were selected and recruited during the process of selection in question. Accordingly, the KPSC was ordered to be impleaded as party-respondent No. 3 and notice was directed to be issued, to K.P.S.C. in order to afford an opportunity of hearing and for issuance of appropriate direction. It was made clear that it will be open to KPSC to supply all the necessary information as proposed to be and demanded by the State in the interest of expeditious hearing of these matters.

43. On 26.8.2013, the Karnataka Public Service Commission appeared through learned Senior counsel Sri. P.S. Rajagopal, who stated on instruction, that the data and information required as per the previous order dated 12.8.2013, as also such information as could be called for by the State, would be supplied to them, within a period of one week from the date of request of the Government. However, the data stated to be necessary, as recorded in the previous order, shall be supplied even without any further request within a period of one week from said date.

44. On 05.09.2013, a memo filed on behalf of respondent No. 3-KPSC along with a sealed cover of the data supplied by them to the State Government was taken on record. KPSC also submitted in triplicate the tabulated statements of details of the candidates who were called for personality test during the selection process.

45. The order dated 20.09.2013 passed in this case discloses that it was submitted and broadly agreed at the bar that in view of the allegations made and the grievances voiced on behalf of the petitioners, there appears to be three broad areas and stages wherein irregularities are alleged to have been crept in during the recruitment and selection process conducted by respondent No. 3 in the year 1998, 1999 and 2004. Those three areas or stages consist of evaluation of marks and moderation of marks obtained by the candidates at the time of main Written Examinations and subsequently at the stage of awarding marks during personal interview of the candidates, who were called for interview on the basis of the marks obtained, moderated and modified after the main Written Examinations. The third stage arose after the matter was carried to this Court and pursuant to the orders dated 11.10.2002 and 4.7.2003 in W.P. No. 12548/2002 and other allied matters. Serious allegations were made in respect of implementation of those orders and some of the allegations are even admitted by respondent No. 3 by the latest statement filed on their behalf as on that date. It was put to the learned Senior counsel appearing for respondent No. 3, learned Addl. Advocate General and learned counsel appearing for the other parties, whether a proper enquiry could be conducted with representatives of all the parties concerned and whether respondent No. 3 KPSC will make available all the data and information available with respondent No. 3 for the scrutiny by the representatives as aforesaid. Learned Senior counsel appearing for respondent No. 3 KPSC fairly submitted on instructions and in presence of the Secretary of KPSC, Sri. K.R. Sundar, that KPSC shall make all the data and information in its possession available to the committee of representatives, as may be appointed by the Court and adequate facilities would be provided to the members of the committee to access all the necessary information in the premises of KPSC itself. Learned Addl. Advocate General submitted that irrespective of any other enquiry or proceeding in respect of same subject matter, the State would like to participate in such enquiry through their representatives and facilitate the full facts of the matter being brought to light for further adjudication by this Court. On the basis of such general consensus for furnishing and analysis of the data and information, in relation to selection and recruitment process as aforesaid, it was decided that learned counsel Sri. Vikram Phadke and Mr. Basavaraj Patil assisted by one of the petitioners would represent the petitioners and learned counsel Sri. Reuben Jacob for KPSC, learned Additional Advocate General, Sri. R. Devdas for the State Government and learned counsel Sri. K.M. Prakash, assisted by one of the selected candidates will form the committee to independently access the information available with KPSC. This Committee would meet on agreed dates for collection and analysis of the data and as far as, may be, within a period of one month, submit a joint or separate reports after analyzing the data and the summary of the conclusions drawn by them. KPSC would intimate individually to all the members of the committee the timing for attending the office of KPSC, during which period each member of the committee shall be provided a common room for calling for and accessing the necessary data and relevant information, as may be required by them. It was also agreed at the bar that the aforesaid representatives will be free to take assistance from the persons of their choice for the purpose of collection or analysis of the data or for the clerical duties as may be required. It would be open for the members of the committee to receive all the necessary data from respondent No. 3 KPSC personally on paper or in the form of Compact Disc and it will not be necessary for all the members of the committee to meet at one place at the same time. However full facility, access and accommodation shall be provided by KPSC in its own office for the purpose of conducting the proceedings by the members of the Committee. The Court hoped that the members of the committee would work in a congenial atmosphere and it shall be the duty of all the participants to maintain complete confidentially about the information being gathered, sifted or analysed and the conclusions being drawn. It would be in the interest of all the parties concerned that individual information or allegations of any of the parties or members of the committee shall not be aired in public or made subject matter of public debate directly or indirectly. Interim application No. 1/13 was allowed with a direction that the applicant therein may be joined as respondents in the aforesaid petitions at the appropriate number. The persons so included are some of the successful candidates.

46. On 31.01.2014 the report of the Fact Finding Committee was produced before the Court, it was taken on record with the affidavit of respective parties.

On 21.3.2014 the Court observed as under:

"1. Learned counsel appearing for respondent No. 3 -Karnataka Public Service Commission (KPSC) has filed a memo. In the said memo, the following information is furnished:

"A. List of three selected candidates whose names do not figure in the new Personality Test (PT) eligibility list.

B. List of 94 candidates who were earlier called for PT but who do not figure in the new PT list.

C. List of 94 candidates who have to be interviewed as per the new PT list, which candidates were not interviewed earlier.

D. Names of the persons who were responsible or who carried out the task of fresh moderation as per the order dated 10.10.2002 passed in W.P. No. 12548/2002 & connected matters."

2. We have heard learned counsel for the respective parties, on the memo.

3. "A" is with regard to list of three selected candidates whose names do not figure in the new Personality Test (PT) eligibility list. As far as this list is concerned, learned Additional Advocate General submits that State Government would examine the matter and inform this Court on 26.03.2014 as to what steps would be taken with regard to the aforesaid three candidates.

4. "B" pertains to list of 94 candidates who were earlier called for PT, but who do not figure in the new PT list. As far as this list is concerned, presently no action is going to be taken in case those 94 candidates who were called for PT have not been appointed.

5. "C" is with regard to list of 94 persons who have to be interviewed as per the new PT list, which candidates were not interviewed earlier. Learned counsel for KPSC states that time may be granted in order to ascertain the present addresses of those candidates so as to notify them about the date of interview. Once the interviews are held, the effect of performance of those candidates on the final selection list would have to be considered and if the final selection list requires an alteration, then those persons who are presently working and would be affected would also have to be heard in the matter. Therefore, he seeks six weeks' time for the said exercise.

6. As far as the names of persons mentioned in "D" is concerned, as the KPSC is admitting that these persons were responsible for not carrying out fresh moderation as per the order dated 10.10.2012 passed by this Court in Writ Petition No. 12548/2002 and connected matters, we think that individual notices must be issued to those persons to show cause as to why Contempt of Court proceedings under the provisions of Contempt of Courts Act, 1971, should not be initiated as against them. Registry is therefore directed to issue show cause notices to those five persons under the provisions of the aforesaid Act as per the addresses mentioned at page 364 of the records ("D" above), summoning them to appear before this Court on 11.04.2014.

List these matters on 26.03.2014 for learned Additional Advocate General to make his statement on "A" above and for further consideration of the matter."

47. Thereafter on 26.3.2014 the Court observed as under:

"1. Learned Additional Advocate General has filed a memo with notices issued to three State Government officers pursuant to the previous order, wherein the statement of learned Additional Advocate General was recorded. It was painful to see that an officer of the rank of Under Secretary to Government would issue notice pursuant to this proceeding with an incorrect and misleading statement that "As per the directions of the Hon'ble High Court of Karnataka, action has to be taken as per law." In order to substantiate the plea of sincere action on the part of the State Government, a letter dated 22.03.2014 addressed by the Principal Secretary to Government, DPAR, to the Secretary, KPSC is also annexed, in which some part is not legible. It has taken about 30 minutes of arguments and submissions and production of relevant judgment to find out what the illegible missing part in the document had to be, resulting in waste of public time of the Court because of sheer negligence of a public servant in preparing documents for submission before the Court. Therefore, the memo is ordered to be returned to the office of learned Government Advocate, with direction to collect by way of cost, Rs. 500/- from the officer concerned who has put the documents together for perusal of the Court. The amount is to be paid to the Karnataka State Legal Services Authority within one week, after recovering it from the officer concerned, in the office of learned Additional Government Advocate or learned Additional Advocate General. We hope that such acts would not be repeated in future.

2. As noted in the previous order dated 21.03.2014, the Karnataka Public Service Commissioner (KPSC) has requested time of six weeks for arranging interviews of 94 persons who were not interviewed earlier. It was submitted by learned senior advocate for KPSC that they have initiated the exercise of ascertaining addresses of those 94 persons and the exercise of calling them and holding their interviews may be completed and the result thereof may be produced before this Court within six weeks from today. Therefore, he has sought time upto opening of the Court after summer vacation.

3. Permitting KPSC to proceed with the processing of aforesaid 94 cases, hearing is adjourned for the present to 11.04.2014 when KPSC will also be heard in respect of I.A. No. 2/2014 moved by the petitioners. KPSC should complete the aforesaid process of interview within six weeks as stated by its learned senior counsel."

48. On 11.4.2014 all the five persons to whom notices had been issued in pursuance of the order dated 21.3.2014 appeared in person. They were also represented by their respective counsel. They sought time to obtain necessary copies of the record and file their statement. In the meanwhile it was also noticed that one of the officers by name Sri B.A. Harish Gowda had already filed his statement.

49. On 11.8.2014 these petitions were ordered to be listed before another Bench of this Court for consideration. That is how these petitions which were listed all these days before the Bench presided by the Chief Justice was listed before this Bench.

50. On 20.08.2014 this Court passed the following order:

"ORDERS ON I.A. NOS. 1 TO 5 OF 2013

It is a public interest litigation. Impleading applicants are persons whose appointment is questioned in this proceeding. Any order in favour of the petitioners may affect them. Therefore, they are all necessary parties to this proceeding.

They have filed applications to come on record to implead themselves and petitioners have no objection. I.A. Nos. 1 to 5 of 2013 are allowed.

The petitioners to amend the cause title showing impleading applicants as respondents. Petitioners to furnish copies of the writ petition along with all the annexures to all the impleading applicants. Liberty is reserved to them to file objections within two weeks if they choose to do so.

Learned Counsel for the petitioners to file amended cause title and a copy of the amended cause title also be furnished to the respondents Counsel.

The Government is directed to serve notice of the writ petition to all the persons who are selected, through department, except those who are impleaded as parties. They can also issue a public notice calling upon all those persons who are selected and whose appointment is challenged before this Court informing about the pendency of the writ petition and mentioning that they can voluntarily implead in the case as has been done in the case today."

51. On 16.9.2014 the learned Additional Advocate General submitted that in terms of the order dated 20.08.2014 notices had been issued by way of paper publication. He also submits that notices had been served on all the officials. He filed a memo to that effect enclosing copies of the notices as well as the paper publication. In pursuance of the notices several persons filed applications to implead themselves and some others engaged a counsel. The Court observed at that juncture, that it was relevant to remember that all the persons who are sought to be impleaded were Group A and B officials. Pendency of this writ petition and proceedings of the writ petition was widely published in the news papers. These officials were aware of the proceedings, yet they did not choose to appear probably for the reason that they were not impleaded. Now due notice is taken to them personally and through paper publication, apart from the fact that news being widely published for more than two years by the press in all the daily news papers, all of them are deemed to have notice of these proceedings.

52. In order to avoid confusion, this Court also directed the petitioners to implead all the persons whose selections are challenged in this writ petition and web host a copy of the writ petition with their names, so that they could access the same at their residence or at their place of work. If any one of them wanted a hard copy, it was open for them to approach the learned counsel for the petitioners, make a Xerox copy and return the original to the petitioners so that others could have the same benefit. Subsequently the petitioners also filed a amended petition. Therefore, the Court proceeded to observe that further proceedings could be taken on the assumption that all of them had notice of the same. Any of the officials who were impleaded in the writ petition had any objections, they were at liberty to file the same within 15 days from the date of the said order. The applications filed by some of the persons to come on record as petitioners were kept in abeyance. Only the concerned officials, who wanted to come on record as respondents were allowed. In fact the web site address where the writ petition could be accessed was also mentioned as "www.hccasekpscselection.com."

53. On 9.10.2014 an order came to be made directing that all the petitioners should keep a complete set of writ papers along with all annexures in the High Court Library to enable the respondents who ever is not in possession of the entire papers to look into the papers and if necessary to obtain the Xerox copies of the same and file a suitable reply. It was also made clear that all those persons whose selection was challenged in these proceedings were at liberty to file objections even if their names are not shown as respondents in any of these petitions or in the cause list.

54. On 11.11.2014 this Court after narrating all the aforesaid facts in brief opened the sealed cover submitted by the KPSC to the Court and thereafter passed the following order:--

"12. In the course of arguments, learned counsel for the petitioner pointed out from the report submitted by the Advocates how the K.P.S.C has violated the terms of the order passed by this Court. Correspondingly, when we looked into the re-moderation made by the K.P.S.C we find they admit the mistake and they have done remoderation. In the said report, they have also pointed out how this re-moderation effects persons, how persons who are selected to Group 'A' post on account of this re-moderation will fall in Group 'B' category and persons who are in Group 'B' category will move to Group 'A' category and some of them will go out of the list and how within the same service ranking will vary. Now all the persons are before the Court. The said re-moderation by the KPSC is bound to affect few of the persons who are before this Court. As stated, by this Court in the earlier order they have to be heard. Therefore, we are of the view we should give an opportunity to all those persons who are going to be affected by the report submitted by the K.P.S.C. now. It is also possible that in the very report there may be some mistakes, which may affect their interest and they should be given an opportunity to point out those mistakes if any. Therefore, what is kept in the sealed cover in secrecy should be made known to all the persons who are before the Court as it relates to public employment and whether the K.P.S.C and Government has made recruitment in accordance with rules.

13. Having regard to the number of persons who are before this Court as we did in case of writ petitions and as all the persons who are before this Court are either Group 'A' or Group 'B' employees and have completed about 9 years of service and well versed in computer knowledge, it would be appropriate that the report cum final list prepared by the K.P.S.C is web hosted by them as well as the Government. Therefore, the K.P.S.C shall make available a copy of the report to the government. They shall web host the said report in their web site and if any persons approaches them a hard copy also be made available to them. On such web hosting, all such persons who are aggrieved by the contents of the same are at liberty to file objections, appear before this Court personally or through their counsel and bring it to the notice of the Court their say in the matter so that the Court would be in a better position to appreciate the arguments of all persons concerned. As this matter is being heard on day to day basis, this web hosting should be done within 24 hours and any objection to the said report should be filed before this Court by next date of hearing after serving a copy on the opposite side within three days.

14. Call this matter for further hearing on 18.11.2014. Registry is directed to furnish a copy of this order to the Government Advocate as well as the K.P.S.C and web host this order forthwith."

55. On 18.11.2014 all the respondents who were impleaded were duly served and they had engaged counsel to represent them. They also filed their objections by the order dated 11.11.2014 where we had directed the KPSC to web host the list prepared by them after re-moderation and fresh interview which was handed over to the Court in a sealed cover to enable all the affected persons to have their say in the matter. Accordingly objections were filed to the same. On their behalf it was brought to the notice of this Court that these newly impleaded respondents were not aware of the earlier proceedings and the orders passed by this Court till they were impleaded as parties. They submitted that for them to make effective representation, it was necessary to have a glimpse of those proceedings. They also wanted to know under what circumstances the KPSC took up the re-moderation and the procedure they had followed to enable them to make their case effectively. This Court found substance in the said two submissions and therefore this Court directed the High Court registry to web host the orders passed from the inception till now as recorded in the order sheet, to enable all persons who were impleaded as parties to have the first hand information about the proceedings which had taken place before the Court and also various orders passed from time to time, till now. Further KPSC was directed to file the affidavit setting out under what circumstances they took up re-moderation and also the procedure they had followed in the re-moderation by the next hearing date. Further they were directed to web-host the said affidavit after it was being duly sworn to, before 22.11.2014 to enable the respondents to have the requisite information so that they could have their say i.e., 24.11.2014.

56. Some of the respondents, aggrieved by the order dated 11.11.2014, preferred a Special Leave to Appeal (C) No. 31461/2014 before the Apex Court. The Supreme Court by an interim order dated 21.11.2014 stayed all further proceedings in this writ petition. This Court directed the posting of the matter only after the Special Leave Petition before the Apex Court was disposed of. The Apex Court took up the said Special Leave Petition on 5.2.2016 for hearing and passed the following order:

"We have heard the learned counsel for the parties at considerable length. We do not see any merit in this Special Leave Petition, it is hereby dismissed. The interim order dated 21.11.2014 shall stand vacated. We make it clear that we have not expressed any opinion on the merits of the contentions that may be open to the parties to be urged before the High Court including whether the report which is web hosted can or cannot be accepted in the peculiar facts and circumstances of the case, the petitioners and all other affected parties shall have six weeks time to file objections, if any before the High Court."

Thereafter all the respondents have filed their objections.

STAND OF THE KPSC:

57. In these proceedings KPSC filed its statement of objections to the findings of the CID report on 18.9.2013. It also filed the statement of objections to the writ petition on 7.10.2014. They also filed a counter affidavit in respect of the conclusions contained in the report of the Fact Finding Committee. On 19.02.2014, lastly, they filed an affidavit in compliance of the order dated 18.11.2014 explaining the process involved in re-moderation of marks. Broadly following are the grounds of defence taken by the KPSC in these proceedings.

58. The petitions have been filed as Public Interest Litigations (PILs). Admittedly all the petitioners in the above petition are unsuccessful candidates who have participated in the selection process of Gazetted Probationers of 1998, 1999 or 2004 selection. It is well settled law that PILs in service matters are not maintainable and all the above cases are liable to be dismissed in limine. Most of the petitioners in the above petition have already approached the Karnataka Administrative Tribunal by filing separate applications seeking relief in respect of selection which is the subject matter of these writ petitions. They have furnished the details of the applications filed by the petitioners in the above petition. The fact that most of the petitioners have already approached the KAT for similar relief or relief specific to their non selection, has been suppressed. The fact that most of the petitioners have been prosecuting the parallel proceedings amounts to abuse of the process of this Court. The petitioners who have suffered adverse orders before the KAT have allowed those orders to become final. All those petitioners, who have not challenged their non-selection earlier cannot at this point of time question their non-selection by belated petitions. On these grounds these writ petitions are liable to be dismissed in limine.

59. The KPSC, notwithstanding the contumacious conduct of the petitioners and non maintainability of the PILs, as a responsive constitutional body, has welcomed the idea of forming a Committee in the present proceedings and has taken corrective action based on the admitted findings in the CID report having concern in transparency and larger values. Having regard to the prayer made in the earlier writ petition, the submission of the Government is that the entrustment of the investigation of the CID culminated in the CID submitting its report. In that context they submit that the Commission has fully extended its co-operation and has co-operated in the investigation conducted by the CID. However, except for one adverse finding against the Commission (which has admitted to other adverse findings in the CID report were erroneous and incorrect) they objected to the said report. The CID police has undisputedly lodged criminal proceedings against the concerned persons including former office bearers and officials of the Commission and the said criminal proceedings are pending as on date. On the CID police filing the investigation report the said writ petitions were closed. Thereafter some of the petitioners approached the Government by way of representations in response to which the Government issued endorsement dated 9.7.2012. Challenging the said endorsement, writ petition is filed. In the representation of the petitioners to the Government, they sought for scrapping/quashing the selection list of GP 1998, 1999, 2004 selection and for re-doing all the selection process. The Government could not have considered such request of the petitioners of cancellation of the entire selection. In this writ petition as controversies surrounds the findings contained in the CID report, Commission has filed a statement dated 20.9.2013 indicating its stand on the findings of the CID report. In the said statement the Commission has specifically stated the stand of the Commission in respect of each selection and finding contained in the CID report. In order to avoid repetition the said statement dated 20.9.2013 is made as part and parcel of those statement of objections.

60. By an order dated 20.09.2013 this Court was pleased to appoint a Fact Finding Committee, which contained in all five advocates, two advocates represented petitioners, one advocate represented KPSC, learned Additional Government Advocate for the State Government and the one Advocate for the selected candidates. The members representing the selected candidates shall have to file a separate report and the other members were to file another report. A report filed by four members of the Committee and one member representing the Commission was filed before this Court. A counter affidavit has been filed on behalf of the KPSC in respect of the conclusion arrived/contained in the report of the Fact Finding Committee. The said counter affidavit dated 19.2.2014 which was filed in the open Court on 19.2.2014 could be read as part and parcel to the objections in order to avoid repetition.

61. In pursuance of the orders passed by this Court on 18.11.2014, the Secretary to the KPSC filed an affidavit setting out under what circumstances, the Commission took up re-moderation and also set out the procedure that the Commission has followed in the re-moderation.

62. It is stated that during the pendency of the above writ petitions, on 2.8.2013 a meeting was called for by the Principal Secretary to DPAR in order to discuss the action required to be taken by the State Government in pursuance of the CID report filed in W.P. Nos. 11550/2008 and W.P. No. 9098/2009. He required the Secretary of the Commission to participate in the said meeting. At that point of time, KPSC was not arrayed as a party respondent in the above writ petitions and KPSC was not aware of the proceedings in the above writ petitions. Thereafter by a communication dated 27.08.2013 the Principal Secretary, (DPAR) wrote to the Commission requesting the KPSC to take action/corrective action as per the orders of the Hon'ble High Court of Karnataka and furnish a detailed report to the Government. They also requested the Commission to take action on the allegations/findings of the CID in respect of the Gazetted Probationers Examinations of 1998, 1999 and 2004, as per the decisions in the meeting held under the Chairmanship of the Chief Secretary to the Government. Further the Commission was required to take action with specific reference to the most serious allegation No. 3 and findings of the CID thereon with reference to the 1998 Gazetted Probationers Examination, redo the moderation and scaling in accordance with the directions dated 11.10.2002 and further to redo the selection lists 1998, 1999 and 2004, as indicated above, if necessary, particularly identifying the illegal beneficiaries, who have been appointed. Once commission was also asked to identify fresh candidates, who were to be included in their places and to send final select lists by following the required procedures to indicate the action taken against the officials of the KPSC, viz., Sri K. Narasimha, Sri. Gopikrishna and Sri. M.B. Banakar, who were indicted in the CID report. In the meanwhile the KPSC was added as a party respondent in the above petitions and appeared before the Court through a counsel on 26.08.2013. After entering appearance they submitted the data and information required as per the previous order dated 12.08.2013 and also undertook to furnish such information as may be called for by the State Government within a period of one week from the date of request of the Government. They also pleaded their inability to the Government to re-do the selection and submitted a report stating that it was not within the powers of the Commission as once the final selection list was published and forwarded to the Government, it would become 'functus officio'. On verification of the records of the then Secretary, it was found that the annulled Chief Examiner (CE) and Head Examiner (HE) marks had been taken into consideration for the purpose of moderation and scaling, which was contrary to the directions issued by this Court in W.P. No. 12548-89/2002 and connected matters. The Commission wrote to the Government that the cross checking exercise had been undertaken and considering the enormity of the task, they sought for four weeks time to complete the process and to provide information including the marks awarded by the examiner, head examiner and chief examiner and any other relevant information the Government may desire.

63. They also stated that, the Commission wrote to the Government on 17.9.2013 stating that after undertaking the exercise of crosschecking in respect of the moderation and scaling of 1998 batch, it was found that a total of nine answer scripts covering different subjects were required to be submitted to third valuation. Giving the details of the said scripts, the Commission requested for two weeks time to complete the process of third valuation and to convey the outcome. They admitted the finding of the CID report to the effect that the order passed by the High Court in Writ Petition Nos. 12548-89/2002 was violated. Further they state, in pursuance of the said finding, the Commission is re-doing the exercise of moderation and scaling in order to find out, if in fact there would be tilting of the total marks secured by a candidate and consequently the select list, if the marks awarded by Chief/Head Examiners were not taken into consideration during moderation and scaling. It was found that a total of nine scripts in four subjects were required to be subjected to third evaluation. The same was to be followed by preparation of merit list and if any fresh candidate comes within the 1:5 eligibility range (as per merit/reservation) then personality test would be arranged for the said candidates. Based on the outcome, merit list needed to be re-drawn as also the final select list. Then they have referred the appointment of Fact Finding Committee. In the meantime, the Commission completed the third valuation of the additional answer scripts required to be subjected to third valuation and they have also informed the Court that, 94 candidates who were not interviewed earlier found a place in the said list and 94 candidates who were interviewed earlier did not find a place in the list. They furnished the requisite information in a sealed cover. Thereafter, they referred to the order passed by this Court dated 11.11.2014 making available the list which was kept in the sealed cover. They proceeded to set out how the moderation and scaling was undertaken. They said that, the moderation and scaling was done only in respect of the subjects where the marks awarded by the Head Examiners and Chief Examiners were annulled.

64. The first step involved was crosschecking of the marks entered in the computer database paper-wise and examiner-wise in order to tabulate the marks awarded by original examiner and discard marks awarded by the Head Examiner and the Chief Examiner. In the process of first moderation examiner-wise and paper wise, 10% answer scripts (5% top and 5% random) were already picked-out for second valuation and valued. The said second valuation marks of 10% answer scripts were compared with the original examiner marks to determine the difference between the two marks. They made it clear that if the marks awarded by the Head Examiner and the Chief Examiner had been taken into consideration earlier in respect of the 10% picked-out answer scripts, there should be change in the difference of marks from the first moderation to the re-moderation, as the difference in marks in re-moderation is between the original examiner and the second valuation marks. However, in case of picked-out scripts, which were not corrected either by the Head Examiner or the Chief Examiner or both, then the difference of marks would remain the same as in the case of first valuation. Thereafter, the average variation is arrived at by adding the difference in marks in respect of 10% picked-out answer scripts divided by the number of answer scripts picked-out. If the average variation is more than plus(+) or minus(-) 20, then the original examiner marks of all the scripts evaluated by the said examiner is added or subtracted by such average variation and the final scaled marks would be after such addition or subtraction. In the event of average variation being less than plus(+) or minus(-) 20, then no addition or subtraction is necessary and the original examiner marks have been retained. However, in individual cases of picked-out answer scripts, if the difference between the marks awarded by the original examiner and the second valuation is more than plus(+) or minus(-) 20, such answer scripts are subjected to third valuation and the marks awarded in the third valuation is taken as the final marks. In the first moderation after arriving at the average variation, addition or subtraction was carried out by using Head Examiner or Chief Examiner marks, where they have valuated the scripts. However, in the case of scripts evaluated only by original examiner, even in the first valuation, the addition or subtraction was only from the original examiner marks.

65. Illustration contained in CID report at pages 25 to 38 does not give the correct scope of correction, inasmuch as, the CID has pointed out the fact that, at the stage of addition or subtraction of the average variation, the Head Examiner's and the Chief Examiner's marks have been used instead of original examiner's marks. However, if in case of the first valuation of the Head Examiner or Chief Examiner marks were used for calculating the average variation (in respect of picked-out answer scripts), then in the re-moderation even the average variation would undergo a change. CID did not appreciate this aspect and hence, the calculation given in the CID report in pages 25 to 36 cannot be used in order to determine the correct difference of marks on re-moderation.

STAND OF THE STATE:

66. In the Statement of Objections, they have referred to the recruitment of 403 Group-A and Group-B posts from the initial stage till the matter was concluded in the Apex Court which we have clearly set out under the heading background of the case in respect of 1998 batch. Thereafter, they have stated that in the background of the alleged large scale irregularities in the valuation of answer scripts of 1998 Gazetted Probationers Examination, the Government in its order dated 4.2.2013 entrusted the matter to Sri K.K. Mishra, then Additional Chief Secretary and Principal Secretary to the Government, to investigate and to submit his report. Accordingly, Sri K.K. Mishra investigated the matter and submitted his report to Government on 4.4.2003 recommending to entrust the matter to Karnataka Lokayukta for further investigation. The Karnataka Lokayukta in its letter dated 26.9.2003 reported that, there is no need to enquire into the matter once again since the matter has already been investigated by the Additional Chief Secretary. After examining the issue in detail, the Commission in its order dated 18.1.2003 cancelled the candidature of 10 candidates who participated in the above selection process and permanently debarred them in any competitive examinations to be conducted by the Commission. A complaint was also filed in the Vidhana Soudha police station. The Government in its order dated 16.4.2004 entrusted the matter to CID for investigation. The CID submitted its report on 20.9.2006 and sought permission of the Government to prosecute Sri Monnappa, the then Secretary of Karnataka Public Service Commission. The Government in its order dated 5.1.2008 accorded permission under Section 197 of the Criminal Procedure Code to prosecute Sri Monnappa. The CID filed criminal case in No. 5540/2008 before the 4th Additional Chief Metropolitan Magistrate Court, Bangalore. The charge sheet was also filed in the above case on 14.3.2008 and the matter is pending before the Court. Enquiry has also been contemplated against one Sri K. Rameshwarappa, the Deputy Director of Food and Civil Supplies, a candidate in the above said competitive examination, who figured in the investigation report. In this way, action has been initiated against those responsible for the irregularities said to have been committed in the valuation of the answer scripts of 1998 Gazetted Probationers Examination.

67. Then they have referred to filing of Writ Petition No. 11550/2008. The Hon'ble High Court by its order dated 23.8.2011 directed the CID to investigate the matter within six months. The Hon'ble High Court has also ordered to appoint Justice Mohammed Anwar, a retired Judge of this Court to monitor the investigation and filing of the report before the Court and the order was passed by disposing of the writ petition. Thereafter, the petitioners submitted a representation to the Government on 21.9.2012 and 24.5.2012 requesting the Government to cancel the recruitments of 1998, 1999 and 2004 batch and to redo the select list of the candidates. The Government after considering the representation of the petitioners, rejected the same by issuing endorsement dated 9.7.2012, which is impugned in the writ petition. The endorsement issued by the Government on 9.7.2012 is just and proper and needs no interference by this Court. The petition filed by the petitioner is devoid of any merits and liable to be dismissed.

68. The petitioners ought to have approached the Hon'ble Karnataka Administrative Tribunal, if they are aggrieved by the said endorsement, instead they have approached this Court. Therefore, the writ petition is misconceived and not maintainable in law and liable to be dismissed. They also submitted that, the Karnataka Public Service Commission ought to have been made a party to the proceedings as they are challenging the select list of the candidates of 1998, 1999 and 2004 prepared by the KPSC and therefore they contend that the petition is bad for nonjoinder of necessary parties and the petition is liable to dismissed. Thereafter, they have submitted that, the CID after having conducted the investigation filed C.C. No. 8400/2012 before the Additional Chief Metropolitan Magistrate Court, Bangalore against Dr. H.N. Krishna, the then Chairman of Karnataka Public Service Commission, Mrs. Asha Parveen, Tahsildar, Smt. Salma Firdose, Assistant Registrar of Co-operative Societies, Smt. K. Narasimha, Sri P. Gopikrishna and Sri M.B. Banakar, staff of the Karnataka Public Service Commission by framing charges under various provisions of the IPC. The matter is pending before the Criminal Court. In addition to the above, the Government in its letters dated 8.6.2012 and 10.9.2012, the Revenue Department had been requested to take action against Smt. Asha Parveen, who is working as Tahsildar. Again in the letters dated 8.6.2012 and 10.9.2012, the Cooperative Department has been requested to take action against Smt. Salma Firdose, since she is working as Assistant Registrar of Co-operative Societies under the control of Cooperation department. In this way, the Government is sincerely taking action against those who are indicted in the CID report. That being the state of affairs, the allegation of the petitioners that, the Government is not contemplating any action against those who are figured in the CID report is unfounded and the same is liable to be rejected. Therefore, they have sought for dismissal of the writ petition.

Statement of Objections filed by the successful candidates:

69. Statement of Objections filed on behalf of the respondents - successful candidates - Respondents No. 16 to 18, 20 to 22, 25 to 27, 72, 80, 84, 117 to 120, 124 to 125, 128 to 133, 136, 137, 139, 140 to 149, 150, 151, 154 to 156, 238, 243, 249, 303, 310, 356, 357, 359, 361, 365, 366, 368, 369, 371, 377, 380, 383, 386, 388, 415, 427 to 429, 439, 441, 460, 479, 487, 492, 495, 503, 509, 518, 551, 580, 582, 611, 612, 615, 616, 620, 625, 628, 630, 632, 645, 652, 654, 661, 666, 677, 679, 680, 682, 691, 696, 699, 703, 705, 706, 707, 710, 713, 714, 715, 719, 720, 721, 722, 724, 725, 726, 727, 728 and 475.

70. After referring to the chequered history of this case as set out by us above, these respondents have traversed the allegations in the writ petition in their statement of objections from paragraph 23 onwards. They contend the petitioners were aspiring candidates to the post of Group-A and Group-B (Gazetted Probationers) for the years 1998, 1999 and 2004. The grievance of the petitioners are in the nature of personal interest and no public interest is involved in the above writ petition. Hence, writ petition filed by the petitioners is required to be dismissed in limini with cost. Then they have referred to the judgments of the Supreme Court on the question of how public interest litigations have to be dealt with. Then in paragraph 26 they have set out the marks of the selected candidates before moderation, after moderation and the difference between the two moderations. Then they contend that, Supreme Court has held that, "for the mistake of the appointing authority, the selected candidate should not made to suffer". The merited and untainted candidates can be segregated. Cancellation of entire selection process on the ground that the process smacks of mala fides and mal practices was not justified". The CID has not stated anything anywhere that the respondents are responsible for the alleged noncompliance of the order if any passed by the Division Bench of this Court in Writ Petition Nos. 12548-12589/2002. If at all anything wrong done by the Karnataka Public Service Commission, the petitioners have to redress their grievance in the petition filed by them before the Karnataka Administrative Tribunal. When the responsibility of compliance of the order of the High Court is entrusted to the Secretary of the Karnataka Public Service Commission, if they are in mistakes and illegalities, he is responsible and CID has not chosen to take any action against the Secretary and Secretary has not been made an accused for his alleged mistakes, if any. It shows the CID has not conducted the investigation in a fair manner.

71. The petitioners have misinterpreted the observation made by the CID. By reading the last para at page No. 53 of CID report, prima-facie it appears that the CID has not conducted the investigation fairly. Then they have referred to some cases of mistakes in the selection. Then they have set out the powers and duties of the Secretary of the Karnataka Public Service Commission. Then they have referred to the acceptance of false, forged, documents and bogus certificate. There have been instances of category violation. It is submitted that, a candidates though applied under the category, by virtue of merit, they have selected under G.M. It is pertinent to mention that, neither the Chairman nor any member wrote any remarks 'consider or not to consider', it is the duty of the Secretary of the Commission to look into it and to decide whether to accept or reject the recommendation made by the Commission. The Secretary is the final authority to decide an issue.

72. Then they have referred to various actions taken in pursuance of the CID and they submit that the petitioners have filed the present writ petitions by suppressing the fact of pendency of the litigations before the KAT. Hence, these writ petitions are to be dismissed for suppression of facts and also for the reason that the petitioners have not approached this Court with clean hands. Until and unless the allegations are proved, based on the alleged allegations made in a criminal case action cannot be taken in service matters. Though, the Government has taken the action by suspending the candidates, those candidates have approached the KAT and got the stay and the said matters are pending for consideration and therefore, they sought for dismissal of these writ petitions.

Statement of Objections filed by other respondents:

73. Statement of objections of respondent Nos. 32, 33, 34, 36, 37, 39, 42, 44, 45, 47, 48, 50, 52, 54, 56, 59, 60, 62, 63, 67, 73, 76, 110, 111, 116, 142, 157, 237, 247, 264, 265, 267, 268, 269, 270, 271, 273, 274, 283, 284, 285, 286, 297, 308, 315, 322 and 324.

74. After referring to the earlier proceedings which are set out above and the various judgments of the Apex Court, these respondents have contended that as could be seen from the report submitted by the investigating authority they have pointed out some of the procedural irregularities such as moderation of answer books, receiving degree certificate in addition to marks cards and considering the reserved candidates under general categories according to their merits etc., Admittedly the selected candidates performed very well in the written examination and interview when compared to the petitioners and they are qualified for the said posts. Accordingly, they have been selected and appointed to various posts and also working for past 08 years. Hence, there is no substance in such contention after such a long lapse of time. Several candidates claimed reservation under various categories at the time of preliminary examinations and at the time of main examinations for having performed very well in the written examination. They have secured higher marks and got interview under general category having pushed to general category, it is not necessary to verify the validity of the claim for reservation. After referring to the judgment of the Apex Court it is contended that reserved candidate is entitled to compete for the general category or reserved category. Hence, there is no substance in the contention of the petitioners regarding selection of reserved candidates for the posts meant for general category. The Officers of CID pointed out three alleged irregularities and in relation to 1998 recruitment batch, answered as under:

"1. Violation of ratio policy: as observed in the KAT court itself classification is done in accordance with Government Order dated 20.06.1995.

2. Category manipulation: the candidates applied under reserved category have scored higher marks than general category in the interview and selected under general merit as observed in the report itself.

3. Improper acceptance of applications inspite of grave discrepancy and violation of recruitment rules."

75. Out of 08 candidates listed under this category, 7 candidates have not enclosed degree certificates but enclosed final year marks card or cumulative grade card. In respect of candidates who have completed all the years of degree in first attempt along with merits in the final year, marks performance of all the years is available. As per the rules, the candidates have to produce proof of passing the degree containing the marks of all the years is sufficient proof of passing it. Apart from that the allegation is not based on marks in the academic qualification but on the basis of marks secured in the competitive examinations. They have secured more marks than the petitioners and selected for number of posts. Hence, there is no substance in the said contention.

76. All these respondents were appointed as Gazetted Probationers in the year 2006 and their period of probation was declared after they passed required departmental examinations. Most of them have been promoted to next higher cadre and are discharging their duties sincerely and honestly. After 07 years from the date of their appointment, they are impleaded as respondents to contest these matters. Hence, on the ground of delay and laches, itself, the above writ petitions have to be dismissed.

77. In the case of any irregularity committed intentionally by any individual it has to be enquired into and it is open to take action as per Rule 20 of the General Recruitment Rules 1977 but entire selection cannot be called in question as held by the Apex Court in a number of judgments. The allegation, the alleged irregularities are attributed to previous chairman of the KPSC Sri. H.N. Krishna. Even the allegation of favouritism and other allegations are made without impleading him as a party in the above proceedings and therefore, the petition is to be dismissed for non-joinder of necessary parties. Therefore, they have sought for dismissal of the said writ petitions.

78. Respondents No. 2 and 7 have filed additional statement of objections virtually reiterating what they have said in the earlier objection statement.

79. These respondents have filed their objection relating to 1999 batch. They have traversed the allegation in the writ petitions paragraph wise. They have denied the allegation and they have also reiterated the objection what others stated in the statement of objection and they wanted writ petitions to be dismissed.

80. Some of the other respondents have also filed separate statement of objections but the contention taken therein is already set out above and they have only reiterated the same in the statement of objections.

ARGUMENTS

81. Sri M.B. Nargund, the learned senior counsel appearing for the petitioners contended that, in the selection of the years 1998, 1999 and 2004, there is a gross violation of ratio of candidates to be admitted to written examination and called for Personality test, offending Articles 14 and 16(1) of the Constitution of India. Secondly, he contended that the directions issued by this Court in W.P. Nos. 12548-589/2002 for fresh evaluation in terms of Para 78 of its order and the direction to redo a fresh moderation in regard to 18 option subjects and also General Studies in the manner suggested by the KPSC in Para B of its memo dated 27.3.2002 is not complied with. Thirdly, the KPSC has restricted its moderation and revaluation only to the extent of 10% of the answer scripts and the answer scripts which was subjected to such revaluation above 10% is not taken into consideration which is again a contravention of the directions issued by this Court and, therefore, he submitted the entire selection is vitiated and liable to be set aside.

82. Per contra, Sri P.S. Rajagopal, the learned senior counsel appearing for KPSC, submitted that, the procedure followed in preparing the list of eligible candidates to take the written examination as well as the personality test is in terms of the Government Order dated 3.5.1994 and 20.6.1995. The said procedure is followed from 1975 onwards. Therefore, there is no illegality committed by the KPSC in following the said procedure. In so far as moderation and scaling is concerned, though the KPSC has committed the mistake of taking the annulled marks, on the same being pointed out, now they have rectified the mistake and have prepared the revised merit list which is also web hosted. In so far as not undertaking the said exercise in respect of the answer scripts which are more than 10% is concerned, as they were called upon to redo the exercise only in respect of 10% of the answer scripts, they were under no obligation to undertake the said exercise in respect of those answer scripts which were above 10% and, therefore, no fault could be fault with.

83. Sri S. Vijaya Shankar, the learned senior counsel, appearing for the candidates who are affected by the revised merit list contends that, once a list of candidates suitable for appointment is prepared in accordance with Rule 11 of the Rules, the KPSC becomes functus officio. They have no power to revise the said merit list and, therefore, the revised merit list cannot be enforced and is liable to be set-aside.

84. Sri. Subramanya Jois, learned Senior counsel appearing for successful candidates of the 1998 batch submitted that by relying on the judgment of the Apex Court in the case of Dr. M.S. Mudhol and another v. S.D. Halegkar and others reported in MANU/SC/0542/1993 : (1993)3 SCC 591 that at this distance of time, the selections made more than 12 years back cannot be unsettled. He also submitted that the very petitioners, who are prosecuting these writ petitions are applicants before the KAT, where they are seeking very same relief. He also contended that in the entire writ petitions, no allegations are made against the successful candidates that they have manipulated or practised fraud in order to get selected. Therefore, it is submitted that at this distance of time, the question of considering the public interest litigation to annul the said appointment would not arise.

85. Sri K.M. Prakash, the learned counsel appearing for the successful candidates submitted that, the KPSC has conducted the selection as per the Rules framed by the Government. All persons who have merit are to be considered as GM candidates and, therefore, considering the candidates belonging to the reserved category as GM candidates is in accordance with law and no fault could be found with in it.

He also contended that the material on record clearly demonstrates that this public interest litigation is filed targeting a particular individual and a particular community and, therefore, it ceases to be a public interest litigation. He further submitted the dispute in question being purely a service matter, as held by the Apex Court in several judgments no public interest litigation is maintainable. In support of his contention he relied on several judgments of the Apex Court.

He contended that all these petitioners were the candidates, their application before the tribunal challenging the selection process is pending, that the questions involved in this Writ Petition and the questions in that application are one and the same, that they cannot be allowed to prosecute parallel proceedings, that their conduct is not bonafide, that they have not come to the Court with clean hands, that a person who has surpassed material particulars, filed a review petition and a curative petition, is not entitled to any relief at the hands of this Court. Moreover, no allegations are made against the successful candidates, they are not party to any of the irregularities alleged. For no fault of their's they cannot be made to suffer. Therefore, he submits seen from angle, the selection list cannot be quashed by this Court.

Lastly he submitted, in the event this Court were to uphold the revised merit list as held by the Apex Court in several judgments, without disturbing candidates who are working for the last 10 years or more, supernumerary posts could be created for those persons whose name did not figure in the earlier list.

In so far as the selection of Smt. Nirmala as Deputy Superintendent of Excise is concerned, what is shown in the register on the interview date as absent is wrong. She has sworn to an affidavit where she has given her version and she has also produced documents to substantiate her stand and, therefore, he contends she was not absent, she attended the interview and the marks allotted to her in such interview is in accordance with law.

In so far as discrepancies pointed out in Table 20 in the report submitted by the petitioners' counsel is concerned, he submits there is no tampering, and manipulation. Thereafter, he referred to the 164 statement recorded by the Magistrate and other members of the committee, all of them are Constitutional authorities, barring the fact that the Chairman is first among the equals, the question of Chairman threatening the members and acting against their wishes would not arise, statements given before the Magistrate are yet to be proved. In fact, the complaint filed against the other members of the Commission are quashed by this Court. In those circumstances, the correction of the marks is genuine and it cannot be found fault with.

86. Sri Aditya Sondhi, the learned Additional Advocate General and Sri Devdas, the learned Additional Government Advocate, reiterated what they have said in the statement of objections.

87. Sri. S.V. Narasimhan, learned counsel submitted that the petitioners in the writ petitions, in categorical terms have stated that they are the aspirants for the posts, which are filled up by the KPSC and therefore, the writ petition is for vindicating their personal rights and not a public interest litigation. He further submitted that it is settled law that no public interest litigation lies in respect of service matters. In support of his contention, he relies on the judgments of the Apex Court in case of Ashok Kumar Pandey v. State of West Bengal reported in MANU/SC/0936/2003 : (2004)3 SCC 349, in case of Hari Bansh Lal v. Sahodar Prasad Mahto and others reported in MANU/SC/0654/2010 : (2010)9 SCC 655 and in case of State of Punjab v. Salil Sabhlok and others reported in MANU/SC/0166/2013 : (2013)5 SCC 1.

He further submitted that though the examinations are conducted in the years 1998 and 1999, the appointment orders were issued only in the year 2006 whereas the writ petition is filed in the year 2012 i.e., 6 years after the appointment. Therefore, he relies on the judgment in case of Printers (Mysore) Ltd., v. M.A. Rasheed and others reported in MANU/SC/0307/2004 : (2004)4 SCC 460. He contended that the writ petition filed six years after the appointment orders is liable to be dismissed on the ground of delay and latches on the part of the petitioners in approaching this Court. The said delay and latches equally applies to public interest litigation.

The learned counsel also relied on the judgment of the Apex Court in the case of Anirudhsinhji Karansinhji Jadeja and another Vs/State of Gujarat reported in MANU/SC/0473/1995 : AIR 1995 SC 2390(1) at Paragraph 11 and the case of Dipak Babaria and another Vs/State of Gujarat and others reported in MANU/SC/0052/2014 : (2014)3 SCC 502 paragraphs 69 and 72, where it has been held that the direction by the State Government to another instrumentality of the State is contrary to law and cannot be approved and any orders passed on such dictation is invalid. He also relied on the objections to the Fact Finding Committee's Report, which is taken on record.

The learned counsel relying on paragraph 52 in Sanjay Singh's case submitted that if the Court comes to the conclusion that if there were irregularities in the selection, still any rules or guidelines to be issued by this Court should be made prospective so that the successful candidates, who have been working for more than 10 years is not disturbed. He further submits that the Rajasthan High Court as well as the High court of Uttar Pradesh have followed the High Court of Uttaranchal in this regard.

88. Sri. Vedachala, learned counsel appearing for Roopashree and Sri. Subramanya, learned counsel appearing for Uma. K., pointed out that the respective respondents are both benefited and suffered in the process of the so-called third valuation, which is not taken into account.

89. Sri Krishna Dixit, the learned counsel appearing for respondent No. 430 by name Devaraja contended that, in the committee report it is suggested that the member Smt. Ilian Xavier altered the marks 70 to 150 on the instructions of the Chairman Dr. Krishna. In the 164 statement recorded before the Magistrate there is no whisper. On the contrary all the other members have awarded 150 marks. He is a highly qualified candidate and when the other members have awarded 150 marks, when by alteration this member has also made it 150, no fault could be found with the selection.

90. Sri Spoorthi Hegde, the learned counsel appearing for candidates who belong to 3A but are selected in the GM category states their selection is based on purely merit. There is no allegation against them in the CID report and they are not involved in any manipulation and, therefore, their selection cannot be found fault with.

91. Sri Narayana Bhat, the learned counsel appearing for respondent No. 4-Idayathulla submits that, his client was a candidate in 1999 selection. He was not selected. Therefore, he filed an application before the Karnataka Administrative Tribunal complaining of non-selection. Application was allowed directing the Government to create a supernumerary post. That order was challenged before this Court. By an interim order a direction was given to create a supernumerary post and accordingly he was appointed. Subsequently, the Writ Petition came to be dismissed. His appointment is final. He stands outside the purview of this litigation. Under no circumstances his appointment could be touched.

92. In so far as Ram Prasad, respondent No. 301 is concerned, his name is taken out of the list on the basis of the marks after moderation. He submits he has now secured the records from the KPSC and the moderation is correct and if the correct marks are taken, he would not be out of the list. The same reasoning applies to respondent No. 306-Siddalingaswamy who happens to be a 3B category and also for respondent No. 322-Mehaboobi, respondent No. 354 - Arun Kumar Sangali and respondent No. 294 -Gopal. Synopsis and judgments are also placed on record. Further he submits that all his candidates are meritorious, deserving, honest people. If at all these mistakes, manipulations have happened in case of those candidates who have taken Kannada and History as the optional subjects.

93. Vishwanath Hiremath-respondent No. 737 had applied for a post in 2004 selection. He was not selected. He challenged the same before the Karnataka Administrative Tribunal on the ground that no reservation is earmarked for Physically Handicapped persons. Accepting his case the Government was directed to create a supernumerary post. He was appointed. The said order was challenged by the Government and KPSC. They were unsuccessful. His appointment has become final. He also falls outside the proceedings of this Court.

94. Sri Srikanth, the learned counsel appearing for some of the successful candidates, relying on the judgment of the Supreme Court in the case of JOGINDER PAL AND OTHERS v. STATE OF PUNJAB AND OTHERS [MANU/SC/0520/2014 : (2014) 6 SCC 644 urged that the candidates who are meritorious are to be segregated from the tainted candidates and action should be taken only against tainted candidates. He also relied on the judgment in the case of ASHOK KUMAR PANDEY v. STATE OF WEST BENGAL [MANU/SC/0936/2003 : (2004) 3 SCC 349] to contend that service litigation is not public interest litigation but a private interest litigation and it should be thrown out at the initial stage itself. Relying on the judgment in the case of M.V. THIMMAIAH AND OTHERS v. UNION PUBLIC SERVICE COMMISSION AND OTHERS [MANU/SC/8231/2007 : (2008) 2 SCC 119] he submitted that the malafides alleged are not established. Therefore, no action can be taken on that basis. He also submitted that he would file synopsis with judgments.

1999 Batch:

95. Sri D.R. Ravi Shankar, the learned counsel appearing for some of the petitioners contended that when the selection process was under challenge before the Karnataka Administrative Tribunal, the KPSC has destroyed the entire answer scripts, which clearly shows the malafide intention on their part. He contended that without preparation of model answer scripts, the valuation is done which has resulted in total arbitrariness in the process of valuation. The system of introducing second and third valuation is arbitrary. For aforesaid reasons he submits that the selection of 1999 Batch is liable to be quashed.

96. Per contra, Sri. P.S. Rajagopal, learned Senior Counsel appearing for the KPSC submitted that model answer scripts were prepared. It is only on that basis evaluation of answer scripts have taken place. After expiry of the period stipulated, the answer scripts have been destroyed. No motive could be attributed on that score. All other allegations made by the petitioners pointing out the irregularities in the 1999 batch of selection, is without any substance and not supported by any material on record. Therefore, he submits that there is no merit in any of those allegations.

97. Sri. Santhosh Nagarale, learned counsel appearing for few successful candidates in the year 1999 selection, submitted that in the judgments on which reliance was placed by the petitioners, adverse inference were drawn for destruction of answer scripts. But in the instant case answer scripts were destroyed in accordance with law. Therefore, the judgment has no application to the facts of this case.

He also relied on the judgment of the Apex Court in the case of Girjesh Shrivastava and others v. State of Madhya Pradesh and others reported in MANU/SC/0888/2010 : (2010)10 SCC 707 to buttress his argument that no public interest litigation is maintainable in service matters and relied on several judgments, which find a place in the said judgment.

He pointed out that in the CID report, nothing is said about the 1999 selection and therefore, 1999 selection, under no circumstances should be interfered with.

98. In the light of the aforesaid material on record and in the light of the arguments canvassed, the points that arise for our consideration in these petitions are as under:--

"(1) Whether the process of preparation of the eligibility list of candidates who are to be admitted for written examination and the list of candidates who are called for the personality test, is in accordance with Rule 4 read with Schedule II and in particular Note 'c' of Clause 'A' and clause (c) of the Rules?

(2) Whether the revised list prepared by the KPSC is in terms of the order passed by this Court in W.P. Nos. 12548-589/2002 and to be given effect?

(3) Whether the KPSC was justified in not taking into consideration 91 answer scripts which were subjected to third valuation on the ground that they were in excess of 10% directed by the order of the High Court?

(4) Whether the selection of the 1999 batch of Gazetted Probationers is liable to be set aside for destruction of answer scripts?

(5) Whether the Writ Petition is not maintainable as it is not a Public Interest Litigation as contended by the respondents?

(6) Whether grievances pointed out with regard to individual candidates made out by both the petitioners and respondents can be gone into in these proceedings?

(7) What are the directions to be issued to the KPSC in the background of this case to prevent future repetition of the same mistakes?

(8) What order?"

POINT No. 1 - RATIO VIOLATION

99. Sri M.B. Naragund, learned Senior Counsel, appearing for the petitioners contended that in the selection process during the years 1998, 1999 and 2004 there was a gross violation of ratio prescribed for general merit candidates as well as the reserved candidates. Undisputedly, a multi stage examinations are conducted. There are three stages firstly, preliminary examination to determine eligibility to take written examination, written examination and thereafter a personality test. Therefore, a distinction is to be made in a multi stage selection between selection and eligibility criteria for participating in the selection process. The Government order on which reliance is placed is only for selection. When a person moves in to the arena of written examination, his eligibility criteria cannot be construed as selection for the written examination. Again, when he is to be called for personality test, the eligibility criteria is to be satisfied and that does not constitute selection.

Admittedly, for all the three years, the candidates from reserved list, find a place in the unreserved list, at the stage of written examination and personality test, which is illegal. This wrong inclusion has taken away the right of general merit candidates to be considered for selection under the general merit candidate. It violates Article 14, 16, 16(4) of the Constitution as held by the Apex Court Article 14, 16, 164 and 164A have to be harmonized and one cannot eat into seats which are earmarked for these candidates and therefore he submits that the entire selection is vitiated and it has to be re-done keeping in mind the aforesaid principles.

Pointing out the injustice done, he submits that in the 1998 selection out of 383 posts for which applications were called for, 187 posts reserved for general merit. Therefore, according to the Rules, after the preparation of merit list of the written examination, the candidates falling in the category of GM should have been called for viva voce in the ratio of 1:5 i.e., 935 candidates should have been called for. However, only 521 candidates were called for. Thus, 414 persons who had the requisite merit in the written examination were deprived of the benefit of attending the personality test because of wrong migration of reserved candidates into general merit candidate.

He pointed out that insofar as persons belonging to III A category is concerned, 11 posts were reserved in the ratio of 1:5, 55 persons ought to have been called whereas 169 persons were called for the interview, thus the benefit of attending interview is conferred on 114 persons who did not have the requisite merit to attend the personality test Similar is the case in respect of other candidates also. In that process, for the 187 posts meant for General Merit category, even persons belonging to other category have been appointed on the basis of the marks secured in the personality test though they did not have requisite merit at the earlier stage and therefore it was illegal and the selection is vitiated.

100. Sri P.S. Rajagopal, the learned senior counsel appearing for KPSC, submitted that, in a multi stage examination process each stage is independent and merit has to be considered at each stage. From the year 1975 onwards not only the KPSC but all the Governmental agencies have followed the procedure prescribed under Schedule II in terms of the Government Order dated 9.7.1975 and Annexure-II deals with mode of selection. There is no prohibition for adopting such procedure. He further submitted that though in the general category for 187 posts, they have to call 935 candidates, 521 candidates belonging to GM category have been called and 414 candidates belonging to the meritorious reserved candidates category, who by virtue of their merit are eligible to be considered as GM candidates, were called for the interview and therefore, the contention that 414 persons belonging to GM were denied the benefit of viva voce, is not correct. Similarly, so far as other categories are concerned, in calculating the number of candidates actually called, so far as 413 candidates belonging to meritorious reserved category candidates are calculated against each category and therefore, the difference pointed out is without any substance.

Therefore, he submits relying on several judgments of the Apex Court as well as this Court, the question of this Court finding fault with the said procedure which is well established would not arise at this stage. He submits it is always open to the Court if it feels a reformation is required, that could be only for the future selections by issuing appropriate direction to the Executive.

101. Sri. R. Devdas, Principal Government Advocate, on behalf of Learned Additional Advocate General submitted that Rule 8 of the Rules, 1997 provides for reservation for SC/ST and other Backward Classes. It provides, there shall be reservation of vacancies for candidates belonging to SC/ST and other Backward Classes to the extent provided for by the government by any general or special order, from time to time. It is in pursuance of these Rules, these orders are passed from time to time and followed by the Government as well as the KPSC. This is in conformity with Art. 16(4) of the Constitution and also in conformity with Section 4(1) of the Karnataka SC/ST & Other Backward Classes (Reservation on appointments, etc) Act, 1990.

102. The learned Additional Advocate General Sri. Aditya Sondhi, appearing for the Government submitted that Sri. R. Devadas, was the member of the Committee constituted by the Committee of this Court and he has submitted his report and in addition to what is contained in the report his submissions are also placed on record where they did not dispute the facts set out in Tables. But they do not agree with the inference drawn by the learned counsel for the petitioner. He brought to our notice the judgments of the Apex Court and contends that in all these cases, a reserved category candidate whose name finds place in the General Merit, if in an arrangement, was not able to secure an higher post: and persons in the reserved category with less merit is able to secure higher post, then law permits moving of the reserved category candidate from the general merit list to the reserved category, in which event, seats which fell in the general merit have to be filled by the general merit candidate and not by the reserved candidate, who went out of the list because of migration. At any rate, the rule in Indra Sawhney case that reservation should not exceed 50% is to be maintained.

103. Sri K M Prakash, learned counsel appearing for the meritorious candidates submit that the petitioners have not pointed out what is the violation of any law committed by the KPSC in the matter of selection. KPSC conducts selection as per the Rules framed by the Government from the inception or from time to time. Secondly, he contended, the nomenclature GM excludes castes. All persons who have merit are to be considered as GM candidates. There is no law which provides that once a person is treated as a reserved category, he should be treated as reserved category throughout the selection process and therefore, there is no substance in the contention of the petitioners.

104. Learned Senior counsel for petitioners Sri M.B. Nargund in reply pointed out that the mode of selection as per Annexure II on which reliance has been placed by learned Sr. counsel for KPSC is to be followed at the time of preparing the final list of selected candidates. It has no application at the time of preparing the list of candidates who are eligible to take the written examination and candidates who are eligible to go to the personality test. They are governed by clause (c) of the Scheme of Examination as contained in Schedule II.

105. In the light of the aforesaid submission the question for consideration is whether the procedure followed by the KPSC is in accordance with the Rules and the Government Order dated 03.05.1994 and 20.06.1995.

RELEVANT RULES:

106. In pursuance of the powers conferred on the State under Section 8 of the Karnataka State Civil Services Act, 1978, the Government of Karnataka has framed the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997 (for short hereinafter referred to as 'the Rules"). Section 4 of the Rules provide for holding of competitive examination. It reads as under:--

"4. Holding of Competitive Examinations: (1) (a) A combined Competitive examination for recruitment to one or more of the services or groups of posts mentioned in Schedule-I shall be held every year, subject to availability of vacancies, in the manner set out in Schedule-II.

(b) Government may, by order, amend Schedule-II for making any addition, alteration or deletion of any subject or syllabus of a subject.

(2) The Commission shall invite applications in the prescribed form for the competitive examination from the intending eligible candidates.

(3) The candidates who apply for the competitive examinations shall clearly indicate in their application forms the services or posts for which they wish to be considered for appointment in the order of preference. They shall not be considered for such of the service or posts which are not preferred by them."

107. Rule 8 provides for reservation of Scheduled Castes, Scheduled Tribes and other Backward Classes. It reads as under:--

"8. Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes: There shall be reservation of vacancies for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes to the extent provided for by the Government by any general or Special order from time to time."

108. Rule 9 provides for conduct of competitive examination. It reads as under:--

"9. Conduct of Competitive Examinations: The Commission shall, subject to the provisions of these rules, make necessary arrangements relating to the conduct of Competitive Examination to be held by it in pursuance of rule 4 of these rules. The Commission shall openly advertise the vacancies in the Karnataka Gazette and in one or more of News Papers in regional language having wide circulation in the State specifying the condition of eligibility, the nature of competition, the provisional number of vacancies to be filled up and the reservations available in favour of Scheduled Castes, Scheduled Tubes and Other Backward Classes and others."

109. Rule 11 provides for list of candidates suitable for appointment. It reads as under:--

"11. List of candidates suitable for appointment: (1) Subject to the provisions of sub-rule (3) of rule 4 and rule 8, and the number of posts advertise for each of the services in Group-'A' and Group- 'B' the Commission shall prepare separate list of names of the candidates equal to the available number of vacancies considered suitable for appointment for each of the said services in Group-'A' and Group 'B' arranged in the order of merit determined on the basis of total marks secured in the main examination comprising written examination and personality test:

Provided that the name of a candidate shall not be included in more than one such list.

2) The list prepared under sub-rule (1) shall be published by the Commission in the Official Gazette and the copies thereof shall be forwarded to:--

(i) the Government together with the marks secured by each of the candidates in the written examination and personality test; and

(ii) each candidate whose name is included in such list.

3) Candidates whose names are included in the list prepared in accordance with the provisions of sub-rule (1) shall be considered for appointment to the vacancies notified in each of the services and groups of posts in the order in which their names appear in the list:

Provided that, no candidate shall be appointed unless the Government is satisfied after such enquiry and verification as may be considered necessary that the candidate is suitable for such appointment."

110. As could be seen from Rule 4, the competitive examinations have to be conducted in the manner set out in Schedule II. Schedule II speaks about scheme of examination. Clause (1) and (2) reads as under:--

"SCHEDULE - II

SECTION - I SCHEME OF EXAMINATION

The competitive examination shall comprise of two stages:--

(1) Preliminary Examination (Objective type) for the selection of candidates for the main examination and

(2) Main Examination (written examination and Personality Test) for selection for candidates for various services and posts."

111. Clause (A) deals with preliminary examination. It reads as under:--

"(A) Preliminary Examination : The Preliminary Examination shall consist of two papers of objective type (multiple choice).

(i) each paper carrying 100 Questions with each question carrying two marks.

(ii) each paper shall be of a maximum of 200 marks and a duration of two hours (Total for two papers 400 Marks) in the following description, namely:--

Note:--

a. The question paper shall be set both in Kannada and English.

b. The standard of General Mental Ability questions of preliminary examination (aptitude test) shall be that of X/SSLC level and the remaining papers are that of Degree Level.

c. The number of candidates to be admitted to the main examination shall be 20 times the vacancies notified for recruitment "in the order of merit" on the basis of the performance in the preliminary examination, subject to accommodating the "same ratio" in adequate number of candidates belonging to the categories of Scheduled Castes, Scheduled Tribes, each of the other Backward Classes and others."

112. Clause (B) deals with main examination. It reads as under:

"B. Main Examination: The Main Examination shall consist of written examination and personality test.

Note: 1. The marks obtained in compulsory papers i.e., in Kannada and in English shall be of qualifying nature. For qualifying in these papers, a minimum of 30% in each paper and 35% aggregate is prescribed. The marks obtained in these two papers shall not be considered for determining the merit for selection. Candidates who do not secure the prescribed marks in the qualifying papers, namely, Kannada and English, shall not be eligible for personality test and selection.

2. The examination shall be of conventional type.

3. The question papers shall be set both in Kannada and in English. A candidate may answer a paper either entirely in Kannada or in English.

4. The standard of the main examination except Paper I Kannada and Paper II English shall be that of Degree level. The standard of Paper I Kannada and Paper II English shall be that of First Language Kannada and First Language English respectively at SSLC level."

113. Clause (C) personality test reads as under:--

"C. Personality Test: The Commission shall call for a personality test, as far as may be, Five times the number of candidates as there are vacancies in the services in Group-A and Group-B respectively, of Schedule-I in the order of merit on the basis of the results of the Main Examination, subject to calling candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes in the same ratio to the extent vacancies are reserved for them. Personality Test shall carry a maximum of 200 marks. The object of the Personality test is to assess the personal suitability of the candidate for the service or services for which he is a candidate. The qualities to be judged at the time of personality test are mental alertness, critical powers of assimilation, clear and logical exposition, and balance of judgment, variety and depth of interest, ability for social cohesion, leadership and intellectual depth of the candidate".

(Underlining by us)

114. Schedule II of the Rules provides for the scheme of examination. As is clear from Section I of Schedule II, the competitive examination shall comprise of two stages. First, preliminary examination (for the objective type). Second, main examination (written examination and personality test). These two examinations have to be conducted in stages. There are five stages in all.

115. First Stage: All the candidates who possess the academic qualification prescribed under Rule 7 are eligible to take the preliminary examination. The preliminary examination consists of two papers of objective type (multiple choice). Each paper carries 100 questions with each question carrying 2 marks and each paper shall be a maximum of 200 marks and of duration of two hours. The description of the subject area, the number of questions and marks prescribed in Paper I and Paper II are as stipulated in Schedule II. The question paper shall be set both in Kannada and English. There is no cut off marks prescribed for pass in the preliminary examination. After the preliminary examination, all the persons who had taken the examinations are included in the list on the basis of the merit. The names of the candidates are arranged in the said list purely on the basis of merit, i.e., marks secured in the preliminary examination and not on the basis of any caste consideration. At this stage the caste of the candidate is of no relevance and the question of applying the reservation policy under Article 16 (4) of the Constitution of India would not arise.

116. For example, if 10,000 candidates take the preliminary examination, after examination a list showing their performance is prepared on the basis of merit/marks secured in the preliminary examination. In other words, the names of all the candidates who wrote the preliminary examination find a place in the list showing the marks obtained by them. The names are arranged in the order of merit. As there is no cut off or minimum marks for a pass in the examination is prescribed, the list should show the names of all the persons who took the preliminary examination showing the marks secured by them. However, the names in the list shall be arranged in the order of merit.

117. Second stage: Taking the preliminary examination is a condition precedent for being eligible to take the written examination. However, all the persons who had taken the preliminary examination are not entitled to take the written examination. Clause (C) of Section I provides that the number of candidates to be admitted to the main examination shall be 20 times the vacancies notified for recruitment. In other words, as against each vacancy 20 candidates whose name finds a place in the list of candidates who had taken the preliminary examination are admitted to the written examination. Those 20 candidates against each vacancy are selected in the order of merit on the basis of the performance in the preliminary examination. Therefore, even to take the written examination, merit is the sole criteria. However, it is subject to one condition, i.e., adequate number of candidates belonging to the categories of Scheduled Caste, Scheduled Tribe and each of the other Backward Classes and others have to be accommodated in the same ratio. In other words, here a distinction is made between candidates whose merit alone is taken into consideration and candidates whose caste is taken into consideration. The number of candidates to be admitted to the main examination shall be candidates who are permitted/admitted to take the examination purely on the basis of merit and equal number of candidates belonging to the reserved categories. Therefore, necessarily two lists have to be prepared at this stage. One list showing the names of the candidates belonging to the unreserved category and another list showing equal number of candidates belonging to reserved category.

118. For example, if recruitment is conducted to fill 100 (Group A and B) posts, 20 times, the 100 would be 2000. Therefore, out of 10,000 candidates whose name finds a place in the performance list of preliminary examination, only 2000 persons are to be admitted to the main examination. Out of the 2000 students 1000 students are to be admitted from unreserved category, 1000 candidates should belong to the reserved category. In other words, equal number of reserved category and unreserved category should take the written examination. If in the list of performance of the preliminary examination, Sl. No. 1 to 2000, if there are 1500 candidates belonging to the unreserved category and 500 candidates belong to the reserved category, only 1000 out of 1500 candidates belonging to the unreserved category in the order of merit have to be admitted. It means, 500 candidates, who are less meritorious within 2000 list will not be eligible to take two written examination. As only 500 reserved candidates are found among the first 2000 candidates, remaining 500 candidates have to be selected from the list below 2000, in the order of merit, to enable 1000 candidates belonging to Scheduled Caste, Scheduled Tribe and other Backward Classes and others to take the written examination. This is what is meant by the expression "subject to accommodating "same ratio" in adequate number of candidates belong to the categories SC, ST; each of the other backward classes and others". Therefore, the ratio of 50:50 is to be maintained at the time of writing the written examination. If on the other hand, among the first 1000 candidates out of 2000 candidates, 800 candidates belong to the unreserved category and 200 belong to the reserved category, 200 candidates belonging to the unreserved category in the order of merit from the candidates below the 2000 in the list is to be selected and 800 candidates belonging to the reserved category from the candidates below the 2000 in the list are to be selected. If the procedure now followed is applied only 800 candidates from unreserved category would be eligible and 1200 candidates from reserved category would be eligible. Thus, the ratio rule of 50:50 is breached. The resultant position would be 200 meritorious candidates from the unreserved category would be denied the opportunity to write the examination. It is contrary to express provision contained in the Rules and violates Article 14 and 16(1) of the Constitution of India. Though caste/class plays a dominant role at this stage in selecting the candidates to write the written examination, the question of meritorious reserved candidate being considered in the place of a general merit candidate would not arise, at this stage. There is no migration of a meritorious reserved candidate to the unreserved category, contemplated at this stage. On the contrary, the rule specifically states the "same ratio" is to be maintained between reserved and unreserved category of candidates. Therefore, at this stage two lists are to be prepared. First list containing only 1000, unreserved category candidates and second list containing only 1000 reserved category candidates.

119. Third Stage: This is the conduct of the main examination. It shall consist of written examination and personality test. Clause (B) of Section I of Schedule II speaks about the written examination, the subjects and the marks prescribed and the number of papers each candidate has to take while writing the written examination. Note 1 makes it clear that the marks obtained in compulsory papers, i.e., in Kannada and in English shall be of qualifying nature. For qualifying in these papers, a minimum of 30% on each paper and 35% aggregate is prescribed. However, the marks obtained in these two papers shall not be considered for determining the merit for selection. Candidates who had not secured the prescribed marks in qualifying papers, namely Kannada and English, shall not be eligible for personality test and selection.

120. Illustration: If 2000 persons as aforesaid, belonging to reserved and unreserved category in the same ratio, write the examination, after such examination, a list showing the result of the main examination is to be prepared. In this list also all the 2000 persons who took the written examination name finds a place. No cut off marks or minimum marks is prescribed in the Rules for passing in the examination. However, the list not only shows the marks secured by each candidate but also should disclose the category to which the said candidate belongs. All the persons whose names find a place in the list showing the results of the main examination are not eligible to be called for the personality test. The Rules provides that the Commission shall call for a personality test, as far as may be, five times the number of candidates as there are vacancies in the services in Group 'A' and Group 'B' respectively, of Schedule I. i.e., when there are 100 vacancies to be filled up, the number of persons who should be called for the personality test is only 500. In other words, among the 2000 candidates whose names find a place in the list showing the results of the main examination, only 500 persons have to be called for the personality test. The basis for the candidates being called is again in the order of merit on the basis of the results in the main examination. The same is again subject to the condition that candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes have to be called for the personality test in the same ratio to the extent vacancies are reserved for them. Therefore, even at the time of calling the candidates for personality test, the ratio has to be maintained. In other words, the number of candidates to be called for the personality test belonging to the unreserved category and the reserved category should be in the same ratio. Therefore, again two lists, one of reserved candidates and the other of un-reserved candidates in the same ratio has to be prepared. Only those candidates are to be called for the personality test.

121. For 100 posts, if 500 candidates have to be called for the interview, among the 500, 250 should be from the unreserved category and 250 from the reserved category. The basis for inviting these 250 candidates in each category is again in the order of merit. As in the list showing the results of the main examination not only the marks secured by each candidate but also the category to which they belong is clearly mentioned, 250 candidates belonging to the unreserved category in the order of merit should be called to the personality test. Similarly, 250 candidates belonging to the reserved category in the order of merit should be called for the personality test. At this stage also the question of meritorious reserved candidate being called to the personality test as a unreserved candidate would not arise. Therefore again two lists, first list showing 250 names of the unreserved category and second list showing 250 names of the reserved category to be prepared.

122. Fourth Stage: The personality test shall carry a maximum of 200 marks. The object of the personality test is to assess the personal suitability of the candidate for the service or services for which he is a candidate. The qualities to be judged at the time of personality test are mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion, leadership and intellectual depth of the candidate. After such personality test, mark is awarded to each of the candidates who appear for the personality test. As the maximum marks prescribed for personality test is 200, the examiners have to award such marks the candidate is entitled to on their observation. This is the procedure prescribed under Rule 4 of the Rules.

123. The candidates whose names find a place in the two lists prepared after the written examination in the order of merit in the ratio of 1:5 are eligible to be called for the personality test. In the personality test each candidate is awarded marks based on their performance by the examiners. Therefore, after the completion of the personality test, again two lists showing the number of marks secured by each candidate in the personality test are to be prepared, i.e. first list showing the marks secured by each candidate among the unreserved candidate and second list showing the marks secured by each candidate among the reserved candidate.

124. Therefore, there will be two lists in each category one list showing the marks secured in the written examination and another list showing the marks secured in personality test.

125. FIFTH STAGE: Rule 11 of the Rules provides for preparation of list of candidates suitable for appointment. It provides that, subject to the provisions of sub-rule (3) of Rule 4 and Rule 8, and the number of posts advertised for each of the services in Group 'A' and Group 'B', the Commission shall prepare separate lists of names of the candidates equal to the available number of vacancies considered suitable for appointment for each of the said services in Group 'A' and Group 'B' arrange in the order of merit determined on the basis of total marks secured in the main examination comprising written examination and personality test, provided that the name of a candidate shall not be included in more than one such list. Therefore, it provides for preparation of consolidated list of names of the candidates equal to the available number of vacancies in the order of merit determined on the basis of total marks secured in the main examination comprising written examination and the personality test. In other words, the marks secured by the candidate in the written examination and the personality test is to be totaled. Thereafter, a merit list is to be prepared.

126. Rule 8 of the Rules provide that, there shall be reservation of vacancies for candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes to the extent provided for by the Government by any general or special order from time to time. The preparation of list of candidates suitable for appointment is subject to Rule 8. The Government of Karnataka by an order dated 3.5.1994 has provided how the reservation of appointments in direct recruitment to the State Civil Services under Article 16 (4) of the Constitution of India is to be made. The said Order provides for mode of selection. Para 5 of the said order prescribes that, the order of selection to be followed for the proper implementation of the reservation provided in this Order, is given in Annexure-2. This shall be followed by the Public Service Commission and all other selecting authorities. Annexure-2 to the said Government Order dealing with mode of selection reads as under:--

"GOVERNMENT ORDER No. DPAR 2 SBC 94,
BANGALORE DATED: 3rd MAY, 1994

ANNEXURE-2

MODE OF SELECTION

a) The concerned Selection Authority shall first prepare consolidated list of all eligible applicants irrespective of their caste, tribe, class and arrange them in the order of merit (hereinafter called the First List).

b) The Selecting Authority shall then prepare from out of the First List a second list (hereinafter called the Second List) containing the names of applicants equal to the number of posts to be filled up on the basis of general merit (i.e., the number of posts other than those reserved in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes) arranging them in the order of merit commencing with the first name in the First List.

c) The Selecting Authority will then prepare from out of the First List, excluding the portion forming the Second List, a Third List (herein after called the Third List) containing the names of applicants belonging to the Scheduled Castes, Scheduled Tribes and other groups of Backward Classes equal to the number of vacancies reserved for each reserved category in the order of merit determined in the First List.

d) The Selecting Authority will then prepare a final list (which may called the Main List) of selected candidates for appointment to the category of posts for which selection is made, by arranging the names of candidates included in the Second List and the Third List in the order of merit.

e) Where the 'Additional List' has to be prepared in accordance with rules of recruitment, the Selecting Authority shall prepare the additional list by adopting the method mentioned at (a) (b) (c) & (d) above, from among the names excluding the names which are included in the Main List, from the first list."

127. Therefore, it is clear that, first a consolidated list of eligible applicants irrespective of their caste, tribe, class, is to be prepared and arranged in the order of merit which is called the first list.

128. The word used is, "consolidated list". Till such stage is reached, necessarily, there should be more than one list. One list of meritorious unreserved candidates and one list of meritorious reserved candidates. It is to maintain the ratio of 50:50 stipulated under the Rules, at the time of admitting the students to take the written examination and calling for Personality Test, two separate merit lists are to be maintained. It is at the stage of preparation of the list of candidates suitable for appointment, the Rule 11 provides for reservation of vacancies. At that stage, the Government Order mandates that the Selection Authority shall first prepare consolidated list of all eligible applicants irrespective of caste, tribe, class and arrange them in the order of merit. Till such time in the preparation of list, caste, tribe, class, plays a dominant role, in order to give equal opportunity to all of them. At the time of appointment, merit is the criteria. This consolidated list is called the First list. In other words, the first list contains the names of all the persons who are called for personality test and the marks secured by them both in the written examination and the personality test. Their names are arranged in the order of merit. From out of this list a second list containing the names of the candidates equal to the number of posts to be filled up on the basis of general merit, i.e., the number of posts other than those reservation in favour of Scheduled Caste, Scheduled Tribes and Other Backward Classes arranging them in the order of merit commencing with the first name in the first list. It is here for the first time the word "GENERAL MERIT" is used and explained. General merit means the number of posts other than those reserved in favour of Scheduled Caste, Scheduled Tribe and other Backward Classes. According to the Government order dated 31.01.1995 and 20.06.1995 the number of post reserved for Scheduled caste, Scheduled tribe and other Backward Classes is 50%. The remaining 50% posts are to be filled up by the General Merit category. This reservation is in consonance with the law laid down by the Apex Court in Indira Sawhney's case. The relevant portion of the Government Order dated 20.06.1995 reads as under:

129. After the preparation of the second list then excluding the portion forming the second list, a third list has to be prepared from out of the first list containing the names of candidates belonging to the Scheduled Caste, Scheduled Tribe and Other Groups of Backward Classes equal to the number of vacancies reserved for each reserved category in the order of merit determined in the first list. After this exercise, then a final list which is called the main list of selected candidates for appointment to the category of posts for which the selection is made by arranging the names of candidates included in the second list and the third list in the order of merit. While preparing this list, the reservation policy of the State under Article 16(4) of the Constitution is to be given effect to. It is at this stage, a meritorious unreserved category could be considered as a General Merit category because of his merit.

130. This is the procedure contemplated by the Rules for holding of competitive examinations, conduct of competitive examinations and the manner in which adequate number of candidates belonging to the categories of Scheduled Castes/Scheduled Tribes, each of the Other Backward Classes and Others is to be accommodated in the same ratio as that of candidates belonging to the unreserved category. Now, the question is whether KPSC has followed this procedure in conducting these examinations and in preparing the list of suitable candidates.

PROCEDURE FOLLOWED BY THE K.P.S.C.

131. The petitioners contend there is violation of ratio rule 1:20 for main examination and 1:5 for personality test resulting in serious discrimination to the candidates. The petitioners have provided data in Table A12, B2 and C4 at pages 31, 64 and 90 of the Report of the committee constituted by the High Court. The respondents do not dispute the figures mentioned in the Table. But, they contend the conclusion of the Petitioner Members is incorrect and there is no variation of ratio policy of either 1:20 in calling for main examination or 1:5 in calling for personality test.

132. The KPSC meeting the case of the petitioners has filed the counter affidavit in respect of the conclusions contained in the report dated 31.01.2014 of the Fact Finding Committee filed on 31.1.2014. The said affidavit was filed on 19.2.2014. The relevant portion reads as under:--

"j) In re: Point No. 10: It is alleged by the Petitioner Members in Point No. 10 that there is a violation of ratio rule of 1:20 for main examination (for short 'Mains') and 1:5 for personality test (for short 'PT') resulting in serious discrimination to candidates. In support of the said conclusion, the Petitioner Members have provided data in Table A12, Table B2 and Table C4 at Pages 31, 64 and 90 of the report respectively. The conclusion of the Petitioner Members is incorrect and there is no violation of ratio policy of either 1:20 in calling for mains or 1:5 in calling for PT. Consequently there is no discrimination to candidates as concluded by the Petitioner Members. The Karnataka Recruitment of Gazetted Probationers (Appointed by competitive examinations) Rules, 1997 (for short 'GP Rules of 1997') provides that the candidates to be called for the mains shall be in the ratio of 1:20 to the number of posts notified and the candidates to be called for PT shall be in the ratio of 1:5 to the number of posts notified (presently amended to 1:3). The said rules do not provide as to the manner in which the said calculation of 1:20 and 1:5 has to be carried out vis--vis the different categories to which reservation is provided. The Commission in determining the candidates eligible in the 1:20 or 1:5 ratio, follows the procedure prescribed in Annexure-2 to the Government Order dated 03-05-1994 and Annexure-2 of the Government Order dated 20-06-1995. As per the said Government Orders, the selecting authority is to first prepare consolidated list of all the eligible applicants irrespective of their caste, tribe, class and arrange them in the order of merit, which list is referred to as the first list. Thereafter, the selecting authority is to prepare the second list from out of the first list containing the names of the applicants equal to the number of posts to be filled up on the basis of General Merit arranging them in the order of merit commencing with the first name in the first list. Thereafter selecting authority has to prepare from out of the first list, excluding portion forming the second list, a third list containing the names of the applicants belonging to the Schedule Castes, Schedule Tribes and other backward classes equal to the number of vacancies reserved for each category in the order of merit determined in the first list. The said procedure is followed in finalizing the 1:20 and 1:5 lists. However, in the second list containing the candidates considered as General Merit there could be reserved category candidates, which number of reserved category candidates is also computed by the Petitioner Members in Table A12, Table B2 and Table C4 as against the respective Category, thereby arriving at the distorted figures in order to highlight so called category violation. On facts, in respect of the three selections in question, there is no category violation as concluded by the Petitioner Members and the said conclusion is factually incorrect in the light of the explanation above.

k) In re: Point No. 11: The Petitioner Members have concluded that the categories of candidates have been arbitrarily changed and in support thereof have been furnished data in Table A18 and Table C10 it is submitted that the said assertion and conclusion of the Petitioner Members is factually incorrect. The list of candidates to be called for PT in the ratio of 1:5 is prepared in the manner as stated in Point No. 10 above, which is as per the Government Orders dated 03-05-1994 and 20-06-1995, in the said process it is only logical and permissible that candidates who have applied under a particular category are selected or called for PT under General Merit (for short 'GM'). There is no manipulation and the Petitioner Members have used the words 'category purposefully manipulated' and there is no material in support of the said conclusion apart from indicating that the said candidates in Table A18 and C20 had claimed a specific reservation in both their prelims and mains but were eligible for PT on the basis of their merit under General Merit. In the light of the explanation furnished in respect of Point No. 10, the said conclusion of the Petitioner Members is factually incorrect."

133. From the said averments in the affidavit it is clear that, according to the KPSC, the Rules of 1997 do not provide as to the manner in which the ratio of 1:20 and 1:5 has to be carried out vis--vis the different categories to which reservation is provided. The Commission is determining the candidates eligible in 1:20 or 1:5 ratio following the procedure prescribed in Annexure-2 to the Government Order dated 3.5.1994 and Annexure-2 of the Government Order dated 20.6.1995 referred to supra. According to them, as per the said Government Orders, the selecting authority has to first prepare a consolidated list of all the eligible applicants irrespective of their caste, tribe, class and arrange them in the order of merit, which list is referred to as the first list. Thereafter, the selecting authority has to prepare the second list from out of the first list containing the names of the applicants equal to the number of posts to be filled up on the basis of General Merit arranging them in the order of merit commencing with the first name in the first list. Thereafter, the selecting authority has to prepare from out of the first list, excluding portion forming the second list, a third list containing the names of the applicants belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes equal to the number of vacancies reserved for each category in the order of merit determined in the first list. The said procedure is followed in finalizing the 1:20 and 1:5 lists. According to them, in the second list containing the candidates considered as General Merit, there could be reserved category candidates, which number of reserved category candidates was also computed by the Petitioner Members in Table A12, B2 and C4 as against the respective Category, thereby arriving at the distorted figures in order to highlight so called category violation. Therefore, they contend the conclusion of the Petitioner Members is factually incorrect.

134. From the aforesaid affidavit it is clear that the KPSC has followed the procedure prescribed in the Government Order dated 3.5.1994 and 20.6.1995 in preparing the eligibility list of candidates who are eligible to take the written examination. Similarly, by applying the Government Order they have also prepared a list of candidates who are eligible to take the personality test and they have also followed the said Government Order at the time of preparing the list of suitable candidates for appointment. Is this procedure consistent with the Rules and the Government Orders?

135. As could be seen from the scheme of examination as provided in clause (A), the number of candidates to be admitted to the main examination shall be 20 times the vacancies notified for recruitment in the order of merit, on the basis of the performance in the preliminary examination subject to accommodating the same ratio in adequate number of candidates belonging to the categories of Scheduled Castes, Scheduled Tribes, each of the Other Backward Classes and Others. The word used is "same ratio". i.e., the number of candidates to be admitted to the main examination should be in the same ratio means the number of candidates belonging to Scheduled Castes, Scheduled Tribes and each of the Backward Classes and Others should be equal to that of the candidates who do not belong to the said category. The word used is 'adequate number of candidates'. In other words, the number of candidates belonging to the unreserved category who are admitted to the written examination and number of candidates belonging to the reserved category who should be admitted to the reservation, should be the same. Therefore, two lists have to be prepared, one is the list showing candidates belonging to the unreserved category and the second list showing the reserved category. While preparing these two lists there is no inter se merit to be taken note of. These lists are list of candidates eligible to take the written examination and not list of candidates suitable for employment in the order of merit, which is called the First List in the Government Order dated 03.05.1994. Similarly, after the written examination also while calling the said successful candidates to the personality test, the same procedure is to be followed. i.e., prepare 2 lists, one list of unreserved candidates and one list of reserved candidates in order of merit. These two lists are list of candidates eligible to be called for personality test. It is not a list of candidates suitable for employment. It is only after completion of the personality test, the marks secured by each candidate in the written examination and personality test is totaled and a consolidated list of eligible candidates irrespective of their caste, tribe, class is arranged. The said Government Order is to be followed only at the stage of preparation of list of candidates suitable for appointment under Rule 11 as is clear from the wordings of Rule 11. At the time of admitting candidates for written examination and at the time of calling the candidates for personality test, the number of candidates to be admitted to the written examination and called for personality test should be in the same ratio of persons belonging to reserved category and unreserved category. Clauses (A) and (C) specifically refers to the word 'same ratio'. Therefore, at that stage the question of any meritorious unreserved category candidate being called either for written examination or for the personality test as an unreserved category would not arise. By wrongly applying these Government Orders at this two stages, substantial number of unreserved candidates who are meritorious are denied the opportunity to take the written examination as well as the personality test. The understanding of KPSC that Rules of 1997 do not provide as to the manner in which the ratio of 1:20 and 1:5 has to be carried out is erroneous, in the light of the express provision setting out how the list of candidates to be admitted to the written examination and list of candidates to be called for the personality test. Therefore, the error is apparent.

136. The number of candidates who are affected and denied opportunity to take the personality test are set out as here under:--

137. The KPSC has placed on record the Reserved Category candidates selected under the General Merit in 1998, 1999 and 2004 Gazetted Probationers Examination.

138. Table A12 discloses the number of persons who are called to the personality test in the 1998 batch. The total number of posts for which recruitment took place was 383 posts. 50% of which is 187. Therefore 187 posts have to be filled up by general merit candidates and the remaining 50% of the posts have to be filled up from reserved category candidates. The ratio in which the candidates who have passed the written examination is to be called for the personal interview is 1:5. Therefore, as against the post of 187 ear marked for general merit category, 935 candidates belonging to general merit category who had taken the written examination had to be called for the personality test in the order of merit. The Table discloses that only 521 candidates belonging to the General Merit category were called for the interview. 414 candidates belonging to unreserved category were denied the opportunity to participate in the personality test. The said Table also discloses that the various reserved category and the number of posts allotted to each such category. It also discloses the number to be actually called and number actually called. To fill up 64 posts reserved for Schedule Caste, 320 persons in the reserved category should have been called for the personality test. However, 393 candidates were called for the interview. Thus, 73 more candidates than what is prescribed under the law were called for the interview. Similarly, as against 19 posts reserved for Scheduled Tribe, 95 persons ought to have been called for the personality test. Whereas, 114 persons were called, i.e., 19 persons were in excess of the prescribed ratio. Similarly, 22 posts reserved for C-1 category, 110 should have been called for the personality test, whereas, 142 persons were called for. Thus, 32 candidates exceeded the prescribed ratio. Similarly, as per the Table, for category 2A-94 persons, category 2B-29 persons, category 3A-114 persons and category 3B-61 candidates, more than the prescribed limit were called for. Table B2 contains the particulars of the number of candidates called for in the 1999 batch and Table C4 gives the number of candidates called for 2004 batch.

139. In order to demonstrate the illegality and the consequences flowing therefrom, let us take the case of candidates belonging to 3A category in all the three years, i.e., 1998, 1999 and 2004.

140. The aforesaid tables disclose that in the year 1998, as against 11 posts which were ear marked for category 3A, 55 candidates should have been called for the personality test. Whereas, three times the number of candidates are called for the personality test, i.e., 169 candidates belonging to 3A category were called for the personality test. In other words, 114 candidates belonging to the unreserved category were denied the opportunity to participate in the personality test.

141. In the 1999 batch, 5 posts were reserved for 3A category. Therefore, 25 candidates belonging to 3A category should have been called for the Personality Test. Whereas, double the number of candidates namely 53 candidates were called for the Personality Test, i.e. 28 candidates more than what is prescribed were called for the Personality Test. In other words, 28 candidates belonging to unreserved category were denied the opportunity to participate in the personality test because of this illegality.

142. Similarly, in the 2004 batch, 6 posts were ear marked for 3A category and 30 candidates should have been called for the personality test, where as, 106 candidates have been called. Thus, 76 candidates belonging to general merit has been denied the opportunity of being called for the personality test.

143. The explanation offered for this discrepancy is, by application of the Government Order even at that stage meritorious candidates belonging to the reserved category were called for the personality test. Therefore it patently violates the Rule prescribed. The injustice which is done because of this wrong procedure is apparent. If we look into the Table furnished by the KPSC giving the particulars of the reserved category candidates selected under the General Merit in 1998, 1999 and 2004 Gazetted Probationers Examinations, in 1998 batch, 28 persons belonging to 3A category find a place in the general merit category in 1998 Batch, whereas, 14 persons find a place in the general merit category who belong to 3A category in 2004 Batch. In fact, 35 out of 187 candidates reserved for general category has been filled up by reserved category. 11 out of 96 candidates in 1999 batch were filled up by reserved category and 26 out of 74 persons belonging to reserved category are appointed in the general merit category. Thus wrong application of the Government Order has denied equal opportunity to the meritorious candidates belonging to the unreserved category thus violating Article 14 and 16(1) of the Constitution.

144. In the 1998 selection, in all 414 candidates belonging to general merit and in the 1999 batch, 205 candidates belonging to general merit and in the year 2004, 282 candidates belonging to general merit were denied an opportunity to participate in the personality test, thus seriously affecting their fundamental right guaranteed under the Constitution under Article 14 and 16(1) as well as the right conferred on them under the Rules.

PRACTICE

145. Sri. P.S. Rajagopal, learned Senior Counsel appearing for the KPSC contended that from the year 1975 onwards, not only the KPSC but all the Governmental agencies have followed the procedure prescribed under Schedule II in terms of the Government Order dated 09.07.1975 and Annexure-2 deals with the mode of selection. Relying on the several judgments of the Apex Court, as well this Court, he submitted that the question of this Court finding fault with the said procedure which is well established would not arise at this stage. However, it is always open to the Court if it feel a reformation in the procedure followed by the KPSC is required, that could be done only for future selection by issuing appropriate direction to KPSC in this regard.

146. The learned Counsel for the petitioners Sri Vikram Phadke submitted that when the procedure followed is unconstitutional and offending Article 14 and 16(1) of the Constitution, the question of this Court declining to interfere with the said procedure on the ground that it is in force for long period would not be proper. As it is unconstitutional, it requires to be set aside.

147. In support of his contention, the learned Senior Counsel Sri. P.S. Rajagopal, appearing for KPSC, relied on the following judgments:

148. The Apex Court in the case of S.B. BHATTACHARJEE v. S.D. MAJUMDAR AND OTHERS reported in MANU/SC/7658/2007 : 2007(10) SCC 513 dealing with the weight to be attached to the practice which is followed for a considerable time held as under:--

"19. The Rules indisputably envisage that a person having an overall grading of 'outstanding' shall alone be considered vis--vis who do not come within the purview of the gradation of outstanding despite the fact that in their service career they might have received overall grading of 'Very Good'.

27. It may be that in a given case, the court can with a view to give effect to the intention of the legislature, may read the statute in a manner compatible therewith, and which would not be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. But, however, it is also necessary for us to bear in mind the illustration given by the executive while construing an executive direction and office memorandum by way of executive construction cannot be lost sight of. It is in that sense the doctrine of contemporanea expositio may have to be taken recourse to in appropriate cases, although the same may not be relevant for construction of a model statute passed by a legislature.

28. In G.P. Singh's 'Principles of Statutory Interpretation, 10th Edn. at p. 319, it is stated:

"But a uniform and consistent departmental practice arising out of construction placed upon an ambiguous statute by the highest executive officers at or near the time of its enactment and continuing for a long period of time is an admissible aid to the proper construction of the statute by the Court and would not be disregarded except for cogent reasons. The controlling effect of this aid which is known as 'executive construction' would depend upon various factors such as the length of time for which it is followed, the nature of rights and property affected by it, the injustice result from its departure and the approval that it has received in judicial decisions or in legislation.

Relying upon this principle, the Supreme Court in Ajay Gandhi v. B. Singh having regard to the fact that the President of the Income Tax Appellate Tribunal had been from its inception in 1941 exercising the power of transfer of the members of the Tribunal to the places where Benches of the Tribunal were functioning, held construing Sections 251(1) and 255(5) of the Income Tax Act that the President under these provisions has the requisite power of transfer and posting of its members. The court observed : "For construction of a statute, it is trite, the actual practice may be taken into consideration."

Contemporary official statements throwing light on the construction of a statute and statutory instruments made under it have been used as contemporanea expositio to interpret not only ancient but even recent statute both in England and India."

149. The Supreme Court in the case of DR. UMA KANT v. DR. BHIKALAL JAIN AND OTHER reported in MANU/SC/0492/1991 : (1992) 1 SCC 105 dealing with the procedure in vogue for considerable time has held as under:--

"9. If we examine the matter from another angle, it would be clear that according to the university such a procedure is in vogue in all the universities of Rajasthan that a reserve list is used for the appointment on a vacant post caused during the validity period of the reserve list, and numerous appointments had been made in the last decade from the reserve list. The university has also submitted that if the view taken by the High Court is held to be correct, it will create chaotic situation in the university as all appointments so far made from the reserve list will become assailable. It is well settled that in matters relating to educational institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities."

150. The Apex Court in the case of N. SURESH NATHAN AND ANOTHER v. UNION OF INDIA AND OTHERS reported in MANU/SC/0101/1992 : 1992 (Supp) 584 regarding the weightage to be given to the practice followed in the department for a long time held as under:--

"4. In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents Diploma-holders that the practice followed in the Department for a long time was that in the case of Diploma-holder Junior Engineers who obtained the Degree during service, the period of three years' service in the grade for eligibility for promotion as Degree-holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma-holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents Diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6, 1968 extracted at pages 99-100 of the paper book in the counter affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined".

151. The word "as far as may be" found in the personality test clause (c) in the Rules of 1997, was the subject matter of interpretation by the Karnataka Administrative Tribunal in the case of KADALI S.M. AND OTHERS v. KPSC, BANGALORE AND OTHERS reported in 1996 KSLJ 553. There they were interpreting the said phrase contained in Rule 9 of the 1966 Rules which is in pari materia with the personality test found at clause (c) in the earlier portion. It held as under:--

"22. RE. OUESTIONNOS 6 & 7:--

Rule 9 of the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1966, reads,-

"Candidate to be called for Personality Test-The Commission shall call for a personality test, as far as may be, ten times the number of candidates as there are vacancies in the services in the services in categories I and II respectively, of schedule I in order of merit on the basis of the results of written papers subject to making provisions for calling candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward Classes to the extent vacancies are reserved for them."

There is no dispute that the number of candidates to be called for interview, referred as 'ten' has been amended, as 'five times'.

The Applicants contend that the candidates listed for interview far exceeded five time the number of posts to be filled up.

The Service Commission explained the position, by pointing out that if only five time the number of posts are considered in abstract, it was impossible to consider the cases of candidates belonging to the reserved categories and the latter part of the above Rule required the Service Commission to consider this aspect also. The five times number on the basis of merit in the written examination did not include requisite number of those belonging to the categories of Scheduled Caste, Scheduled Tribes and other Backward Classes and that in each category the candidates to be called for interview shall have to be five times the posts to be filled up. The candidates belonging to these reserved categories are to be first considered in the General merit Category because they are entitled to compete for selection in that category also. Further, Rule 9 of the said Rules does not prescribe an inflexible, rigid principle; it is a rule of guidance.

We agree with the contention of the Service Commission. The Chart produced by the Service Commission shows that it was necessary to call a large number of candidates than five times the posts to be filled up. This part, Rule 9 of the said Rules itself indicates that it is a rule of guidance; it states,-

"The Commission shall call for a personality test, as far as may be, five times the number of candidates as there are vacancies......"

(Emphasis is ours.).

The phrase 'as far as may be' vests a discretion in the Service Commission to decide upon the number of candidates to be called for personality test, depending upon circumstances or the situation in a particular case.

The Supreme Court construed this phrase, found in a Rent Control Legislation in SUBRAMANIAM SHANMUGHAM v. RAJENDRAN M.L. AND OTHERS, the Court held that the phrase means, 'as the situation may be'.

Even otherwise, we fail to understand as to how the Applicants can question the number of candidates called for personality test. They cannot restrain the number of competitors. More the number, means a larger zone of consideration and there is a chance of some extra-ordinary personality stepping into the field of consideration.

The contention of the Applicants is, accordingly, rejected."

152. The Apex Court in the case of RAJENDRA SINGH AND OTHERS v. STATE OF U.P AND OTHERS reported in MANU/SC/0648/1998 : 1998 (7) SCC 654 explaining the words "as far as possible" used in Section 12A of the UP Imposition of Rent Act, 1960 held as under:--

"6. The words "as far as possible" have been used in the main Section as also in Clause (d) of the Proviso. These words are not prohibitory in nature. They rather connote a discretion vested in the Prescribed Authority who can exercise that discretion at the time of carving the surplus area from out of the total holding of a person.

7. Section 5(1) provides that a tenure-holder shall not be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him.

8. Section 9 provides that the Prescribed Authority shall, by general notice, published in the official Gazette, call upon every tenure-holder holding land in excess of the ceiling area applicable to him, to submit a statement in respect of all his holdings wherein he shall also indicate the plots which he would like to retain as part of his ceiling area. It is this choice which referred in Section 12-A and it is provided that the Prescribed Authority shall, as far as possible, accept the choice indicated by the tenure-holder as to the plots which he would like to retain as part of his ceiling area. It is at this stage, that the description can be exercised by the Prescribed Authority and he may not take over those plots as part of the surplus area. It is thus "discretion", and not "compulsion", which constitutes the core of this statutory provision. It is obvious that before taking over any area as surplus area or leaving any area as ceiling area of the tenure-holder, the Prescribed Authority shall first take into consideration the choice indicated by the tenure-holder and if it is not possible, to act wholly upon the choice, for which there may be variety of reasons, the Prescribed Authority will proceed in his own way to leave the area determined by him as the ceiling area with the tenure-holder and take over the other area as surplus area."

153. Reliance was placed on a Division Bench judgment of this Court in the case of N. SRIRAMAN v. UNION OF INDIA AND OTHER, reported in 2004 (7) KANT LJ 152 where the question for consideration was, in the absence of an order of appointment of selected officers, whether the Administrative Tribunal has jurisdiction to stay the selection process. It was held as under:

"16. The process of selection is in the present case conducted at different stages and passes through the scrutiny of different constitutional authorities. Each stage dealt with by such authority may in the wider sense of the term constitute an order within the meaning of Section 19 which would suffice for purposes of invoking the jurisdiction of the Tribunal.

17. There is yet another angle from which the question can be examined. The jurisdiction of the Tribunal being wide and all embracing, the provisions of Section 19 which are meant to regulate the procedure for invoking the said jurisdiction alone prevent the exercise of the same only on account of the absence of any procedural formality or deficiency. Procedure whether the same is prescribed for trial of cases by Civil Courts or for adjudication of disputes by Tribunals is primarily aimed at facilitating an adjudication and ensuring that the same is arrived at in a manner that is fair and just so that it inspires the confidence of all concerned. It is only when the language employed in the statute in so couched as to make a particular provision, no matter procedural in nature, mandatory that the same may be treated to be so. In order that any such procedural requirement may be mandatory, the legislation ought to prescribe the consequence flowing from the failure of the requirement or the language employed should be so unmistakably clear that no other conclusion may be possible except that the provision is mandatory. The Legislature in this regard often employs use of negative words which are an indication of the provision being mandatory in nature."

154. A reading of the aforesaid judgments demonstrates that a procedure which is in vogue for a considerable length of time should be respected. If two interpretations are possible, the Court would ordinarily be reluctant to accept that interpretation which would upset and reverse the long of course of action. Therefore, in the aforesaid judgments, they declined to interfere with the procedure which is followed for a considerable length of time.

155. In the instant case, it is not a case of a particular procedure being followed in the absence of any rule of law in that regard. The Karnataka Legislature has passed the Karnataka State Civil Services Act, 1978, (Karnataka Act No. 14/1990) providing for recruitment of Gazetted Probationers in exercise of powers conferred by sub-section (1) of Section 3 read with Section 8 of the said Act, the Government of Karnataka has made the Karnataka Recruitment of Gazetted Probationers (Appointment of Competitive Examinations) Rules, 1997. The said Rules provides for holding of competitive examination, conduct of competitive examination, reservation for Scheduled Caste and Scheduled Tribe and other Backward Classes and how the list of candidates suitable for appointment should be prepared.

156. The area is fully covered by Legislation. Further the Schedule to the said Rules provides for Scheme of Examination. Thereafter the Government Order dated 03.05.1994 and 20.06.1995 provide for reservation of appointments in direct recruitment in the State Civil Services under Article 16(4) of the Constitution of India. This Government Order dated 3rd May, 1994 is to be followed while preparing the list of candidates suitable for appointment as provided under Rule 11. These Rules and Government Orders are in conformity with Article 16(4) of the Constitution of India. While giving effect to these Rules and Orders, KPSC has ignored the Constitutional goal and scheme.

157. Article 14 of the Constitution provides that State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Similarly, Article 16(1) of the Constitution of India provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16(2) provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. The procedure that is followed by the KPSC offends Article 14 as well as Article 16(1) and (2).

158. Article 13 of the Constitution declares that the clause inconsistent with or in derogation of the fundamental rights be void. Clause (a) of Sub-Article (3) of Article 13 provides that in this Article, unless the contest otherwise requires, 'law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Sub-Article (1) of Article 13 declares that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far they are inconsistent with the provisions of this part shall, to the extent of such inconsistency be void. Similarly, sub-Article (2) declares that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

159. The effect of the procedure that is being followed by the KPSC in the recruitment process is, unreserved category candidates are deprived of an equal opportunity in the matter relating to employment as well as appointment to a Office in the State. This infringes their fundamental right of equality before law and equal opportunity in matters of public employment. Therefore the procedure followed by them being contrary to the Rules and the Government Orders, and as it offends Article 14 and 16(1) of the Constitution, the said procedural lapse cannot be condoned under any circumstances.

160. Therefore, the aforesaid judgments on which reliance is placed really have no application to the facts of this case as in none of those cases the long practice for a long period of time did offend any fundamental rights of the citizens of this Country much less, the fundamental right under Article 14 and 16 of the Constitution.

LEGAL POSITION:

161. Public employment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that commodity. This is reality of life. The concept of 'equality of opportunity' in public employment concerns an individual, whether that individual belongs to general category or backward class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class under Article 16 (4) has to be balanced. Backward classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of Scheduled Caste and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16(1) is individual- specific whereas reservation in Article 16(4) and Article 16(4A) is enabling reservation under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of backward classes and claims of other employees as well as the requirement of efficiency of administration. Article 16(4) speaks of adequate representation, but not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant. The proportion of the population of a caste is a consideration to be taken note of in determining the percentage of representation to be given to that caste in the 50% posts reserved for SC and ST and other Backward Classes. It has no relevance in determining the percentage of representation to be given in the total posts to be filled up. It is because the Supreme Court in the case of Indira Sawhney has fixed the percentage of 50% to be filled up by reserved category. Irrespective of the population, the reservation cannot exceed 50% of the total number of posts. In this regard, it is relevant to notice the object behind Article 16(4) as explained by Dr. B.R. Ambedkar in the Constituent Assembly.

"...there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality (Sic.) of opportunity for all citizens. It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality or opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative and it ought to be operative in their judgment to its fullest extent - there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have. Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration. If honourable Members will bear these facts in mind - the three principles we had to reconcile, - they will see that no better formula could be produced than the one that is embodies in Sub-clause (3) of Article 10 of the Constitution. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now - for historical reasons -been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public service to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word "backward" which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly....

Somebody asked me: "What is a backward community"? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government.

The above material makes it amply clear that the objective behind Clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be made broad - based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted there into and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities - to give them a share in the administrative apparatus and in the governance of the community."

162. A Nine member Constitution Bench of the Apex Court on a reference to finally settle the legal position relating to reservation in the case of INDIRA SAWHNEY v. UNION OF INDIA reported in MANU/SC/0104/1993 : AIR 1993 SC 477 formulated 11 questions and have laid down the law. The said law declared by the Apex Court is binding on all Courts. The law laid down which is relevant for the purpose of this case is as under:--

(1) Reservation in public services either by legislative or executive action is neither a matter of policy nor a political issue. The higher courts in the country are constitutionally obliged to exercise the power of judicial review in every matter which is constitutional in nature or has potential of constitutional repercussions.

(2) (a) Constitutional bar under Article 16(2) against state for not discriminating on race, religion or caste is as much applicable to Article 16(4) as to Article 16(1) as they are part of the same scheme and serve same constitutional purpose of ensuring equality. Identification of backward class by caste is against the Constitution.

(b) The prohibition is not mitigated by using the word, 'only' in Article 16(2) as a cover and evolving certain socio-economic indicators and then applying it to caste as the identification then suffers from the same vice. Such identification is apt to become arbitrary as well as the indicators evolved and applied to one community may be equally applicable to other community which is excluded and the backward class of which is denied similar benefit.

(c) Social and educational backward class under Article 340 being narrower in import than backward class in Article 16(4) it has to be construed in restricted manner. And the words educationally backward in this Article cannot be disregarded while determining backwardness.

(3) Reservation under Article 16(4) being for any class of citizens and citizen having been defined in Chapter II of the Constitution includes not only Hindus but Muslims, Christians, Sikhs, Budhs, Jains etc. the principle of identification has to be of universal application so as to extend to every community and not only to those who are either converts from Hinduism or some of whom to (who) carry same occupation as some of the Hindus.

(4) Reservation being extreme form of protective measure or affirmative action it should be confined to minority of seats. Even though the Constitution does not lay down any specific bar but the constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50%.

(5) Article 16(4) being part of the scheme of equality doctrine it is exhaustive of reservation, therefore, no reservation can be made under Article 16(1).

(6).........

(7).........

(8) Creamy layer amongst backward class of citizens must be excluded by fixation of proper income, properly (Sic.) or status criteria."

In the aforesaid judgment, the Apex Court also held as under:--

"Reservation in promotion is constitutionally impermissible as, once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it."

163. It is in this background, the Parliament brought the Constitution (Seventy-Seventh Amendment) Act, 1995; The Constitution (Eighty-First Amendment) Act, 2000; The Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001. All those amendments were challenged before the Apex Court in the case of M. NAGARAJ v. UNION OF INDIA reported in MANU/SC/4560/2006 : (2006) 8 SCC 212 where after elaborate discussions of the earlier judgments and the amendments, the Apex Court declared the law as under:--

"121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with in-built concept of replacement as held in R.K. Sabharwal.

122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

123. However, in this case, as stated above, the main issue concerns the "extent of reservation". In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy Seventh Amendment) Act, 1995; the Constitution (Eighty First Amendment) Act, 2000; the Constitution (Eighty Second Amendment) Act, 2000 and the Constitution (Eighty Fifth Amendment) Act, 2001."

164. In the case of UNION OF INDIA v. RAMESH RAM AND OTHERS reported in MANU/SC/0343/2010 : (2010) 7 SCC 234, the Constitution Bench of the Apex Court dealing with the question of migration of meritorious reserved candidates from general merit to the reserved category held as under:

"72. We sum up our answers-:

i) MRC candidates who avail the benefit of Rule 16(2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the General Pool will be offered to General category candidates.

ii) By operation of Rule 16 (2), the reserved status of an MRC candidate is protected so that his/her better performance does not deny him of the chance to be allotted to a more preferred service.

iii) The amended Rule 16 (2) only seeks to recognize the inter se merit between two classes of candidates i.e. a) meritorious reserved category candidates b) relatively lower ranked reserved category candidates, for the purpose of allocation to the various Civil Services with due regard for the preferences indicated by them.

iv) The reserved category candidates "belonging to OBC, SC/ST categories" wso are selected on merit and placed in the list of General/Unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16 (2) is not inconsistent with Rule 16 (1) or Articles 14, 16 (4) and 335 of the Constitution."

165. Therefore the law on the point is well settled. Article 16(4) protects interests of certain sections of society. It has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of principle of equality under Article 14.

166. General category candidates are not entitled to fill the reserved posts. Reserved category candidates are entitled to compete for the general category posts. When persons belonging to reserved category get selected in open competition on the basis of their merit, they are not to be counted in the reserved category against the reserved category quota. He can be considered for appointment only against General category post and the quota of the particular reserved category cannot be reduced by treating his appointment as one made against the post earmarked for the reserved category to which he belongs. It is open to the authorities to fill the posts meant for reserved category candidates from amongst the persons in such categories after excluding those who have found their place in general merit. The fact that considerable number of members of backward class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class.

167. It is now well entrenched principle of law that those members belonging to reserved category who get selected in the open competition on the basis of their own merit have right to be included in the general list/unreserved category and not to be counted against the quota reserved for Scheduled Caste. Reserved category candidate who is adjudged more meritorious than open category candidates is entitled to choose the particular service/cadre/post as per his choice/preference and he cannot be compelled to accept appointment to an inferior post leaving the more important service/cadre/post in the reserved category for less meritorious candidate of that category. On his appointment to the service/cadre/post of his choice/preference, the reserved category candidate cannot be treated as appointed against the open category post. The appointment of less meritorious candidate of the reserved category against the service/cadre/post of his choice and denial of such appointment to more meritorious candidate of that category would result in blatant violation of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.

168. The concept of reservation in Article 16 (4) is hedged by three Constitutional requirements, namely backwardness of class, inadequacy of representation in public employment of that class and over all efficiency of the administration. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 16 (4) must, therefore, strike a balance between several relevant considerations and proceed objectively. The doctrine of equality of opportunity in clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.

169. From the aforesaid discussion, it is clear that, the KPSC has followed the procedure prescribed in the Government Orders dated 3.5.1994 and 20.6.1995 in preparing the eligibility list of candidates who are admitted to the written examination and who are to be called for the personality test in 1998, 1999 and 2004 batch. It is illegal. It is contrary to the Rules. The said Government Order has to be applied after the personality test is over and at the time of preparation of list of candidates suitable for appointment under Rule 11 only. Thus, admittedly the ratio prescribed in the Rules has not been followed. The resultant position is, meritorious candidates from the unreserved category are denied the opportunity to take the written examination and also denied the opportunity for being called for the personality test. It violates Article 14 and 16(1) of the Constitution. It also violates the Rules and the Government Order referred to supra and, therefore, we have no hesitation in holding that the procedure followed by the KPSC in preparing the list of candidates who are admitted to the written examination and the list of candidates who are to be called for the personality list is unconstitutional and contrary to the Rules and the Government Order referred to supra.

170. From the material on record it is clear that, none of the candidates who took part in the selection process are in any way responsible for KPSC following the aforesaid procedure. Even the candidates belonging to unreserved category did not insist on any claim by virtue of the Government Order at the stage of written examination or at the stage of personality test. It is not as if all the persons who have taken the written examination and attended the personality test are not eligible for being selected for the posts to which they are selected. It is submitted on behalf of the KPSC that, hardly a handful of candidates might have migrated from the unreserved category to the reserved category and those candidates have no role to play in this regard.

171. It is settled law that for the misdeeds of some candidates, honest and meritorious candidates should not suffer. Candidates should not be made to suffer by enmass cancellation leading to termination of their services. Every endeavour should be made to segregate the non-meritorious candidates from those who are without any stigma and had been selected because of their sheer merit and not on account of any illegality. It is only when such segregation is not possible, the Court may think of cancelling the entire selection. However, those candidates whose names find a place in the list of candidates suitable for appointment, if they did not possess the requisite eligibility criteria/merit, then, the appointment of such persons have to be set aside. Therefore on the ground that the KPSC has not followed the Rules in preparing the list of candidates to be admitted to the written examination and the list of candidates who should be called for personality test, the entire selection of 1998, 1999 and 2004 batch cannot be set aside.

172. The segregation of tainted/ineligible candidates who have secured employment is possible. For example, as per Table A12, the number of posts reserved for 3A category is 11 and the number of persons who have been called for the personality test in the ratio of 1:5 is 55. Whereas, the number of persons called for the personality test is 169. If the names of 39 selected persons find a place in the list within the first 55 names, their selection stands. If among them, 28 persons had the requisite merit and they are selected against the General Merit category, they are entitled to be appointed as General Merit candidate. In addition to that, 11 posts have to be filled up from the candidates belonging to 3A category. But if the names of these 39 persons do not find a place in the first 55 names, then, such persons' appointment would be void, ab initio. The reason is, persons below Sl. No. 55 in the list of 3A category candidates lack necessary merit to be called for the personality test. They did not have the eligibility. Therefore, they were not within the zone of consideration. If in the personality test, by virtue of more marks given to them, if their names find place in the list of candidates selected for appointment to the post under Rule l1 of the Rules, it is obvious that it is the marks which they have secured in the personality test which has played a crucial role in their selection. In other words, a candidate who was not eligible to be called for the personality test, has secured a place in the merit list and therefore such appointment cannot be upheld. This is where the report of Mr. Hota assumes importance. When the marks secured by the candidates in the written examination are made known, in other words, they are not kept confidential, these candidates attempted to approach the members of the KPSC to secure more marks, so that they are selected for the said post. Therefore the candidates who are not eligible to be called for the personality test, if they have secured more marks in the personality test and are selected, it cannot be said that they were all innocent and their appointment is in accordance with law. Therefore, the said appointment is liable to be set aside and the merit list is to be prepared excluding such persons and if there is any short fall, give the said posts to persons whose names finds place within the prescribed limit.

173. The particulars furnished by the KPSC as aforesaid discloses that in 1998 batch more persons than the prescribed ratio are called for the personality test in respect of all the reserved categories. Consequently, in 1998 batch, the name of the 35 persons belonging to the reserved category find a place in the General Merit category. In 1999 batch, 11 persons belonging to reserved category were selected under the General Merit category and in the year 2004, 26 persons out of 74 persons belonging to reserved category were selected in the General Merit category. It is made clear that if these category of persons who are selected in the General Merit category or Revised category, if their names find a place within the permissible ratio of persons to be called for the personality test, they are to be treated as validly appointed. But if their names do not find a place in the permissible ratio, such appointments are liable to be set aside and accordingly set aside.

174. Therefore the KPSC keeping in mind the procedure laid down by us, has to prepare a list of persons belonging to each of the reserved category in 1998, 1999 and 2004 batch. In the said reserved category list, the number of persons who should be called for the personality test in the ratio of 1:5 equal to the post reserved in that category have to be prepared. Then find out from that list, whether the persons who are in the selected list both under the General Merit and Reserved category find a place. If their names are within that limit, their appointment is valid. If their names do not find a place within that list, notwithstanding the marks which they have secured in the personality test, their names have to be removed from the merit list and consequently, their appointment is to be set aside.

175. This exercise shall be done by the KPSC within two months from the date of receipt of the copy of this order.

POINT No. 2 - ANNULLED MARKS

176. The learned Senior Counsel Sri. M.B. Nargund submits that the direction of this Court earlier to KPSC to redo moderation in the manner suggested by the KPSC in para (b) of its memo dated 27.03.2002 is now carried out, this substantially proves the contention of the petitioner regarding the illegality in evaluation and therefore the revised list prepared by the KPSC according to the direction of the High Court order is to be upheld and given effect to.

177. Sri S. Vijay Shankar, learned Senior Counsel appearing for some of the successful candidates assailing the revised selection list for the post of Gazetted Probationers, 1988 contended that as the KPSC has become functus officio, they had no jurisdiction to revise the final selection list as they have done now. In the affidavit filed on 19.3.2016, explaining the circumstances under which this revision of selection list was done, in para-2, they have categorically stated that when once they have sent the final list by following the required procedure, they had become functus officio, but in view of the Government direction and dictates, they were constrained to re-do the whole thing and therefore, it is clear that this revised selection list was done by the KPSC at the dictate of the Government, which had no authority to do it. On that score, the said list has to be quashed.

178. Further he contended that in the affidavit through out they have referred to moderation and scaling. However, no material is placed on record to demonstrate what is the basis for the so-called moderation and scaling. At any rate, before moderation or scaling, the successful candidates whose status have now been seriously affected were neither notified nor heard as were the requirement of law and therefore, the said list is in violation of the principles of natural justice. He also contended that scaling and moderation is a technical aspect and absolutely no material is placed on record to demonstrate what is the procedure to be followed either in moderating or in scaling.

179. Lastly he contended that because of the so-called scaling or moderation, candidates who are holding higher posts for the last 10 years are now pushed down, thus seriously affecting their civil rights. Even if the Court were to lay down the procedure to be followed by the KPSC, it has to be only prospective since more than 10 years, these persons are holding the said posts. In support of his contentions, he relied upon several judgments of the Apex Court including Sanjay Singh v. U.P. Public Service Commission reported in MANU/SC/0563/2007 : (2007)3 SCC 720 and Sunil Kumar v. Bihar Public Service Commission reported in MANU/SC/1159/2015 : (2016) 2 SCC 495. He also contended that the KPSC being the Constitutional authority is vested with the power to conduct selection to these Government Officers. It is an independent body and the Government has no role to play in this selection and when such being a case, they could not have issued any direction to the KPSC and even if the directions were given, KPSC is not obliged to act in terms of the said directions and therefore, this revised selection list seen from any angle is vitiated and cannot be given effect to. He also contended that when this Court appointed the Fact Finding Committee, the successful candidates were not parties and the said Committee is constituted before they were made parties. The job assigned to the Committee was a technical job. The learned Members representing the various State Holders are made the Members of the Committees, who do no have requisite expertise to go into the question. Similarly when the said report is submitted and successful candidates have not been heard, it also violates the principles of natural justice and therefore, the said reported submitted by the Fact Finding Committee appointed by this Court, cannot be acted upon and cannot be relied upon.

180. Sri P.S. Rajagopal, learned Senior Counsel appearing for the KPSC in answer to the argument that KPSC had become functus officio and that after submitting the select list to the Government, the Government directed to them to revise the list, submits that there was no such direction from the Government. He has referred to the order sheet in the present case, where in view of the CID report it became clear that annulled marks are taken into consideration in preparing the final select list, KPSC was called upon to exclude those three persons and then they submitted they have to interview 94 persons as a consequence of such exclusion and then arrive at a select list.

181. In fact in a sealed cover they had given the data showing the consequences of such exclusion and such inclusion. Thereafter they were granted six weeks time to conduct an interview which was done and consequently they submitted to the government a list in a sealed cover. It is by virtue of the Court Order the said list was prepared. Therefore, he submits that the KPSC has not submitted any revised list to the Government as contemplated under Rule 11 of the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997, the said list is submitted as per directions issued by this Court in these proceedings.

182. As per the revised list, the consequences are, because of the exclusion of those three persons who had become ineligible to attend interview and annulment of marks, 28 persons will go out of the list and new 28 candidates will come into the list. Some of them may loose their job. If a candidate who was ineligible is appointed and subsequently when it is found that he was ineligible, no equity or law would come to his rescue to continue in the said post. Law of adverse possession would not apply to service law. However, if persons who were wrongly denied the berth after considerable lapse of time also cannot be considered.

183. This Court in W.P. Nos. 12548-589/2002 and other connected matters decided on 11th October, 2002 held that the order of the Karnataka Administrative Tribunal declaring that the entire valuation of Answer Scripts is arbitrary and consequently directing fresh evaluation in terms of para 78 of the said order was set-aside. However, this Court declared that moderation/random review carried out by the Head Examiners and Chief Examiners with reference to the subjects mentioned in Clause (b) of para 38 was held to be inadequate, improper and illegal and quashed the same. Consequently, this Court directed the KPSC to redo a fresh moderation in regard to the aforesaid Eighteen optional subjects and also General Studies in the manner suggested by the KPSC in para (b) and its memo dated 27.03.2002. Further, it directed that the entire process of moderation shall be done under supervision of the Secretary of the KPSC. Further, it was directed that after evaluation and moderation as aforesaid, KPSC shall redo the list of candidates to be called for personality test, as per the rules and then proceed with the selection as per rules. If on revaluation, such candidates are found to be qualified, they shall also be considered for selection of candidates for interview.

184. By an order dated 10.02.2003 passed on I.A. IV, this Court accepted the request of the KPSC and permitted the KPSC to carry out fresh moderation/random review in regard to four papers, i.e., in Animal Husbandry & Veterinary Science, Paper 1 & 2 and Geology Paper 1 & 2 as per the methodology mentioned in para 39(b) of the order dated 11.10.2002. It was made clear that in other respects, the order dated 11.10.2002 remained undisturbed. Subsequently, again this Court passed an order on 04.07.2003 on I.A. V and gave an illustration to clarify the manner in which their order dated 11.10.2002 is to be implemented by giving an illustration. This order of the High Court was affirmed by the Apex Court in Civil Appeal Nos. 6172-6222/2005 by its order dated 6th October, 2005 and the said order has attained finality. In the aforesaid proceedings, the successful candidates in the examinations were not made parties. Nonetheless, the said orders equally bind each and every successful party. It was a judgment rendered in rem.

185. Subsequent to the aforesaid orders, KPSC proceeded with the selection and after following the procedure, a final selection list was forwarded to the Government for appointment. In terms of the said list, successful candidates were appointed for the post in various Departments of the Government. Challenging the said final list, the candidates, whose names did not figure in the list, filed an application before the Karnataka Administrative Tribunal challenging the said final selection list. The said applications are pending. As no interim order was passed in the said proceedings, the Government proceeded to issue appointment orders to 383 selected candidates. The petitioners filed W.P. No. 11550/2008 seeking a writ of mandamus complaining that the Government has not taken any suitable action in terms of the report of the Three-Man Committee and K.K. Mishra's report, which clearly demonstrates as to how K. Rameshwarappa, Prof. K. Shivanna and Sri. A.K. Monnappa, Secretary of the KPSC have committed offences of Criminal conspiracy, breach of trust and manipulation of records. When the said writ petition came up for consideration, the learned Government Advocate stated that the Government will order investigation in the matter to the CID. The CID after Enquiry submitted the report. In the said report, it is categorically stated that a perusal of the records and the answer scripts show that the KPSC has taken into consideration the marks awarded by the Head/Chief Examiners at the time of scaling. Since the KPSC has taken the annulled marks awarded by the Head/Chief Examiner, it is a violation of the directions issued by the Hon'ble High Court in W.P. Nos. 12548-589/2002. This wrong step of the KPSC has resulted in tilting of marks and ultimate results.

186. It is in this background (as is clear from the affidavit dated 19.03.2006 of Sri. Manoj Kumar Meena, the Secretary of the KPSC, filed in the Court, in compliance of the order dated 18.11.2014) it is stated that during the pendency of these writ petitions, on 02.08.2013 a meeting was called for by the Principal Secretary, Department of Personal and Administrative Reforms (for short 'DPAR') in order to discuss the action required to be taken by the State Government in pursuance of the CID report, requiring the Secretary of the KPSC to participate in the said meeting.

187. Thereafter, by a communication dated 27.08.2013, the Principal Secretary, DPAR wrote to the Commission. The relevant portion of the said communication reads as under:

"In view of the above, I am directed to request you to take action/corrective action on the following points as per the orders of Hon'ble High Court of Karnataka and furnish a detailed report to Government:

To take action on the allegations/findings of the CID in respect of Gazetted Probationers Examinations of 1998, 1999 and 2004, as per the decisions in the meeting held under the Chairmanship of Chief Secretary to Government (statement enclosed).

To take action with specific reference to the most serious allegation No. 3 and findings of the CID thereon with reference to the 1998 Gazetted Probationers Examination and to redo the moderation and scaling in accordance with the directions given by the Hon'ble High Court in its order dated: 11-10-2002.

Redo the selection lists of 1998, 1999 and 2004, as indicated above, if necessary, particularly identifying the illegal beneficiaries who have been appointed and also identifying the fresh candidates who have to be included in their places and to send final select lists by following the required procedures.

To indicate the action taken against the officials of the KPSC, namely Sri. K. Narasimha, Sri. Gopikrishna and Sri. M.B. Banakar, who are indicted in the CID report."

188. Though at that stage, KPSC was not a party to the above writ petitions, they appeared before the Court on 26.08.2013 through its Advocates. Thereafter, they submitted the data of information required by the State Government. Since the Government by its communication dated 27.08.2013 had directed the KPSC to redo the selection list of 1998, 1999 and 2004 particularly identifying the illegal beneficiaries, who had been appointed and also identifying the fresh candidates, who have been included in their places and to send final select list by following the required procedures, the KPSC, by a communication dated 04.09.2013 pleaded their inability to redo the selection on the ground that it is not within their powers as once the final list is published and forwarded to the Government, the KPSC becomes functus officio.

189. On verification of the records by the then Secretary, it was found that the annulled Chief Examiner and Head Examiner marks had been taken into consideration for the purpose of moderation and scaling, which was contrary to the directions issued by this Court in W.P. Nos. 12548-89/2002 and connected matters. By a communication dated 04.09.2013 the KPSC had written to the Government that the cross-checking exercise has been undertaken and considering enormity of the task, four weeks' time more specifically up to 30.09.2013 was required to complete the process and to provide information including the marks awarded by the Examiner, Head examiner, Chief Examiner and any other relevant information, to assist the State Government in this regard. On 05.09.2013, this Court directed the Commission to supply the additional data required by the State Government. On 17.09.2013, the Commission wrote to the Government stating that after undertaking the exercise of cross-checking in respect of the moderation and scaling of 1998 batch, it was found that a total of nine answer scripts covering different subjects were required to be subjected to third valuation. Giving the details of the said scripts, it requested two weeks' time to complete the process of third valuation and to convey the outcome. On 18.09.2013, this Court directed the KPSC to file a statement indicating its stand on the findings contained in the CID report. In respect of the finding of the violation of the High Court order, on 20.09.2013, the KPSC filed its report as under:

"Stand of the Commission: This finding is correct. In pursuance of the said finding the commission is re-doing the exercise of Moderation and scaling in order to find out, if in fact there would be tilting of the total marks secured by a candidate and consequently the select list, if the marks awarded by Chief/Head Examiners were not taken into consideration during moderation and scaling. The said exercise is being undertaken as per the direction of the State Government. In doing so, it is found that a total of 9 scripts in 4 subjects are required to be subjected to Third Evaluation and hence the Commission sought time till 30.09.2013. This will be followed by the preparation of merit list and if any fresh candidate comes within the 1:5 eligibility range (as per merit/reservation) then personality test will be arranged for the said candidates. Based on the outcome, merit list needs to be re-drawn as also the final select list. Considering the contingency and complexity further time may be required by the Commission to complete the entire exercise."

190. On 20.09.2013, this Court appointed a Fact Finding Committee. In the mean time, the KPSC completed the third valuation of the additional answer scripts required to be subjected to third valuation. On 19.02.2014 during the course of hearing the progress in the re-moderation and scaling process was enquired to by this Court. The KPSC informed the Court that a fresh eligibility list (1:20) for personality test (for short 'New PT List') having been prepared 94 candidates, who were not interviewed earlier will find a place in the said list and 94 candidates, who were interviewed earlier will not find a place in the list.

191. On 03.03.2014, a memo was filed by the KPSC giving the said particulars of 94 candidates. The memo reads as follows:

"MEMO

The undersigned counsel for the 3rd Respondent Karnataka Public Service Commission (for short 'Commission') produces along with the present memo the information that this Hon'ble Court had required of the Commission during the course of hearing of the above writ petitions on 19-02-2014 the said information is furnished along with the present Memo under the following heads:

A. List of three selected candidates whose names do not figure in the new Personality Test (PT) eligibility list.

B. List of 94 candidates who were earlier called for PT but who do not figure in the new PT list.

C. List of 94 candidates who have to be interviewed as per the new PT list, which candidates were not interviewed earlier.

D. Names of the persons who were responsible or who carried out, the task of fresh moderation as per the order dated 10-10-2002 passed in W.P. No. 12548/2002 & connected matters.

The present Memo along with the information furnished may kindly be taken on record, in the interest of justice and equity".

192. After taking note of the same, this Court passed an order to the following effect:

"C is with regard to list of 94 persons who have to be interviewed as per the new PT list, which candidates were not interviewed earlier. Learned counsel for KPSC states that time may be granted in order to ascertain the present addresses of those candidates so as to notify them about the date of interview. Once the interviews are held, the effect of performance of those candidates on the final selection list would have to be considered and if the final selection list requires an alteration, then those persons who are presently working and would be affected would also have to be heard in the matter. Therefore, he seeks six weeks time for the said exercise."

193. In the course of these proceedings on the information furnished by the KPSC in particular, the names of the persons who are responsible or who carried out the task of fresh moderation as per the order dated 10.10.2002 passed in W.P. No. 12548/2002 and connected matters, the Court by an order dated 21.03.2014 directed issue of individual notice to those persons to show-cause as to why contempt of court proceedings should not be initiated against them. Accordingly, notices were issued, all of them appeared before the Court, engaged a counsel and filed affidavits showing cause.

194. Sri. B.A. Harish Gowda, was the Secretary of the KPSC at the relevant point of time. He is the person, who took up the process of the moderation and scaling. In his affidavit, he has stated that the said process involved three stages:

"(i) random selection of answer scripts and review/evaluation/moderation;

(ii) Calculation of average variation; and

(iii) Applying the average variation to the answer scripts valued by the same examiner."

195. By the time the first stage was over, the Apex Court in SLP Nos. 11589-639/2003 and connected matters ordered status-quo. Therefore, he stopped the implementation of the High Court Order. By the time, the stay order was vacated upholding the order of this Court, he had been transferred and in his place, Sri. B.S. Ram Prasad had taken charge. Therefore, his contention was, the mistakes now pointed out are all at the second and third stages and therefore he is not responsible in any manner. Sri. B.S. Ram Prasad has also filed his affidavit setting out the steps that were required to be carried out by the KPSC as per the directions issued and the previous Secretary has started the process of moderation and scaling. After assuming the charge as the Secretary on 12.08.2004 as moderation was substantially completed, he continued with the said process with the assistance of the staff, who were involved in the entire process. Having regard to the time frame within which the entire process had to be completed, it was done. He absolutely had no knowledge of the error that had crept in at that stage, as such nothing can be attributed to him. In a career of 30 years as a Government servant there has been no black-mark whatsoever. The other officials also have filed their affidavits pointing out that they have no role at all in the process of moderation or they had retired or transferred. Both Sri B.A. Harish Gowda and Sri B.S. Ram Prasad have since retired from service.

196. One thing that emerges from the aforesaid facts is that the previous Secretary is trying to shift the blame on the Secretary, who took charge after his leaving the Commission. The subsequent incumbent is trying to put the blame on the previous Secretary. But from the material on record, it is clear that none of these persons had any personal interest in any of the candidates. In fact the members of the Commission had difference of opinion with Sri. Harish Gowda regarding the manner, in which this process is to be conducted. No malafides are attributed to any one of them. Now that the mistakes pointed out in the CID report have been corrected by redoing the moderation/scaling as directed by the High Court all that can be said is, if these officials were little more diligent and careful, they could have avoided these mistakes. But it cannot be said that they deliberately violated the Court order. These officials are no more in service. As such we do not find any justification to continue with the contempt proceedings and accordingly we drop the same.

197. On 26.03.2014, this Court permitted the KPSC to proceed with the processing of the aforesaid 94 candidates by arranging interviews and to complete the processing within six weeks. Accordingly, after completing the process, a fresh list was prepared and submitted to this Court in a sealed cover. This Court by an order dated 11.11.2014 directed web-hosting of the said list in the website of the KPSC on 12.11.2014.

198. In the affidavit filed on 19.03.2006, in para 3, the procedure followed by the KPSC in the re-moderation and scaling undertaking is set out as under:

"(a) Moderation and scaling was directed to be carried out by the Hon'ble High Court of Karnataka by its order dated -passed in W.P. Nos. 12548-589/2002 and connected matters only in respect of the subjects where the marks awarded by the Head Examiners (HE) and Chief Examiners (CE) were quashed. Hence, Moderation and Scaling has been confined to the said subjects.

(b) The Moderation and Scaling carried out prior to the publication of the Final Select List dated 28-02-2006 is referred to as 'First Moderation' and the Moderation and Scaling undertaken by the Commission is referred to as 'Re-moderation.'

(c) The first step involved was crosschecking of the marks entered in the computer database paper-wise and examiner-wise in order to tabulate the original examiner marks and discard the HE/CE marks.

(d) In the process of first moderation examiner-wise and paper-wise 10% answer scripts (5% top and 5% random) were already picked out for second valuation and valued.

(e) The said second valuation marks of the 10% answer scripts picked out are compared with the original examiners marks to determine the difference between the two marks. At this stage it is pertinent to state that in the event of the HE/CE marks having been taken into consideration earlier in respect of the 10% picked-out answer scripts, there would be change in the difference of marks from the first moderation to the re-moderation as the difference in marks in the re-moderation is between original examiner and the second valuation marks. However, in case of picked-out scripts, which were not corrected either by HE or CE or both, then the difference of marks would remain the same as in the case of first valuation.

(f) Thereafter, the average variation is arrived at by adding the difference in marks in respect of the 10% picked-out answer scripts divided by the number of answer scripts picked-out.

(g) If the average variation is more than (+) or (-) 20 then original examiner marks of all the scripts examiner is added or subtracted by such average variation and the final scaled marks would be after such addition or subtraction.

(h) In the event of the average variation being less (+) of (-) 20 then no addition or subtraction is necessary and the original examiner marks have been retained. However, in individual cases of picked-out answer scripts if the difference between the marks awarded by the original examiner and second valuation is more than (+) or (-) such sc are subjected to third valuation and the marks awarded in the third valuation is taken as the final marks.

(i) In the first moderation after arriving at the average variation, the addition or subtraction was carried out by using HE/CE marks, where HE/' CE had evaluated the scripts. However, in case of scripts evaluated only by original examiner, even in the first valuation the addition and subtraction was only from the original examiner marks.

(j) It is pertinent to state that the illustration contained in the CID report at pages 25 to 38 does not give the correct scope of correction, in as much as, the CID has pointed out the fact that at the stage of addition or subtraction of the average variation, the HE and CE marks have been used instead of original examiner marks. However, if in case in the first valuation HE and CE marks were used for calculating the average variation (in respect of Picked-out answer scripts) then in the re-moderation even the average variation would undergo a change. CID did not appreciate this aspect and hence the calculations given in the CID report in pages 25 to 36 cannot be used in order to determine the correct difference of marks on re-moderation."

199. The argument of the learned Senior Counsel Sri. S. Vijayshankar proceeds on the assumption that the KPSC has no power to alter the final list once it is submitted to the Government, as it becomes functus officio. The fact set out above clearly demonstrates that it is not a suo motto revision of the select list by the KPSC. The material on record clearly demonstrates that the proceedings were initiated challenging the final list on the ground of fraud and grave illegality perpetuated at the stage of evaluation of the answer scripts and at the time of personality test. The Enquiry Report of the CID, fully supports the said view. The KPSC has admitted the finding in the CID report that the annulled marks awarded by the Head/Chief-Examiners have been taken into consideration for the purpose of moderation and scaling, which is contrary to the order dated 11.10.2002 passed in W.P. Nos. 12548-589/2002. The KPSC Member of the Fact Finding Committee has observed that to what extent the said error would tilt the marks and ultimately, the results would have to be worked out by the KPSC will be known only after redoing all the exercise of moderation and scaling by taking into consideration the marks awarded by the original examiners.

200. It is in those circumstances, on verification of the records, KPSC was convinced that the said irregularities are correct and in view of the earlier order of this Court directing re-examination and how moderation/scaling is to be done and if the KPSC had not undertaken this revision, it would have amounted to abdication of its duties and also amounting to contempt of the court order. Though the candidates who took the written examination and personality test may not have any role to play in these illegalities/discrepancies, a Constitutional Authority like KPSC has to conduct itself in a fair and reasonable manner. That is how the KPSC undertook this exercise and it cannot be found fault with. This Court having monitored this case, which is the cause for revision of the selected list, cannot be silent spectator and gloss over the matter. The candidates, who had merit and who were denied an opportunity to participate in the personality test are now permitted to participate in the selection process. Persons, who did not have the requisite merit were permitted to participate in the selection process, which is illegal. Therefore the said revised list is to be upheld and given effect to. Merely because years have elapsed is not a reason for not upholding the revised list. The law of adverse possession is not attracted to service matters. The petitioners are agitating the matter in different forum. The appointments made is always subject to the result of the pending proceedings. Therefore the contention that delay and laches stares on the face and the writ petition is liable to be dismissed on that ground, lacks merit and accordingly rejected.

201. Though the successful parties were not parties to the earlier proceedings, after the preparation of the revised list and its web-hosting, all of them are added as parties and all of them are now represented and they have been heard. It is only when this Court directs the implementation of the revised list, successful candidates would be hurt. That is why they have been heard. Therefore the principles of natural justice is complied with. The KPSC in their affidavit has clearly set out the procedure that is followed in the process of moderation/scaling. It is also in accordance with the direction issued by the High Court in its order by way of illustration. The said affidavit is made available to all the respondents. No one has pointed out any error or mistake in the process.

202. Accordingly, we do not find any substance in the contention of the learned Senior Counsel. The revised selection list of the post of gazetted officers prepared, of 1998 batch is valid and consequently, it has to be given effect to.

POINT No. 3 - VALUATION OF MORE THAN 10% OF THE ANSWER SCRIPT

203. Sri Vikram Phadke, learned Counsel for the petitioners contended that in the earlier proceedings, this Court had clearly set out how moderation/scaling is to be done in respect of 18 subjects. It is in pursuance of the said direction in the said proceedings, the marks given by head examiner and chief examiner were all set aside and a direction was issued to take 5% of the top level and another 5% random of the answer scripts and not less than 10% for total answer scripts for moderation. KPSC has conducted the moderation of more than 10% but they have not taken into consideration the marks secured in the said moderation of all the papers, so revalued. They have confined only to 10% which is a patent illegality and violation of the direction issued by this Court and confirmed by the Hon'ble Supreme Court. Infact, in the Supreme Court judgment, it is expressly stated that minimum is 10% and it is open for them to value more than 10% of those revalued paper and marks taken into consideration. Therefore, direction has to be issued with regard to percentage of papers above 10% which is excluded from moderation by the KPSC in preparing the list.

204. Sri P.S. Rajagopal, learned Counsel for the KPSC contended that 91 answer scripts were in excess of 10% and therefore they are not taken into consideration. Admittedly, the same was taken into consideration. The explanation offered is, this 91 answer scripts is in excess of 10% prescribed and therefore, KPSC was not bound to take the third valuation marks. In these 91 papers, for two students, none of the marks secured by them in the third valuation is given. The reason is, i.e., scaling of marks and that explanation by the KPSC appears to be correct.

205. In the order of the High Court dated 11th October, 2002 in W.P. No. 12548-589/2002 at para 35, this Court observed as under;

"The large variation in the figures earlier furnished and subsequently modified, as to the answer scripts that were moderated raises a doubt about the actual number of answer scripts reviewed by Head Examiners and Chief Examiners. Be that as it may. In spite of the above, moderation was restricted only to the answer scripts which were reviewed by the Head/Chief Examiners and no effort was made to adopt the scaling technique of moderation by applying an upward or downward revision to all the answer scripts evaluated by the respective examiners. Further, in regard to most of those subjects the random preview was not done to the extent suggested in the guidelines (5% of top level answer scripts and over all random review of 10%). No minutes or record has also been maintained to show whether moderation was done by the Head Examiners/Chief Examiners in the manner required by the guidelines. They (the answer scripts in the above subjects), therefore require proper review. KPSC having realized the inadequacies/irregularities has now agreed to do the moderation by applying scaling Technique (as stated its memo dated 27-3-2002 filed on 22-7-2002)."

206. The said order has been confirmed by the Apex Court and the relevant observation of the Supreme Court in this regard is contained at page 39 as under:

"The submission that the guidelines earlier provided only for a random review to the extent of 5 to 10% which has now been increased to 20%, is based on a factually wrong assumption. The High Court in paragraph 35 of its judgment has noticed that the random review prescribed under the guidelines was to be done in respect of 5% of top level answer scripts and 10% over all random review. Even the memo filed by the Karnataka Public Service Commission and accepted by the High Court assured that whenever random review done by the Head Examiner was less than 10% of the answer scripts evaluated by any examiner in any subject, the shortfall would be made up examiner-wise and subject-wise by random review of answer scripts to the extent of shortfall. While doing so it will be ensured that random sampling was not be less than 5% of the top level answer scripts. We have therefore, no doubt that the direction of the High Court has not deviated from the guidelines. Moreover, 5% or 10% as the case may be is the minimum required percentage of random review. It can always be more than the minimum prescribed."

207. As per the order of the High Court in W.P. Nos. 12549-589/2002, for the purpose of moderation, answer scripts had to be picked in the following manner:

"(a) 10% of the answer scripts in the subjects subjected to moderation had to be picked up.

(b) After this 10%, 5% of the answer scripts were to be the top level answer scripts and the rest of the 5% is to be picked up randomly."

208. The report of the Committee constituted by the High Court discloses that in many cases, the top 5% of the answer scripts were not taken. In fact in the report, a table showing the top 5% of the answer scripts not picked up for moderation is clearly set out. Table-A4 of the report of the Fact Finding Committee sets out cases where marks of Third Valuation not taken as final marks with regard to the selected candidates mentioned therein and according to the petitioner thus selected candidates are benefited by this lapse. In Table-A5, they have set out the instances wherein although the average variation is not more than plus or minus twenty, the marks awarded by the examiner was not retained, but marks, which would benefit the candidate was considered as final marks. Therefore, it is contended that the KPSC has not complied with the order of this Court, even in this aspect of moderation, resulting in tilting of the average variation and thereby tilting of total marks which has vitiated the process.

209. The KPSC member, though did not dispute the figures in the said tabulated statement has observed that in case of some candidates, less marks have been taken into consideration and in some cases, more marks have been taken into consideration. The difference is marginal.

210. From the aforesaid material it is clear that the order dated 11.10.2002 in W.P. No. 12548-589/2002 at paragraph 35, directed for a random review to the extent of 10%, i.e., 5% top level answer scripts and over all random review of 10%. This is the minimum the KPSC was expected to do. The Apex Court while confirming this order of the High Court held that 5% or 10% as the case may be is the minimum required percentage of random review. It can always be more than the minimum prescribed.

211. Now, it is not in dispute that more than 10% prescribed answer scripts have been subjected to moderation. In all, it amounts to 91 papers. The petitioners rely on the report of the Committee formed by the High Court pointing out how the marks secured in the third valuation in respect of these 91 papers has not been given effect to. KPSC admits the said fact. Their contention is that they could not have reviewed more than 10% of the answer scripts and therefore these 91 answer scripts which is above 10% prescribed is not given effect to. Once random review is ordered for, review is conducted and there is large scale discrepancy, the KPSC was bound to comply with the directions issued by the High Court as affirmed by the Supreme Court, even in respect of these 91 papers. Their failure to do so is illegal and contrary to the directions issued by the Apex Court. They ought to have given effect to the marks secured in the third valuation and found out whether it has any bearing on the final list prepared by them.

212. Under these circumstances, we are of the view that the KPSC has not taken into consideration the marks secured in 3rd valuation in respect of these 91 answer scripts and have not given effect to the order of the High Court to the same in the preparation of the merit list. It is pertinent to point out at this stage that, the Court summoned all these 91 answer scripts. It was kept in the open Court for inspection by the learned Counsel appearing for the parties as well as parties by themselves and it is only after giving such an opportunity, when nobody pointed out any illegality or irregularity in the said valuation, we have proceeded to pass this order. Even now, if there is any irregularity or illegality in any individual case and if by giving effect to the third valuation, if their position is going to be affected, they are at liberty to approach the Karnataka Administrative Tribunal for redressal of their grievances.

213. In that view of the matter, we direct the KPSC to take into consideration the marks secured in third valuation in respect of these 91 answer scripts, give effect to the same in terms of the High Court order within two months from the date of receipt of the copy of this order.

POINT No. 4 - DESTRUCTION OF ANSWER SCRIPTS IN 1999 BATCH

214. The selection of 1999 batch was challenged firstly, on the ground that KPSC has not made known the basis for evaluation. They have not prepared any model answer scripts so that the evaluators would look into the same and bring in some uniformity in the matter of evaluation. On the contrary there is total arbitrariness in the process of evaluation. In fact, in some cases, second valuation and third valuation is done. In respect of some other papers only one valuation is done. Therefore, the same set of rules prescribed by the KPSC is not followed in evaluating these answer scripts. The system of introducing second and third valuation is arbitrary. In fact, the same also has been done on selective basis and, therefore, the entire process of valuation is without any basis, arbitrary and contrary to the process evolved by the KPSC itself. On 9.7.2005 when these selection of 1999 batch was under challenge before the Tribunal, an interim order was passed staying the selection process. However, an application was filed by the KPSC for permission to publish a provisional list which was granted on 27.9.2005. Subsequently, on 25.10.2005 KPSC was permitted to publish the list subject to the result of the application. Therefore, when the selection process was under challenge it is by virtue of the interim orders granted, provisional list and final list was published, the KPSC could not have destroyed the answer scripts. It is done with a mala fide intention. Therefore, adverse inference is to be drawn.

215. The learned counsel for the petitioner Sri Vikram Phadke relied on the following judgments in support of his contentions:

216. In the case of KRISHAN YADAV v. STATE OF HARYANA reported in MANU/SC/0456/1994 : (1994) 4 SCC 165, held as under:--

"It is somewhat surprising the High Court should have taken the path of least Resistance stating, in view of the destruction of records, that it was helpless. It should have helped itself Law is not that powerless.

20. In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as "fraud unravels everything". To put it in other words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors.

21. The effect of setting aside the selection would mean the appointments held by these 96 candidates (including the respondents) will have no right to go to the office. Normally speaking, we should require them to disgorge the benefit of these illgotten gains. That means they will have to repay the entire salary and perks which they have received from the said office. But, here we show a streak of sympathy. For more than 4 years they were enjoying the benefit of "office". The proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay."

217. In the case of PRITPAL SINGH v. STATE OF HARYANA AND OTHERS reported in MANU/SC/0089/1995 : (1994) 5 SCC 695, the Supreme Court held as under:--

11. As aforestated, the answer papers of the written examinations were destroyed even before the results of the selection had been declared. The resolution which has been quoted above states that the Board had decided to destroy the answer papers as there was no space to keep them in the Board's office. There was a shortage of space because invitations for applications for various posts had been issued and space was badly needed for keeping the same. In reply to our query, the learned Solicitor General fairly stated that there was no such shortage of space. In any event, what is noteworthy about the resolution is its last sentence, which we have emphasised. So great was the haste to destroy the answer papers that the destruction was already complete when the resolution was passed. The shortage of space could not have been so acutely felt so suddenly and the explanation contained in the resolution does not explain or justify the tearing hurry. The explanation is, therefore, suspect.

12. The answer papers having been destroyed, it becomes impossible to ascertain what marks each candidate had secured from the examiners upon the answer papers themselves. Ordinarily, the examiners would have themselves tabulated the marks given by them against the serial numbers or names of the candidates whose answer papers they had examined. No such tabulation has been produced by the Board. There were four written papers. The Board would, in any event, have had to tabulate the marks obtained by each candidate in each of the four papers and aggregate the same for the purposes of ascertaining which of the candidates had obtained the qualifying marks or more. No such tabulation has been produced by the Board. The resolution of the Board authorising payment to the examiners shows that there were 13 of them. There were four written papers. In each subject, therefore, there were more than one examiner and the answer papers of the candidates were distributed amongst them. Ordinarily, there would be a moderation of the marks given by two or more examiners in the same subject so as to ensure that one had not been too strict and other too lenient. No papers in this behalf have been produced by the Board.

13. Much paper pertaining to the physical statistics of the candidates declared to be successful at the written examination has been preserved by the Board and produced. That it has been preserved but no other documentation is noteworthy; a candidate's height would remain ascertainable so long as he was alive.

14. From the record produced by the Board it appears that very large sheets of paper with the names of the candidates and their qualifications, etc., typed thereon were placed before the members of the Board who interviewed them. Upon these sheets of paper there are large blanks, in that no notation has been made with regard to many candidates one after the other in serial order. Such notations as there are in pencil and they do not always indicate how the candidates had fared. Along with these very large sheets of paper there is a small strip of paper relating to the only candidate who, for some reason, was interviewed on 3-9-1989. This strip of paper shows the final assessment of the candidate at the interview. There is no corresponding tabulation produced in respect of the candidates who appeared on the earlier dates of interviews. In other words, there is no tabulation of the final marks awarded to these candidates at the interview.

19. It is in the public interest that members of the police force should be selected objectively and fairly. The factors that we have enumerated above satisfy us that the selection made by the Board was not objective and fair. It is, therefore, in the public interest that the selections and the appointments made consequent thereon be quashed forthwith.

20. We appreciate that it may be that there are among those selected some who deserved selection and who will, consequently, suffer as a result of this order. There is, regrettably, considering the state of the selection records, no way in which such men can be identified. The public interest outweighs their interest. The directions that we shall now give shall enable them to compete once again with those who had sought selection with little or no disadvantages a result of the years that have passed.

21. The appeals are allowed. The orders of the Division Benches under appeal and the judgment and order of the learned Single Judge dismissing the writ petitions are set aside. The writ petitions are made absolute in the following terms: The selections made by the Board of Sub- Inspectors of Police consequent upon the advertisement dated 21-1-1988, as also the appointments made by the State of Haryana pursuant thereto are quashed.

22. A fresh selection shall be made by the Board for the 98 posts of Sub Inspectors of Police for which the Board had at the relevant time received requisitions from the State Government. All candidates who had applied pursuant to the advertisement dated 21-1-1988, and who were found eligible shall be entitled to appear for the written examinations, the total marks whereof shall be 200. Those who are successful shall then appear for a physical test. Having regard to the fact that the candidates are now around the age of 30, the Inspector General of Police of the State of Haryana or an officer of equivalent rank shall, having regard to this age, prescribe appropriate physical requirements. Those candidates who are found to possess these physical requirements shall be called for interview, the marks whereof shall be 25. Candidates who are successful at the interview shall be required to submit to physical tests, namely, two races and two jumps, the particulars of which shall also be prescribed by the Inspector General of Police or equivalent authority having regard to the age aforesaid."

218. Again the Apex Court in the case of POONAM RANI ALIAS POONAM v. STATE OF HARYANA AND ANOTHER reported in MANU/SC/0372/2012 : (2012) 6 SCC 596 held as under:--

"18. The affidavit filed by the Secretary of the Commission before this Court clearly shows that within few days of declaration of the result of the selection, the officers of the Commission destroyed the answer sheets of the written examination held in June, 2008. This was done in blatant violation of Resolution dated 1.10.1994, in terms of which the answer sheets could be destroyed after three months from the date of declaration of the result of the selection. The statement contained in paragraph 12 of application dated 14.3.2012 filed on behalf of the Commission is reflective of the casualness with which the officers of the Commission have treated the issue of destruction of the most important record, i.e., the answer sheets of the candidates which constituted foundation of the final selection.

23. In the result, the appeal is allowed and the impugned judgment as also the order passed by the learned Single Judge are set aside. The Commission is directed to hold fresh written test and interview for considering the candidature of the appellant and other unsuccessful candidates after giving them due intimation about the date, time and place of the examination and interview. This exercise should be completed within a period of four months from the date of receipt/production of this order. The candidates who are selected on the basis of the exercise undertaken pursuant to this direction shall become entitled to be appointed against the vacancies which may be available on the date of finalisation of the selection. The parties are left to bear their own costs."

219. He therefore contended that this conduct of the KPSC should be sufficient to set aside the entire selection process and order for re-examination.

220. In Krishan Yadav's case, the selection was made without holding interview; they were ghost interviews; there was tampering of the final records and forgery and fabrication of documents. It was fake. It is in that context when the records were destroyed, the Apex Court held that when the entire selection is stinking, conceived in fraud and delivered in deceit, the entire selection is liable to be set-aside. In Pritpal Singh's case, the answer papers of the written examinations were destroyed even before the results of the selection had been declared. In Poonam Rani's case the answer sheets of the written examination were destroyed in violation of the resolution dated 01.10.1984 in terms of which, the answer sheets could be destroyed after three months from the date of declaration of the result of the election.

221. The said decisions have no application to the facts of this case because it is not in dispute that the KPSC has destroyed the answer scripts. It was done after expiry of six months period stipulated under the Rules. In respect of matters which are pending in the Court, in terms of the Rules, those answer scripts are preserved. It is also not in dispute that number of applications are pending before the Administrative Tribunal challenging the selection of candidates in the 1999 batch. The KPSC could have preserved these answer scripts in view of the aforesaid litigation. But they have chosen to destroy the same. However, the evaluation of the answer scripts itself was not under challenge. In the absence of any material placed on record to show that this is done deliberately with a malafide intention to benefit a particular number of candidates, the case of malafides remains unsubstantiated. Therefore, in the facts of this case, we are satisfied that on that ground it would not be proper for us to set aside the entire selection of 1999 batch, as candidates who are selected are in no way responsible for such destruction. Similarly, there is no substance in the contention that model answer scripts were not prepared. So also the allegation that the system of introducing second and third valuation is arbitrary. There is no material to substantiate the said contentions. Accordingly, we reject the same. Therefore, we do not find any merit in the said contention.

POINT No. 5 - PUBLIC INTEREST LITIGATION

222. Sri P.S. Rajgopal, learned Senior Counsel appearing for the KPSC contended that these writ petitions purporting to be in the nature of Public Interest Litigation are not maintainable for the following reasons:

"a) It is well settled law that no Public Interest Litigation is maintainable in service matters;

b) The pleadings in the writ petitions disclose that the petitioners are trying to expose their individual grievances and not grievances of the public;

c) If the writ petition is filed in personal interest, at a later stage, it cannot be converted into a Public Interest Litigation. Personal Interest and Public Interest cannot co-exist; and lastly d) The present writ petition is not a class action. A number of candidates who are unsuccessful in the selection process have brought this writ petition seeking for annulment of the selection. Therefore, it is not a public interest litigation. It is purely academic in nature and the Court should not embark upon such exercises.

e) Though an order is passed for investigation, the Government accepted the same, entrusted the investigation to CIB and the Court passed an order appointing a Fact Finding Committee to look into the irregularities in selection process.

f) The petitioners' application before the Karnataka Administrative Tribunal is still pending and the questions raised in these writ petitions are also raised in the said proceedings and this Court has no jurisdiction to entertain these writ petitions when the application filed by the applicants are yet to be decided by the Tribunal and there cannot be any parallel proceedings regarding the same subject matter and the Tribunal being the Court of First Instance has ample power to decide all these questions."

223. Though KPSC was present in Court, it was not heard. Writ Petition is yet to be admitted. The limited role expected by the KPSC is to provide all records and therefore, he contends that now that the matter is being heard finally, it is open to the KPSC to point out that the very writ petition itself is not maintainable and the order passed is without hearing it, which is against the principles of natural justice and it does not bind them to any extent whatsoever and merely because it is not challenged, that would create no interest in favour of the petitioners or adversely affect the interest of the KPSC. In support of his contentions, he relied upon several judgments of the Apex Court, in particularly, judgment of the Constitution Bench of the Apex Court in the case of A.R. Antulay v. R.S. Nayak and Another reported in MANU/SC/0002/1988 : 1988(2) SCC 602.

224. The learned counsel appearing for the other respondents adopted the said submissions and contended that this writ petition is not maintainable.

225. Sri Vikram Phadke, learned counsel for the petitioner contended that a private interest litigation can be converted into a public interest litigation, if there is a necessity to enquire into the State of Affairs of the subject 'litigation' in the interest of justice. In the instant case, the petitioners have made it very clear that they are not seeking any relief to them personally, though they had initiated proceedings earlier, for such personal relief in KAT. In this writ petition, they are challenging the process of selection followed by the KPSC, which is unconstitutional. They are challenging in this writ petition the moderation and scaling done in respect of the evaluation of answer scripts, which is arbitrary and again offensive of Article 14 of the Constitution. Therefore, it is not a private interest litigation, but a public interest litigation.

226. Before we proceed to answer this question, it is necessary to know the meaning of a public interest litigation.

Definition of Public Interest Litigation:

227. Public Interest Litigation has been defined in the Blacks Law Dictionary (6th Edition) as under:--

"Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government..."

228. Advanced Law Lexicon has defined 'Public Interest Litigation' as under:--

"The expression TIL' means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community has pecuniary interest or some interest by which their legal rights or liabilities are affected."

229. The Council for Public Interest Law set up by the Ford Foundation in USA defined "public interest litigation" in its report of Public Interest Law, USA, 1976 as follows:

"10.........Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others." (M/s. Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Ors. - MANU/SC/8219/2007 : AIR 2008 SC 913, para 19)."

230. The expression TIL' means a legal action initiated in a Court of law for the enforcement of public interest. Public interest litigation is part of the process of participative justice. It is an interest shared by citizens generally in affairs of local, State or National Government. The probity in governance is a sine qua non for an efficient system of administration and for the development of the country and an important requirement for ensuring probity in governance is the absence of corruption. It is trite that the holders of public offices are entrusted with certain power to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. The judiciary can step in where it finds the actions on the part of the Legislature or the Executive to be illegal or unconstitutional. It is the bounden duty and obligation of the Courts to encourage genuine bona fide PIL petitions and pass directions and orders in the public interest, which are in consonance with the Constitution and the Laws. The technique of public interest litigation serves to provide an effective remedy to enforce these group-rights and interests.

231. Public interest litigation is a weapon, which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. The Court must be careful to see that a body of persons or a member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration.

232. Again, the relief to be granted looks to the future and is, generally, corrective rather than compensatory which, sometimes, it also is. The court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organization of the proceedings, moulding of the relief and -this is important - also supervising the implementation thereof.

233. The main ground urged is that no public interest litigation is maintainable in respect of service matters. In support of that contention, reliance is placed on the judgment of the Apex Court in the case of DR. DURYODHAN SAHU AND OTHERS v. JITENDRA KUMAR MISHRA AND OTHERS reported in MANU/SC/0541/1998 : (1998) 7 SCC 273 in which, the Apex Court dealing with the question whether a Tribunal constituted under the Administrative Tribunals Act, 1985 could entertain a public interest litigation has held as under:

"18. The constitution of Administrative Tribunals was necessitated because of the large pendency of cases relating to service matters in various courts in the country. It was expected that the setting up of Administrative Tribunals to deal exclusively in service matters would go a long way in not only reducing the burden of the Courts but also provide to the persons covered by the Tribunals speedy relief in respect of their grievances. The basic idea as evident from the various provisions of the Act is that the Tribunal should quickly redress the grievances in relation to service matters. The definition of 'service matters' found in Section 3(q) shows that in relation to a person the expression means all service matters relating to the conditions of his service. The significance of the word 'his' cannot be ignored. Section 3(b) defines the word 'application' as an application made under Section 19. The latter Section refers to 'person aggrieved'. In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the word 'order' has been defined in the explanation to sub-section (1) of Section 19 so that all matters referred to in Section 3(q) as service matters could be brought before the Tribunal. If in that context, Sections 14 and 15 are read, there is no doubt that a total stranger to the service concerned cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated.

19. Our attention has been drawn to a judgment of the Orissa Administrative Tribunal in Smt. Amitarani Khuntia v. State of Orissa. The Tribunal after considering the provisions of the Act held that a private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service matter is not entitled to approach the Tribunal. The following passage in the judgment is relevant:

"....A reading of the aforesaid provisions would mean that an application for redressal of grievances could be filed only by a 'person aggrieved' within the meaning of the Act.

Tribunals are constituted under Article 323-A of the Constitution of India. The above Article empowers the Parliament to enact law providing for adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government and such law shall specify the jurisdiction, powers and authority which may be exercised by each of the said Tribunals. Thus, it follows that Administrative Tribunals are constituted for adjudication or trial of the disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts. Its jurisdiction and powers have been well defined in the Act. It does not enjoy any plenary power."

We agree with the above reasoning.

21. In the result, we answer the first question in the negative and hold that the Administrative Tribunal constituted under the Act cannot entertain a public interest litigation at the instance of a total stranger."

234. The Apex Court in the case of B. SRINIVASA REDDY v. KARNATAKA URBAN WATER SUPPLY & DRAINAGE BOARD EMPLOYEES ASSOCIATION reported in MANU/SC/8454/2006 : (2006) 11 SCC 731 (I) has held as under:

"51. It is settled law by a catena of decisions that Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain v. Union of India, was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, it may be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person that is the non-appointee to assail the legality or correctness of the action and that third party has no locus standi to canvass the legality or correctness of the action. Further, it was declared that only public law declaration would only be made at the behest of public-spirited person coming before the Court as a petitioner having regard to the fact that the neither respondent Nos. 1 and 2 were or could have been candidates for the post of Managing Director of the Board and the High Court could not have gone beyond the limits of Quo Warranto so very well delineated by a catena of decisions of this Court and applied the test which could not have been applied even in a certiorari proceedings brought before the Court by an aggrieved party who was a candidate for the post."

235. The Apex Court in the case of DATTARAJ NATHUJI THAWARE v. STATE OF MAHARASHTRA & OTHERS reported in MANU/SC/1060/2004 : (2005) 1 SCC 590 held as under:

"16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, this Court held that in service matters PILs should not be entertained, the inflow of so called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Apart from the sinister manner, if any, of getting such copies, the real brain or force behind such cases would get exposed to find out the truth and motive behind the petition. Whenever such frivolous pleas, as noted, are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts."

236. The Apex Court in the case of HARIBANSH LAL v. SAHODAR PRASAD MAHTO reported in MANU/SC/0654/2010 : (2010) 9 SCC 655 has held as under:

"11. About maintainability of the Public Interest Litigation in service matters except for a writ of quo warranto, there are series of decisions of this Court laying down the principles to be followed. It is not seriously contended that the matter in issue is not a service matter. In fact, such objection was not raised and agitated before the High Court. Even otherwise, in view of the fact that the appellant herein was initially appointed and served in the State Electricity Board as a Member in terms of Section 5(4) and from among the Members of the Board, considering the qualifications specified in Sub-section (4), the State Government, after getting a report from the vigilance department, appointed him as Chairman of the Board, it is impermissible to claim that the issue cannot be agitated under service jurisprudence.

15. The above principles make it clear that except for a writ of quo warranto, Public Interest Litigation is not maintainable in service matters."

237. The Apex Court in the case of ASHOK KUMAR PANDEY v. STATE OF WEST BENGAL reported in MANU/SC/0936/2003 : (2004) 3 SCC 349 has held as under:

"16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr. Duryodhan Sahu v. Jitendra Kumar Mishra and Others (MANU/SC/0541/1998 : AIR 1999 SC 114), this Court held that in service matters PILs should not be entertained, the inflow of so called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts."

238. In the light of the aforesaid decisions, we have to find out what is a 'service matter'.

239. The word 'service matter' is defined under Section 3(q) in the Administrative Tribunals Act, 1985 as under:

"(q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respect--

(i) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure including confirmation, seniority, promotion, revision, premature retirement and superannuation;

(iii) leave of any kind;

(iv) disciplinary matters; or

(v) any other matter whatsoever;"

240. The persons, who have preferred this writ petition are persons, who participated in the recruitment process and who are unsuccessful. For individual reliefs, they have approached the Karnataka Appellate Tribunal and the matter is pending. What is adjudicated in this writ petition is, the illegality committed by the KPSC in the recruitment process and violations of the orders passed by this Court in the earlier proceedings. Therefore, it cannot be said that the petitioners are total strangers to these proceedings and that writ petition is not maintainable. Similarly, as the Karnataka Administrative Tribunal has no plenary power and a public interest litigation is not maintainable before it, these interested persons rightly have approached this Court and have invoked the plenary power of this Court under Article 226 of the Constitution of India. They are not seeking any personal relief. They are not seeking any relief in respect of matters relating to the conditions of their service.

241. The subject matter of this writ petition is the procedure followed by the KPSC in preparing the list of candidates to be admitted to the written examination and the list of candidates to be called for the personality test. It is not a matter relating to the conditions of service of the petitioners. Similarly the list of successful candidates prepared by K.P.S.C. taking into consideration the annulled marks by this Court in its order and subsequent preparation of list in terms of the court order after C.I.D. Report pointed out the said mistake also cannot be construed as matter relating to the conditions of service of the petitioner. Further, the refusal on the part of the K.P.S.C. to re do the same exercise in respect of 91 answer scripts on the ground that it falls over and above the 10% mark prescribed by the Court, also do not constitute a matter relating to the conditions of service of the petitioner. A Constitutional authority like the K.P.S.C, which has been entrusted with the function of recruitment to civil services and for civil posts, acts in an unconstitutional manner in conducting the examination for such appointments, which in turn affect the public interest, it is only through a public interest litigation the unconstitutional acts could be corrected. It is not a service matter as defined under the Act. It is not a matter relating to the conditions of service of the petitioners.

242. In Dr. Duryodhan Sahu's case, the question for consideration was, "whether a public interest litigation at the instance of a total stranger is maintainable before the Administrative Tribunal?". The Apex Court in the said case held that, a total stranger to the service cannot make an application before the Tribunal. Similarly, it held that the Tribunals are constituted for adjudication or trial of disputes and the complaints with respect to recruitment and conditions of service of persons appointed to Public services and posts. It does not enjoy any plenary power as enjoyed by the Constitutional Court under Article 226 or Article 32 of the Constitution. In B. Srinivasa Reddy's case what was challenged was the appointment of the post of Managing Director by the Labour Union. Therefore, it was held that they were not the candidates, who are competing for the said post and therefore, it was held that the writ petition is not maintainable. In the other cases referred to supra also, what was canvassed and what was challenged was a private interest and therefore, rightly, it was held that a public interest litigation is not maintainable. Therefore, the said judgments have no application to the facts of this case.

243. In the instant case, what is sought to be exposed is state of affairs of the K.P.S.C. a constitutional authority entrusted with the responsibility of conducting examination for appointment to the service of the State, where a systematic commission of fraud, deceit and unconstitutional procedure is followed. The orders passed by this Court earlier, which is confirmed by the Supreme Court is not given effect to. The same mistakes are committed in successive batch of selections. Therefore, the intervention of the Court has become necessary, in particular, when shocking disclosures are made by the Committee and C.I.D. which was asked to enquire into the matter.

244. The Three Man Committee report discloses that, the Chief Examiner, Prof. K.S. Shivanna moderated three papers each of Sri K. Rameswarappa, Sri B.S. Nagaraj, Smt. B.S. Triveni and Smt. B.S. Hemalatha who all belong to the same family and has increased the marks enormously. As a result Sri K. Rameswarappa got the first rank, Sri. B.S. Nagaraj got the second rank, Smt. B.S. Triveni got the fourth rank and Smt. B.S. Hemalatha was selected as Tahsildar, though they had not secured marks to enable them to get selected. Sri K. Rameswarappa and Smt. B.S. Triveni were given the posting of Assistant Commissioner and Sri. B.S. Nagaraj was selected as Assistant Commissioner of Commercial Taxes. The report also discloses this was possible because of the connivance between A.K. Monnappa, the Secretary of the KPSC with the Chief Examiner. In fact, Prof. K.S. Shivanna was the Research Guide for the Ph.D programme of Sri K. Rameswarappa. Further, the report discloses that, after the examination and evaluation was over, during September 2000 these three persons undertook a joint foreign tour. The evidence discloses A.K. Monnappa has parted with the code numbers of the candidates to Prof. K.S. Shivanna and he had also taken the help of Prof. K.S. Shivanna in substitution of some of the answer scripts of these four candidates in question. Accordingly, their candidature were cancelled, they were debarred from taking the future examination and criminal proceedings also was initiated.

245. On the contrary, the Supreme Court in the following judgments has explained the role of Constitutional Courts when public interest is involved.

246. Per contra, the Apex Court in the case of SHEELA BARSE v. UNION OF INDIA AND OTHERS reported in MANU/SC/0437/1988 : AIR 1988 SC 2211 dealing with the question of the rights of those who bring the action in lieu of others in public interest has held as under:

"6...... The technique of public interest litigation serves to provide an effective remedy to enforce these group-rights and interests. In order that these public-causes are brought before the Courts, the procedural techniques judicially innovated specially for the public interest action recognizes the concomitant need to lower the Locus standi thresholds so as to enable public-minded citizens or social-action-groups to act as conduits between these classes of persons of inherence (Sic) and the forum for the assertion and enforcement of their rights. The dispute is not comparable to one between private parties with the result there is no recognition of the status of a Dominus-Litis for any individual or group of individuals to determine the course or destination of the proceedings, except to the extent recognized and permitted by the Court. The "rights" of those who bring the action on behalf of the others must necessarily be subordinate to the "interests" of those for whose benefit the action is brought. The grievance in a public interest action, generally speaking, is about the content and conduct of governmental action in relation to the constitutional or statutory rights of segments of society and in certain circumstances the conduct of governmental policies. Necessarily, both the party structure and the matters in controversy are sprawling and amorphous, to be defined and adjusted or readjusted as the case may be, ad hoc, according as the exigencies of the emerging situations. The proceedings do not partake of predetermined private law litigation models but are exogenously determined by variations of the theme.

Again, the relief to be granted looks to the future and is, generally, corrective rather than compensatory which, sometimes, it also is. The pattern of relief need not necessarily be derived logically from the rights asserted or found. More importantly, the court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organization of the proceedings, moulding of the relief and - this is important - also supervising the implementation thereof. The Court is entitled to, and often does seek the assistance of expert-panels, Commissioners, Advisory-committees, Amici etc. This wide range of the responsibilities necessarily implies correspondingly higher measure of control over the parties, the subject-matter and the procedure. Indeed as the relief is positive and implies affirmative action the decisions are not "one-shot" determinations but have on-going implications. Remedy is both imposed, negotiated or quasi-negotiated.

Therefore, what corresponds to the stage of final disposal in an ordinary litigation is only a stage in the proceedings. There is no formal, declared termination of the proceedings. The lowering of locus standi threshold does not involve the recognition or creation of any vested rights on the part of those who initiate the proceedings analogous to Dominus Litis".

247. It is useful to refer to the passages in the case of SHIVAJIRAO NILANGEKAR PATIL v. DR. MAHESH MADHAV GOSAVI AND OTHERS reported in MANU/SC/0120/1986 : AIR 1987 SC 294:

"49........in a matter of this nature where public interest was involved namely, state of affairs in the University of Bombay in respect of a high degree in the medicine and in which the conduct of the Chief Minister was involved, public interest demanded that the High Court should have investigated the matter even though there might be some infirmities in the affidavit supporting the petition. He submitted that in this case that after the initiation of the proceeding, public interest was involved and the High Court was justified in entertaining the application.

51. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards is an equally grave menace as the pollution of the environment. Where such situations cry out the Courts should not and cannot remain mute and dumb."

248. Further, the Apex Court in the case of INDIAN BANK'S ASSOCIATION, BOMBAY AND OTHERS v. DEVKALA CONSULTANCY SERVICE AND OTHERS reported in MANU/SC/0355/2004 : 2004 (11) SCC 1 at paragraph 34 has held as under:

"34. Furthermore, even where a writ petition has been held to be not entertainable on the ground or otherwise of lack of locus, the court in larger public interest has entertained a writ petition. In an appropriate case, where the petitioner might have moved a court in his private interest and for redressal of his personal grievance, the court in furtherance of public interest may treat it as a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus, a private interest case can also be treated as public interest case."

249. The Apex Court in the case of NIRMAL SINGH KAHLON v. STATE OF PUNJAB AND OTHERS reported in MANU/SC/8189/2008 : 2009(1) SCC 441 has held as under:

"33. The High Court while entertaining the writ petition formed a prima facie opinion as regards the systematic commission of fraud. While dismissing the writ petition filed by the selected candidates, it initiated a suo motu public interest litigation. It was entitled to do so. The nature of jurisdiction exercised by the High Court, as is well known, in a private interest litigation and in a public interest litigation is different. Whereas in the latter it is inquisitorial in nature, in the former it is adversarial. In a public interest litigation, the court need not strictly follow the ordinary procedure. It may not only appoint committees but also issue directions upon the State from time to time.

36. In an ordinary case, we might have accepted the submission of Mr. Rao that the High Court should not direct Central Bureau of Investigation to investigate into a particular offence. The offence, however, is not ordinary in nature. It involved investigation into the allegations of commission of fraud in a systematic manner. It had a wide ramification as a former Minister of the State is said to be involved."

250. Having regard to the aforesaid unimpeachable evidence found, the irresistible conclusion is fraud has reached its crescendo. Deeds as foul as these inconceivable much less could be perpetrated. We are reminded of the words of Shakespeare:--

"Thus much of this, will make Black, white; foul, fair; wrong, right; Base, noble; Ha, you gods! why this?"

251. It may not be too much to draw an inference that all these were motivated by extraneous considerations. Each of this would attract the penal provisions of Indian Penal Code. They have been done with impunity. It is highly regrettable that the holders of public offices both big and small have forgotten that the offices entrusted to them are sacred trusts. Such offices are meant for use and not abuse. The whole examination and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode. It shocks our conscience to come across such a systematic fraud. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as fraud unravels everything.

252. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards is an equally grave menace as the pollution of the environment. Where such situations cry out the Courts should not and cannot remain mute and dumb. In an appropriate case, where the petitioner might have moved a court in his private interest and for redressal of his personal grievance, the court in furtherance of public interest may treat it as a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus, a private interest case can also be treated as public interest case.

253. Public law declaration would be made at the behest of public spirited person coming before the Court as a petitioner. If it involves investigation into the allegations of commission of fraud in a systematic manner, which has a wide ramification in selection to the post of Gazette probationers in the State of Karnataka, this Court cannot adopt the "hands off attitude. When the K.P.S.C. and State Government was convinced of fraud, criminal conspiracy, breach of trust and appointed three-man Commission K.K. Mishra Committee, Hota Committee and the Government ordered for C.I.D. enquiry, the dispute ceased to be a service matter, or of personal interest. It is a matter in which the public of Karnataka is virtually interested. Therefore this writ petition is maintainable as it is filed in public interest and no personal relief is sought for or granted.

254. In the light of the above discussion, it is clear that, in these proceedings we have gone into only the question of procedure followed by KPSC in preparing the list of eligible candidates to be admitted to the written examination and the list of candidates eligible to be called for personality test. In this regard no personal interest of any person is involved. The lapses pointed out is common to all the three selections of 1998, 1999 and 2004. Similarly, the other aspect which we have decided in this proceedings is that, the directions issued by the High Court in the earlier proceedings are not given effect to. In so far as taking into consideration annulled marks is concerned, KPSC has admitted the mistake and they have redone the merit list. We have also issued a direction to the KPSC to subject 91 answer scripts which are above 10%. Therefore, here also no personal interest is involved. It is also pertinent to note the orders passed in the writ petition as set out earlier, this Court virtually monitored the investigation and enquiry. It has passed orders from time to time which are complied by K.P.S.C, and the Government. Most of the material now on record is unearthed by such orders. The petitioners have no role to play in this regard. The Court is concerned about fair recruitment to the civil post in the State. A Constitutional authority entrusted with this solemn duty has failed in this regard. Therefore, in public interest, this writ petition was entertained and directions were issued from time to time. This being a Writ Petition filed in public interest, these issues which concern the public appointment to a public office are dealt with by us. Therefore, it is too late in the day for the respondents to contend that this writ petition as P.I.L., is not maintainable.

POINT No. 6 - PRIVATE INTEREST

255. All other disputes, which are raised by the petitioners and also the respondents with reference to individual candidates are concerned we decline to go into the same. The petitioners' applications before the Karnataka Administrative Tribunal is still pending. Therefore, all those disputes we are relegating to the Tribunal to be decided by the Tribunal. It is open to the petitioners either to seek appropriate amendments in the petition pending before the Tribunal and agitate their rights and seek redressal before the Karnataka Administrative Tribunal.

256. In so far as respondents who have sought to defend their individual cases are concerned, as we have not gone into those aspects and pronounced any orders and as all those matters are personal to those respondents, it is open to them to approach the Karnataka Administrative Tribunal for redressal of their grievances. If they are impleaded as parties by the petitioners, they could put forth their view point in those proceedings. Therefore, we make it clear, except the issues which we have decided in these proceedings, all other disputes are relegated to the Karnataka Administrative Tribunal for adjudication and decision if a request is made by any of the parties to this proceedings. As resolution of the disputes need the report submitted by the members of the High Court Committee. High Court office is directed to keep all those reports in safe custody and transmit the same to the Karnataka Administrative Tribunal, if any order is passed to that effect. That would meet the ends of justice.

POINT No. 7 - K.P.S.C

257. Chapter-II of Part-XIV of the Constitution of India deals with the Public Service Commissions. Article 315 of the Constitution of India deals with the establishment of Public Service Commissions for the Union as well as the States. Article 320 of the Constitution of India deals with the functions of the Public Service Commissions which reads as under:

"320. Functions of Public Service Commissions

(1) It shall be the duty of the Union and the State Public Service Commission to conduct examinations for appointments to the services of the Union and the services of the State respectively.

(2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more State so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.

(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted-

(a) on all matters relating to methods of recruitment to civil services and for civil posts;

(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;

(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;

(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;

(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advice on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor, of the State, may refer to them: Provided that the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.

(4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect maybe given to the provisions of Article 335.

(5) All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid."

258. The Apex Court in the case of STATE OF U.P. - VS- RAFIQUDDIN reported in AIR 1987 SUPP. SCC 401 while dealing with the functioning of Karnataka Public Service Commission has held as under:

"30.............The Commission is an independent expert body. It has to act in an independent manner in making the selection on the prescribed norms. It may consult the State Government and the High Court in prescribing the norms for judging the suitability of candidates if no norms are prescribed in the Rules. Once the Commission determines the norms and makes selection on the conclusion of the competitive examination and submits list of the suitable candidates to the Government it should not reopen the selection by lowering down the norms at the instance of the Government. If the practice of revising the result of competitive examination by changing norms is followed there will be confusion and the people will lose faith in the institution of Public Service Commission and the authenticity of selection......We are of opinion that the Commission should take firm stand in these matters in making the selection in accordance with the norms fixed by law or fixed by it in accordance with law uninfluenced by the directions of the State Government unsupported by the Rules."

259. Again the Apex Court in the case of INDER PARKASH GUPTA v. STATE OF J & K reported in MANU/SC/0409/2004 : (2004)6 SCC 786 has held as under:

"The Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the Constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Article 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of short-listing, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory rules. It can not take any action which per se would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of short-listing, the Commission cannot fix any kind of cut-off marks."

260. Yet in another judgment in the case of STATE OF PUNJAB AND OTHERS v. MANJIT SINGH AND OTHERS reported in MANU/SC/0724/2003 : (2003) 11 SCC 559, the Apex Court has held as under:

"11..........The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."

261. Therefore, the Public Service Commission is a body created under the Constitution. While going through the selection process, the Commission, however, must scrupulously follow the statutory rules operating in the field. They must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action which per se would be violative of the statutory rules or makes the same inoperative for all intent and purport. It has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. To discharge such constitutional and statutory duty, the Chairman and members of the Commission have to be men of high integrity, caliber and qualification. The examination board also should consists of highly qualified persons who have rich experience in conducting such examination in the past or trained in this behalf with proven record of honesty and integrity. The Commission for the purpose of valuation of answer scripts is expected to appoint reputed examiners who have track record of honesty and integrity along with efficiency and expertise in the subject in which they are called upon to be the valuers. A senior person with an unblemished record should be appointed as a Head Examiner. Therefore, the method of recruitment and conduct of examination for appointments to the services should be fool proof and conducted in a professional manner, so that there is no scope for any mischief at any stages of the recruitment process.

262. This case reveals how the KPSC is functioning in Karnataka in recent years contrary to the Constitution mandate, which is evident from the following reports:--

THREE MAN COMMITTEE:

263. The manner in which the valuation of written scripts is done is exposed by the Three Man Committee which was constituted to go into the illegalities and irregularities, in the conduct of evaluation of the papers in the written examination of the 1998 batch of Gazetted Probationers.

264. During the pendency of the Writ Petition before this Court in W.P. Nos. 12548-589/2002, realising the mistakes committed, the KPSC offered to redo the moderation and circulated its proposal to all the counsel. They also held an in-house enquiry by a Three Member Sub Committee in regard to the alleged irregularities. In pursuance of the said submission on 14.3.2002 in the Special Meeting of the Commission, they took a decision to constitute the Three Man Committee consisting of Sri R. Nagaraja, Mohd. Ali Khan and Sri D.N. Munikrishna and they were requested to hold an enquiry in respect of these three candidates and also in other aspects which would come to their notice and to submit a report. It was further made clear that they are at liberty to give a report pointing out any defects in the process of recruitment and to give suggestions so that there would be transparency in valuation of the answer scripts.

265. The terms of reference to the Sub-Committee was as under:--

"(1) To enquire into valuation of answer scripts of the three candidates viz., Sri Rameswarappa, Sri B.S. Nagaraj and Smt. B.S. Triveni;

(2) To enquire into any other irregularities/lapses disclosed during the enquiry; and

(3) To suggest measures to be taken by the Commission to eliminate the shortcomings/defects, if any, in the conduct of competitive examinations and valuation of answer scripts so as to ensure transparency and uniformity in the valuation."

266. The Committee enquired into the matter in detail and submitted a report. The relevant portion of the report reads as under:--

"In respect of Sri K. Rameswarappa, Sri B.S. Nagaraj, Smt. B.S. Triveni and Smt. B.S. Hemalath, the Chief Examiner Prof. K.S. Shivanna has moderated 3 papers each of these candidates and has increased the marks enormously. All these four persons who are closely related are selected with Sri K. Rameswarappa getting first rank, Sri B.S. Nagaraj getting second rank and Smt. B.S. Triveni getting fourth rank and Smt. B.S. Hemalath getting selected as Tahsildar that is Group-B post though not securing glaringly high rank as the other three. By virtue of their high ranks secured Sri K. Rameswarappa is selected as Assistant Commissioner, Sri B.S. Triveni is also selected as Assistant Commissioner and Sri B.S. Nagaraj is selected as Assistant Commissioner of Commercial Taxes. It appears Prof. K.S. Shivanna boosted the marks and selected more than one answer script of the very same candidate in cases other than these 4+6 candidates also only with a view to find a cover for his wrong doing in respect of these four + six candidates.

The evidence collected by the Committee shows that Prof. K.S. Shivanna, the Chief Examiner, Sri K. Rameswarappa, the beneficiary of the largesse not only for himself but also for his family members and Sri A.K. Monnappa, who was the Secretary of the Commissioner and without whose connivance it would not have been possible for the Chief Examiner to know the code numbers of the candidates, joined together as a well knit team and all the three have been part of criminal conspiracy.

Evidence collected by the Committee shows that Sri K Rameswarappa was visiting Sri A.K Monnappa, the Secretary of the Commission very frequently. The regularity of his visits were so frequent that he was not even required to send either a visiting card seeking permission to see Sri A.K. Monnappa or send a chit containing his name to the Secretary seeking the permission to see him. That apart, Prof. K.S. Shivanna was the research guide for the Ph.D programme of Sri K. Rameswarappa. After the examination and evaluation was over during September, 2000 these three persons have also undertaken a joint foreign tour. Sri. K. Rameswarappa has given E-mail ID of Prof. K.S. Shivanna as his E-mail address in the conference papers. The evidence collected by the Committee clearly establishes that Sri A.K. Monnappa has parted with the code numbers of the candidates to prof. K.S. Shivanna and he has also taken the help of Prof. Shivanna in substitution of some of the answer papers of these four candidates in question. The committee is of the view that the result of these four candidates requires to be annulled and appropriate action including criminal has to be initiated against the four candidates in question, Sri. A.K. Monnappa who was the then Secretary of the Commission and Prof A.K. Shivanna who was the Chief Examiner in question."

267. In the light of the above discussion, the findings of the Committee are:--

"(1) The results of Sri. K. Rameswarappa, Sri B.S. Nagaraj, Smt. B.S. Triveni and Smt. B.S. Hemalatha are vitiated by malpractices and, therefore, the committee recommends that their candidature be cancelled and they be debarred form taking any future examination conducted by the Commission after issuing them notices and following the procedure prescribed under the Rules of the Commission.

(2) In case of Smt. Leela M, Sri. Ponnappa, Sri. Naveen P.C. Sri. Subhash K.G. Sri. Pratap K.R. and Sri Cauveriappa are prima-facie committee could not establish a nexus between Dr. K.S. Shivanna, Secretary Sri. A.K. Monnappa and these 6 candidates but irresistible interference leads to show that they have indulged in malpractice (why and how Prof. Shivanna picks-up all the 4 coded answer scripts of these 6 candidates only, and awards enormous marks over and above the Examiners marks for scripts which obviously do not merit such marks). Therefore, the committee recommends that their candidature also may be cancelled after due process of enquiry.

(3) Sri. K. Rameswarappa is already a civil servant. Prof. K.S. Shivanna is working in the University of Mysore. Sri. A.K. Monnappa is an IAS Officer borne on the cadre of Karnataka State. Appropriate disciplinary action and criminal action be initiated against these three persons who have committed offences of criminal conspiracy, breach of trust, manipulation of records etc. in addition to taking criminal action against the other three candidates who are beneficiaries along sri. K. Rameswarappa. Commission may take up the matter of taking appropriate disciplinary proceedings against Sri K. Rameswarappa, Prof. K.S. Shivanna, and Sri. A.K. Monnappa with the respective disciplinary authorities viz., the Government and the University of Mysore. The Commission may forthwith blacklist Prof. K.S. Shivanna and disqualify him from being associated with any examination to be conducted by the Commission in future. Such Black listing may also be circulated to UPSC, other state PSCs and all other Indian universities.

(4) The Sub-Committee is satisfied that except in the 10 cases mentioned above there is no deliberate wrong or malafide intent or injustice caused in the valuation process including the moderation done by the Head Examiners/Chief Examiners.

(5) The Sub-Committee has submitted a separate report recommending reformations to be made in the entire examination and evaluation system to make it more foolproof with visible checks and balances."

268. Therefore, the Committee held that the results of these four candidates requires to be annulled and appropriate action including criminal has to be initiated against the four candidates in question. The Committee recommended that the candidature be cancelled and they be debarred from taking any examination conducted by the Commission. They were also directed to be blacklisted and disqualified from being associated with any examination to be conducted by the Commission in future. It was also directed the said blacklisting may also be circulated to UPSC and other State Public Service Commissions and all other Indian Universities.

K.K. MISHRA REPORT:

269. After coming to know of the gravity of the illegalities in the recruitment by the KPSC, the Government of Karnataka appointed Sri. K.K. Mishra, the Additional Chief Secretary and Principal Secretary to the Government, Commerce and Industries Department, to examine the report of the Three Man Committee constituted by the KPSC and hold a fresh enquiry and submit a report. On such entrustment of enquiry, Sri K.K. Mishra, after examining the report of the said Committee of the KPSC, was of the view that examining some witnesses, who are 31 in number, again for the purpose of present enquiry would not serve any useful purpose. Further since most of them are employees of the KPSC or various Colleges/Universities, he had no authority to secure their presence and examine them or record their statements. Therefore, in his view, it would suffice for the enquiry by him that if the findings of the KPSC Sub-Committee as regards the role of the officers concerned are reviewed and the evidence recorded/available against them is revalued, with a view to make recommendations to the Government for appropriate action. Thereafter, Sri K.K. Mishra took note of the recruitment process undertaken by the KPSC, the application filed by the aggrieved persons before the KAT., the orders passed by the KAT, then the orders passed by the High Court, setting aside the order passed by the KAT in part and directions issued in the said orders. Thereafter, he has reviewed the report of the Three Man Committee. He submitted a report, which is as under:

"(iv) Irregularities:--

17. On the basis of allegations made before the Tribunal/High Court and the enquiry conducted by the KPSC sub-committee, following irregularities have come to light.

a. Mutual copying by four candidates, namely Shri K. Rameshwarappa and three of his close relatives by obtaining adjacent seats in the same examination room.

b. Substitution of some answer books/pages of answer books in case of these candidates.

c. Awarding of unduly high marks by First Examiner.

d. Unduly high increase in marks by Head Examiner.

e. Undue and abnormal increase in marks by Chief Examiner at the time of moderation in General Studies and History papers in respect of these four and some other candidates.

f. Moderation by Prof. K.S. Shivanna in respect of General Studies and History Papers written in English medium, although he was an examiner for Kannada Medium only.

g. Picking out of three or four answer scripts of same candidates under random mode ratio, which shows that the secrecy of code numbers was compromised.

31. It is therefore evidence that the irregularities committed in regard to Main Examination were much larger and widespread than those identified by the sub committee which it appears is only the proverbial tip of the iceberg. Firstly, the irregularities were not confined to the moderation/review only, since the first examiners/valuators have also increased marks at least in case of two of the ten candidates debarred by the Commission. Secondly, if the moderation/review in as many as 19 subjects was improper and illegal, it is evident that the code numbers of a very large number of candidates had been leaked out. Although the ultimate responsibility for this large scale leakage will have to be borne by the then Secretary, KPSC, it will be too far fetched to argue that he himself was personally interested in all these cases or that he had personally leaked out the code numbers of all such candidates. The available evidence does not absolve him, but points to serious irregularities of much higher magnitude than what has been brought out by the report of the sub committee as the three men conspiracy. A more likely theory appears to be that code numbers of the answer scripts of a large number of candidates had been leaked out to the candidates. These candidates had then individual approached the valuators/Head examiners/Chief examiners for getting their marks increased.

32. Since the number of candidates whose code numbers appear to have been leaked out is quite large, it may not be very difficult through proper interrogation of the concerned candidates to ascertain the modus operendi as also the identify of the persons who had leaked the code numbers in mass.

Conclusion

33. After careful consideration of all the material made available to me, it is evident that a large number of irregularities have been committed in the conduct of Gazetted probationers (Group A and B) Main examination 1999. The report of the subcommittee has brought out only some of these irregularities. Some others are listed in the Proceedings of the Commission dated 18.1.2003 and yet some others have been brought out by the Hon'ble High Court in its order dated 11.10.2002. The three men conspiracy theory propounded by the subcommittee does not explain all the irregularities, a number of which were brought out subsequently in the judgment of Hon'ble High Court. Available information now points to irregularities in a very large number of cases and possible involvement of a very large number of persons associated with the examination.

34. Most of the irregularities committed are very serious and are criminal in nature. The sub committee has identified offences involving 'Manipulation of records, criminal conspiracy and criminal breach of trust" and has rightly suggested initiation of criminal proceedings in respect of persons responsible. Most of these offences appear cognizable. Under Section 44 of Code of Criminal Procedure, it is the duty and responsibility of every citizen to report the commission of serious offences to nearest magistrate or police. A failure to do so is an offence under Section 202 of the Indian Penal Code. Further in this case, KPSC has undertaken to take action on subcommittee's report in its submissions to the High Court. The Commission may, therefore be advised to list the offences committed and file a FIR before the Police at the earliest. KPSC may also be advised that whenever there is prima facie case as in case of Prof. K.S. Shivanna, Shri K.S. Bahat, Shri Veerabadraiah and Shri K. Vishwanath the concerned Universities may be asked to initiate simultaneous disciplinary proceedings against them. KPSC may also permanently debar them from any future work. While there is prima facie case against some like Prof. K.S. Shivanna, the role and responsibility of most others for the purpose of conducting Departmental Enquiries can be fixed only after detailed investigation, which can be conducted by professional experts.

35. Except in cases of valuators, the Head Examiners and the Chief Examiners, against whom direct evidence is available, any action to initiate disciplinary proceedings against other officers at this stage, without full investigation, may not serve much purpose, since the available evidence is sketchy and the persons really guilty may not have been identified. A comprehensive, impartial and early investigation would also help restore the faith of general public in the selection process for Government services, which has been seriously impaired by several alleged irregularities and illegalities. "It is therefore very necessary that, as regards Departmental Enquiries, the Government should refer the case to Hon'ble Lokayukta with a request to get all aspects of irregularities investigated, identify the persons responsible and suggest further necessary action.

36. Before parting with the report, it may be worthwhile to make some recommendations with regard to two matters relating to this examination. The first is regarding the process of coding of answer scripts. It appears that at the behest of Shri Harish Gowda, the present Secretary, the KPSC has become the first examination body in the country to devise a bar coding system for coding of answer scripts. The system has already been used for Excise Sub-Inspectors' examinations held in December 2002. It appears that the Bangalore University has also decided to introduce the bar coding system in their examinations to ensure strict confidentiality and prevent any external interference during the evaluation process. KPSC must ensure that the system is adopted in all their future examinations without any exception.

37. The Second recommendation relates to marks assigned for personality test and interview. For several selections, the number of marks for interview have been significantly reduced. But for gazetted probationers (Group A and Group B examination, marks for interview are still quite high being 200. In the list of successful candidates (since set aside and to be redone) out of first 100 candidates as many as 57 owe their high ranks to 195 marks out of 200 secured by them in the interview. Out of first 400 candidates as many as 205 have secured 195 marks out of 200. Considering that the difference between the highest and the lowest marks awarded for the interview is 120, the interview marks have played a predominant role in the selection process. This needs to be corrected, as has been done for other selections. It is therefore recommended that the marks awarded in the interview in these examinations may be considered only for qualifying purposes (as in case of English and Kannada papers) and may not be considered for deciding the merit. Till such time as rules are mended to this effect, KPSC be advised to associate members from a panel of eminent outside experts, well versed in personality assessment, for conducting interviews, as is the practice being followed by UPSC in case of All India Services Examinations. Only one or two members from KPSC may be included in each team of interviews."

270. As could be seen from the aforesaid report, Sri. K.K. Mishra has observed that the report of the subcommittee has brought out only some of the irregularities. Some others are listed in the proceedings of the Commission dated 18.01.2003 and yet some others have been brought out by the Hon'ble High Court in its order dated 11.10.2002. The three man conspiracy theory propounded by the subcommittee does not explain all the irregularities, a number of which were brought out subsequently in the judgment of the Hon'ble High Court. Available information now points to irregularities in a very large number of cases and possible involvement of a very large number of persons associated with the examination. Most of the irregularities committed are very serious and are criminal in nature. The subcommittee had identified the offences involving "manipulation of records, criminal conspiracy and criminal breach of trust". Most of these offences appears cognizable. Under Section 44 of the Code of Criminal Procedure it is the duty and responsibility of every citizen to report the Commission of serious offence to nearest Magistrate or Police. A failure to do so is an offence under Section 202 of the Indian Penal Code. A comprehensive, impartial and an early investigation would also help restore the faith of general public in the selection process for Government Service, which has been seriously impaired by several alleged irregularities and illegalities. He has observed insofar as marks assigned for personal test is concerned, for several selections, number of marks for interview have been significantly reduced. But for gazetted probationers examination, marks for interview are sill quite high being 200. In the list of successful candidates (since set aside and to be redone), out of first 100 candidates, as many as 57 owe their high ranks to 195 marks out of 200 secured by them in the interview. Out of first 400 candidates, as many as 205 have secured 195 marks out of 200. Considering that the difference between the highest and the lowest marks awarded in the interview is 120, the interview marks have played a predominate role in the selection process. This needs to be corrected as has been done for other selection.

271. After Sri. K.K. Mishra submitted his report to the Commission, a meeting was held by the Commission on 21.05.2003. The members of the Commission were of the view that the order dated 11.10.2002 passed by this Court was not followed in letter and spirit. There was lapses from the order in the following aspects:

"1. Random review method as per order of the Hon'ble High Court in respect of answer script, where there is various of plus or minus marks.

2. Instead of moderated Head/Chief Examiners, joint valuation was carried on.

3. Moderation of more than 50% of the answer spirit were picked up as against 10%.

4. After moderation of the answer script, only plus mark was given to their favorite candidates."

272. Four of the members of the Commission noted that the Secretary Sri. B.A. Harish Gowda who was made incharge by the High Court to monitor this evaluation has not discharged the duty of moderation of answer script as per the orders of the High Court. While picking up of the papers, the procedure laid down by the High Court was not followed. The Secretary has not followed the orders of the High Court in all aspects. The procedure adopted by the Secretary was not in accordance with law of the letter and spirit of order of the High Court instead of clarifying the matter and ensuring that the Secretary has followed the orders of the High court in his letter and spirit and course evaluation of the view of the - members who are present in the meeting observed that then Chairman Dr. H.N. Krishan has dodged the points raised. He has given clean chit to the Secretary and he has also admitted that the actual moderation of the answer script which has not placed on it. Bare reading of the minutes of the meeting held on the said date clearly shows that the then chairman was interested party.

C.I.D. REPORT

273. As no steps were taken by the Government in pursuance to the recommendation of K.K. Misra's Committee, the KPSC continued to commit the same mistake in the successive examinations conducted for the year 1999 and 2004. The petitioners preferred W.P. No. 11550/2008 for a direction to the Central Bureau of Investigation to thoroughly enquire into the whole selection process for the year 1998, 1999 and 2004 batches. When the said writ petition came for consideration on 16.10.2014 before the Division Bench of this Court presided by the Hon'ble Chief Justice, learned Principal Government Advocate stated that the Government will order to investigate in the matter through the CID. In fact, in the first instance, Mr. Ajith J. Gunjal was appointed by the Hon'ble Chief Justice to monitor the investigation. Subsequent to this, former Judge "Justice Mohammed Anwar" was appointed to monitor the investigation. After a detailed investigation, the CID submitted its report.

274. Sri. B.A. Padma Nayana, IPS, Deputy Inspector General of Police, CID was appointed as the Enquiry Officer for the years 1998-99 and 2004. After investigation, he submitted a report on 09.04.2012. It was placed on record. After referring to the facts set out above, the CIDs issued notices to all the selected candidates, the petitioners in the writ petitions and others to appear before the Investigating Officer to give their statements. Good number of witnesses turned up and gave their statements. Statements of key witnesses were also got recorded under Section 164 of Cr.P.C. through the jurisdictional Court.

275. The said report discloses that voluminous documents were seized from KPSC and other offices and were brought on PF (1-65). The houses of accused Dr. H.N. Krishna, the Chairman of the KPSC and Mrs. Asha Parveen were searched and a number of incriminating documents were seized from the residence of Dr. H.N. Krishna which included the list of candidates with their register numbers, photos, marks secured and calculation of marks noted in pencil. Apart from this, number of documents relating to movable and immovable properties were recovered from the residence of Dr. H.N. Krishna and these were handed over to Karnataka Lokayukta for taking necessary action as per the directions of the Hon'ble Monitoring Judge. Karnataka Lokayukta Police registered a case of amassment of properties disproportionate to known sources of income and investigating the same vide LAC No. 56/2011.

276. During the course of investigation, accused Dr. H.N. Krishna, former Chairman of KPSC was arrested, interrogated and remanded to judicial custody who was later released on bail by the Hon'ble High Court. Accused Smt. Asha Parveen, Smt. Salma Firdose who were candidates in 1998 selection were arrested and released on bail since anticipatory bail was granted to them by the Hon'ble High Court of Karnataka. Sri. M. Banakar, Sri. Narasimha and Sri. Gopi Krishna, all employees of KPSC were also arrested and remanded to judicial custody as they were found to have conspired with Dr. H.N. Krishna in commission of offences, which are considered in charge-sheet submitted to the jurisdictional 1st ACMM Court. The Sessions Court later released these accused persons on bail.

277. A detailed investigation has disclosed that:

"1. Accused Dr. H.N. Krishna is punishable for offences under Section 418, 465, 468, 471, 506 r/w 109, 120(b) IPC.

2. Accused Ms. Asha Parveen is punishable for offences under Section 465, 468, 471, 420, 120(b) IPC.

3. Accused Ms. Salma Firdose is punishable for offences under Section 465, 468, 471, 420 IPC.

4. Accused Sri. K. Narasimha is punishable for offences under Section 465, 471, 468 r/w 120(b) IPC.

5. Accused Sri. P. Gopal Krishna is punishable for offences under Section 465, 468, 471 r/w 120(b) IPC.

6. Accused Sri. M.B. Banakar is punishable for offences under Section 465, 468, 471 r/w 120(b) IPC."

278. In the said report, each of the allegations were considered separately. Some of the allegations were found to be without any basis but some allegations were found to be proved. In these writ petitions, we are only considered with those allegations, which are held to be proved. They are extracted as hereunder:

"3. Allegation - Misleading the Hon'ble Court resulting in grave detriment of meritorious Candidates:

It is alleged that in a memo dated 27.03.2002 filed by the KPSC before the Hon'ble Court, that "The total number of cases where the variation is plus or minus 20 or more has been identified as 661". KPSC south the moderation of answer scripts on the basis of this submission and thereby mislead the Hon'ble High Court that this was not a very large figure and that being so it would not entail any hardship to thousand of candidates who had taken up the examination.

Findings:

The KPSC in its Memo dated 27.03.2002, before the Hon'ble High Court in Writ Petition Nos. 12548-12589/2002 submits that "The total number of cases where the variation is plus or minus 20 or more has been identified as 661" but it is not clear in how many number of answer scripts the said number of variation were noticed. However, the Hon'ble High Court in their Order dated 11.10.2002 directed the KPSC to redo a fresh moderation in regard to the 18 optional thereafter in another order for two more general papers. Accordingly, KPSC carried out the moderation and scaling process. The petitioners have chosen the figure 661, which was submitted by KPSC to the Hon'ble Court in a different context.

It is also alleged by the petitioner's that as many as 404 candidates the marks were reduced to 'Zero'. This is because of the moderation and scaling of marks adopted by the KPSC as per the clarificatory orders dated 04.07.2003 by the Hon'ble High Court of Karnataka on IA-V filed by the KPSC in Writ Petition Nos. 12548 to 12589/2002.

Statement of Ms. Shoba Basavaraj, system Analyst was recorded in connection with moderation and scaling (Annexure-7).

Also Sri. Harish Gowda, IAS the then Secretary, KPSC and presently working as Secretary to Government, Food and Civil Supplies and Consumer Affairs, Department gave his written statement regarding moderation, scaling and other related matters (Annexures -8). The Hon'ble High Court of Karnataka has observed "Following the directions from the Hon'ble High Court and Hon'ble Supreme Court Moderation and scaling was done by KPSC with respect to the Gazetted probationer's examination 1998.

According to Mr. Harish Gowda, IAS and former secretary in his statement states that "answer scripts of 1998 Gazetted Probationers (Group A & B) Examination were picked for the revaluation as per the order of the Hon'ble High Court had extracted the suggestion made by the KPSC in its memo dated 27.03.2002, as follows:

"On the basis of random review of answer scripts done in respect of answer scripts evaluated by each examiner average variation shall be arrived at. Wherever the average variation is less than plus or minus 20 general review of the marks awarded need not be done. However, where the average difference is plus or minus 20 or more, the marks awarded by such examiner shall be increased or decreased by that average in respect of each of the answer scripts evaluated by that examiner. In case the average variation is less than plus or minus 20, but variation in respect of individual answer scripts is plus or minus 20 or more those answer scripts would be subjected to third valuation".

The Hon'ble Court had further directed that the entire process of moderation shall be done under the supervision of the Secretary of KPSC and that it is open to him to have the moderation done at a two-tier level (that is Head Examiner and Chief Examiner) or have it done at only one level (that is chief Examiner). He shall select and prepare a fresh panel of Head and/or Chief Examiners for this purpose. We decided to have the moderation done at one level, but in a better way.

In order to ensure that no malpractice was commuted or the weaknesses or handicaps of the examiners affected the valuation and to ensure uniformity of treatment to tall the scripts, as any increase or decrease in marks in one or two scripts by the Chief examiner would have affected the interests of the other candidates, I had got the revaluation carried out jointly by two examiners as in the case of Pre-University examination revaluation. The examiners were made to sit together, read the answers together and then discuss the merits and demerits of the answers and then jointly award the marks. This fact was placed before the Hon'ble High Court Karnataka in paragraph 8 of the application of the Commission dated 12.06.2003 (IA No. V), wherein clarification about the manner in which scaling had to be carried out had been sought. It is as follows:

"This Hon'ble Court had permitted the Secretary of the petitioner to have the moderation done at a two tier level or have it done at only one level, also allowing him to select and prepare a fresh panel of Head and/Or Chief Examiners for the purpose. The random review/moderation at two tier level was given up and the secretary has got it done at one level, but with a team of 2 lecturers/professors expect in two subjects i.e., Geology and Criminology, wherein it was found very difficult to procure very senior examiners to evaluate the answer scripts of those two subjects, which were got evaluated by single senior professors. The method of random scaling that was proposed by the Commission as per its Memo dated 27.03.2002 was found to be unworkable, leading to great injustice having detrimental effect on candidates"

Having considered the said application, the Hon'ble High Court in its order dated 04.07.2003 clarified the manner in which the moderation had to be carried out.

Every day morning, Sri. Arunachalam, Section Officer in charge of the strong room used to bring examiner wise computer printed lists showing the secret codes and marks scored in all the answer scripts evaluated by the examiners, in the descending order. Having placed the lists before me, he used to mention the number of scripts that should be selected for the few in the middle. Consciously we used to avoid ticking any scripts in the bottom, since they belonged to "non serious" candidates who scored very low marks. However, the answer scripts for the third valuation contemplated in the order of the Hon'ble High Court were selected on the basis of the subjects wise lists furnished by the computer programmers of the commission.

I have also been asked to explain how moderation was carried out in Chemistry, Law, Philosophy, Mechanical Engineering, Management, Electrical Engineering, Hindi and Urdu subjects, in violation of the order of the Hon'ble High Court. Revaluation and moderation has not been carried out in the said 8 subjects after the Hon'ble High Court annulled the tainted moderations in the 21 subjects. I have verified this fact with the officers of the Commission. To be doubly sure, the Senior Programmer has run a query on the system to find out any moderated marks and the result is in the negative. I have now produced the print out taken on the basis of the said query. Since those subjects are untouched, the marks awarded in the original valuation and moderation remains in the computer database as they were. Perhaps, someone has given a print out showing marks of the original valuation, while making the false claim.

"No illegality or violation of the orders of the Hon'ble High Court has been committed while implementing its orders in respect of revaluation, moderation and scaling"

Also the statement of Sri. Ramprasad, IAS, Commissioner Health and Family Welfare Department was recorded who succeeded Sri. Harish Gowda states as under:

"I was working as Secretary, K.P.S.C, from 12.08.2004 to 12.01.2007. Dr. H.N. Krishna was the Chairman of the commission during my tenure."

After Government gives the approval for Recruitment of Class I and II Gazetted probationers the Recruitment process will be initiated as per the Gazetted probationers Recruitment Rules 1997 which also includes issuing of notification calling for applications. The Notification prescribes the manner of submission of the application along with the necessary enclosures. This recruitment under the rules takes place in three stages i.e., preliminary examination, main examination and personality test.

The Secretary has the overall responsibility of holding the examinations both preliminary and main as per the procedures prescribed under the rules. The aspiring candidates should full fill the eligibility criteria as regards age, qualification, reservation etc., notified as in the notification. The list of eligible candidates to write the main examinations will be prepared based on their merit in the preliminary examination and reservation in the ration of 1:20. The Secretary supervises the overall conduct of main examination and also the subsequent evaluation of the answer scripts.

Based on the merit and reservation, a list of candidates eligible for personality test will be prepared in the ration of 1:5. Thereafter, the commission schedules personality test after constituting one or more committees for the purpose of conducting personality test.

The Candidates eligible and selected for personality test produce the original documents to the committee concerned for verification at the time of personality test. The personal staff of the members constituting the committee, verify the original documents and record their observations in the list as well as on the application. The committee concerned conducts the interview based on the information provided by the personal staff and also on the application of the candidate concerned. The committee after awarding the marks and making their observation on the documents produced, send the marks awarded in sealed cover to the confidential branch. Confidential branch in 'turn enters the marks in a marks sheet made available by the computer branch. Further, the confidential branch also cross verifies the mark in this manner the confidential branch submits the marks statement through the Secretary to the Chairman of the commission. After this statement is approved by the Chairman, the marks will be once again cross verified with the manuscript and then the marks statement will be published either on the same day or following day of the personality test.

As far as the other remarks of the Committee, the same will be sent tot the concerned section by the confidential branch. The concerned section will verify the observations with the original applications, are Section officer, the Asst. Secretary and the Deputy Secretary record their views on the file and through secretary the file will be submitted to the commission for final orders. The decision of the commission in this matter is final. When the file regarding the remarks of the committee is put up to me by the concerned branch in a file, the interview sheets (statement showing the particulars of candidates who are eligible for personality test) are not brought to my notice.

Specially in case of Smt. Asha Parveen S.M. (Reg. No. 113732) who was a candidate in 1998 examination was called for the Personality Test in G.M. Category on 28.12.2015 at 10-00 AM, the remarks of the committee was put up to me in a file, but the interview sheets were not part of that file. Therefore, the remarks passed by Chairman and the members was not in my knowledge.

As regards candidates Sri. Hanumantha Gowda (Reg. No. 104648) who appeared for 1998 selection also the interview sheet was not made available to me. Hence, I am not in a position to clarify the selection of this candidate in general merit category.

The Notification of 1998 selection clearly stipulates that a candidate claiming reservation under any reservation except SC, ST and category -I is required to enclose an attested copy of the caste certificate issued by the Tahsildar after the notification but before the last date for submission of the application.

When I took over as Secretary, most of work in respect of revaluation for moderation and scaling was over. During my tenure the Hon'ble Supreme Court confirmed the orders of the High Court as regards moderation and scaling. It was found that in some of the subjects the revaluation was much more than the prescribed 10% mandated by the Courts. I got the revaluation in respect of a few subjects wherein the percentage was less than 10% carried out strictly as per the procedure followed previously. In order to ensure that the picking of the scores as per the court orders is transparent, the selection of the papers was done randomly using a computer programmed on the basis of the formula prescribed by the Courts. The final merit list has been prepared for the personality test". His statement is enclosed (Annexure-9).

Findings:

While selecting the scripts for valuation a list of marks in the descending order was prepared. A perusal of records and the answer scripts show that KPSC has taken in to consideration the marks awarded by the Head/Chief Examiners at the time of scaling. Since the KPSC have taken the annulled marks (awarded by Head/Chief Examiner), it is violation of the directions issued by the Hon'ble High Court in Writ Petition Nos. 12548-12589/2002. This wrong step of the KPSC has resulted in titling of marks and ultimately results. It is serious violation of Hon'ble High Court Order and a serious lapse. The copy of the order passed by the Hon'ble High Court in Writ Petition Nos. 12548-12589/2002 is appended to this report as Annexure-10.

10. Allegation - Ratio Violation in calling for the Personality Test:

It is alleged that in the 1998 selection process, KPSC has violated the ratio in calling for the Personality Test. Though the total number of candidates to be called for the Personality Test and the number of candidates actually called for the Personality Test doesn't differ much, what is pertinent to note is that in respect of GM Category, the number called is abnormally low and in respect of 3A & 3B Categories is abnormally high, petitioner say that following table makes their point clear:

Findings:

KPSC has provided the category wise break-up, number of posts against each category and the number of candidates called for Personality Test as follows:

In accordance with the conditions contained in Schedule -II of the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997 the entire classification was done in accordance with Government order No.
(Annexure-13).

KPSC also clarifies that many of the candidates who had been considered for selection under GM quota, but not selected under that quota. At later stage they have been considered for the post under reserved categories. In that background the variations have appeared in the said lists. The Petitioners have not taken in to account the number of category candidates who moved in to general merit by virtue of their merits, and that is the reason they have alleged.

It is disclosed during the investigation that taking undue advantage of this provision Dr. H.N. Krishna, obtained letters from the candidates belonging to certain categories that they failed to produce the ORC and pushed them to GM to favour chosen category candidates and facilitated in their selection by manipulating the interview sheets with the help of his trustworthy staff without the knowledge of other members. This issue is considered in the charge sheet already submitted.

3. Allegation - Selection Against Notification:

It is alleged that in the 2004 selection process, there were 4 posts of District Marketing Officer. Two of which were reserved (One for Scheduled Caste and one for Category 2A). The other two were in GM (One for Female and one for Kannada Medium). The posts meant for scheduled Caste, Category 2A and GM - Female were filed by the respective candidates. However, the GM-Kannada medium post was filled by a 3A-Kannada Medium candidate (Sri. Sreenivasa Reddy, Reg. No. 144700, date of birth 04.04.1971). As on 17.12.2004 i.e., the last date for submitting the application, the said candidate was 33 years 8 months old.)

Findings:

Sri. Srinivasa Reddy who had claimed 3A-Kannada Medium category was selected against a post reserved for GM-Kannada medium category candidate. Though the said Sri. Srinivasa Reddy (Reg. No. 144700) has claimed selection under 3A-Kannada medium category, as he had scored high marks and fell within the GM Cut-off marks, he was selected under GM-Kannada Medium category.

The petitioners have alleged that a number of 3A category candidate (who have been given with 4% reservation) placed in the GM category on merit seems to be abnormal, when compared to the number of other reserved category candidates (who account for the rest of 46% reservation) who have been placed in GM category on merit. The number of 3A category candidates in the GM category on the basis of merit, is quite abnormal, in comparison with other reserved category candidates.

Findings:

No doubt that a candidate opting under caste category will be first considered under General Merit. In case candidate is not selected under the GM, he will be considered under the category in which he has applied. The perusal of the 3 lists of the candidates after the Personality test gives an impression that certain category candidates are given more weightage. Also it is observed that liberal marks are given to some candidates who had scored low marks in Written -Examination and low marks are given to the candidates who had scored high marks in the Written Examination.

4. Allegation -Tampering with Marks:

It is alleged and doubted by the petitioners that in the selection of the three patches that there was manipulation of marks of individual candidates in the Written Examination so as to favour the chosen candidates.

Findings:

The petitioners have not quoted any particular instance but the allegations are general in nature. The allegation seems to be unfounded, as this is not based on any reliable facts. In facts CID has procured all the answer scripts of 1998 and 2004 examination and perused them. Answer scripts of 1999 examination are nor preserved by the Commission since they are destroyed as per the their Rules."

HOTA COMMITTEE:

279. Against the backdrop of the aforesaid Writ Petitions filed before this Court and the order of the High Court dated 23.8.2011 directing the Deputy Inspector General of Police, CID, to conduct the investigation and when the said report was submitted, and action was not taken in terms of the report, the petitioners preferred these Writ Petitions. KPSC conducted competitive examination and personality test for 2011 batch of gazetted probationers. During the process of personality test, on the basis of the representation of one Dr. Mythri H.P.S., and also through the electronic media it came to the notice of the Government that the Commission was said to have committed large scale irregularities in conducting the main examination and viva voce. Therefore, the Government again directed the CID to conduct investigation and submit its report. The report is submitted. The report establishes the allegation of manipulation and illegality alleged in the 2011 batch of selection to the Gazetted Probation Posts. The Government of Karnataka rescinded the request made to the KPSC to fill up 362 posts of Gazetted Probation Group 'A' and 'B' Officers. Thus, the persons who are selected in the said batch were not appointed. They preferred applications challenging the said order of the Government in application No. 6268-6395/2014 and connected matters. In the said proceedings, Y.S. Dalawai, Under Secretary (Services-VII), Department of Personnel and Administrative Reforms, Vidhana Soudha filed an affidavit on 29.04.2016 stating that on 25.06.2013, an FIR was registered in Crime No. 28 of 2013 in Vidhana Soudha Police Station for the offences punishable under Section 7 of Prevention of Corruption Act, 1988 and under Sections 34, 120B, 418, 420 and 465 of IPC against (a) Sri. Gonal Bhimappa, Chairman, KPSC; (b) Sri. Arunachalam, Asst. Secretary, KPSC; (c) Sri. Sundar, Secretary, KPSC; (d) Dr. Mangala Sridhar, Member, KPSC and four other officials, after a Preliminary Investigation Report was submitted to the Government and seeking sanction under the provisions of the Prevention of Corruption Act, 1988. It is submitted that the matter is reserved for judgment. As these large scale irregularities in conducting the examination and personality test has unabated, probably being convinced with the procedure followed in terms of the Rules being inadequate, to prevent such mischief, the Government by order dated 26.7.2013 decided to constitute a committee under the Chairmanship of the retired Chairman of the Union Public Service Commission, including the Additional Chief Secretary to Government as Member to collect some good practices from Union Public Service Commission and other State Public Service Commissions and to make recommendations, as early as possible, to conduct free and fair selection while making recruitment to the posts in the State Civil Services. Sri P.C. Hota, IAS (Retd.) Chairman (Retd.), UPSC, was appointed as the Chairman of the said committee. The said committee took note of the writ proceedings pending before this Court, particularly irregularity conducted in the personality test for direct recruitment of gazetted probationers in different generalistic services of Group 'A' and Group 'B'. It had interaction with all the stake holders. After taking note of the recommendations of the Lee Commission (1924), the Constitutional provisions, the procedure followed by the UPSC, the provisions of the Government of India Act, 1935, it submitted its report which is popularly known as the 'Hota Committee' report.

280. Dealing with the question of appointment of a Chairman and members of the KPSC is concerned, it observed that the Constitution does not lay down any qualification for appointment of a Member or a Chairman of either the UPSC or a State Public Service Commission. It is, however, presumed that because of their functions, they should be men of eminence in their respective academic/professional fields and should have unimpeachable record for fair play and impartiality on matters in the public domain. Therefore, both the President of India and Governors of States have to exercise utmost care in appointing to the Public Service Commissions men of outstanding caliber and competence. They referred to the observations of the Supreme Court in Ajay Hasia v. Khalid Mujib [MANU/SC/0498/1980 : AIR 1981 SC 487] where the Apex Court held that Members and Chairman of Public Service Commissions have to be men of high integrity, caliber and qualification. Therefore, the process of selection and appointment of persons as Members and Chairman of KPSC is of utmost importance. It was observed, at present there is no standardized arrangement to recommend names of suitable persons to the Governor of the State for appointment of Chairman and Members of the KPSC. As the high constitutional office of Chairman and Members deserve to be filled up by persons with track record of integrity, fairness and intellectual competence, the Committee recommended that a broad-based Search Committee be constituted by the Government of Karnataka with the incumbent Chief Secretary as the Member - Convenor. A former Chief Secretary to Government/a former Secretary to the Government of India and a retired or incumbent Director of the Indian Institute of Management, Bangalore and retired or incumbent Director of the Indian Institute of Science, Bangalore and a Vice-Chancellor of a Central University may be other Member of the Search Committee. The broad-based Search Committee will scrutinize the bio-data and hold "personal talk", if required, to short-list two candidates for one vacancy of a Member of the KPSC. The Chief Minister of the State of Karnataka may like to nominate one out of the panel of two names suggested by the Search Committee for appointment as a Member by Governor of the State of Karnataka. Invariably, the senior-most Member may be appointed as the Chairman of the KPSC unless the senior-most Member is considered unsuitable for such appointment by the Government. The Search Committee may finalize the list of two names to be sent to the Chief Minister at least two months in advance of the likely date of occurrence of the vacancy of a Member/Chairman KPSC so that the appointment is announced well in advance.

281. The material on record discloses that the persons who are behind grave irregularity and fraud are none other than the Chairman of the KPSC and the Secretary of the KPSC and the officials of KPSC. The members of the Commission have stated that they have acted at the behest of the Chairman of the KPSC either in giving more marks to the candidates, giving marks to the persons who did not attend the interview, reducing marks of other candidates. It only shows the caliber and the standard of persons who are appointed as the members of the Committee.

282. The CID report discloses that voluminous documents were seized from the house of Dr. H.N. Krishna, the Chairman of the KPSC. Apart from this, number of documents related to movable and immovable properties were recorded from the residence of Dr. H.N. Krishna and these were handed to the Karnataka Lokayukta for taking necessary action as per the directions of the Hon'ble monitoring Judge. Karnataka Lokayukta Police have registered a case of amassment of properties disproportionate to known sources of income and investigated the same vide LAC No. 56/2011. Dr. H.N. Krishna was arrested, interrogated and remanded to judicial custody. In fact, Smt. Asha Parveen, Smt. Salma Firdose who were candidates in 1998 selection were arrested and released on bail since anticipatory bail was granted to them by the High Court of Karnataka. Sri. M.B. Banakar, Sri. Narasimha and Sri. Gopi Krishna, all employees of KPSC were also arrested and remanded to judicial custody as they were found to have conspired with Dr. H.N. Krishna in commission of offences.

283. The detailed investigation discloses that, Dr. H.N. Krishnhas committed offences punishable under Sections 418, 465, 468, 471, 506 read with 109, 120 (b) of IPC. Mrs. Asha Parveen, Salma Firdose, K. Narasimha, Gopi Krishna and M.B. Banakar were accused of having committed offences under Sections 465, 468, 471, 420, 120 (b) of IPC. Against the Secretary Sri Monnappa also charge sheet was filed accusing him of committing offences under Sections 120 (b), 109, 166, 409, 418, 420 of IPC and the case is pending. In respect of 2011 selection, Y.S. Dalawai, Under Secretary (Services-VII), Department of Personnel and Administrative Reforms, Vidhana Soudha filed an affidavit on 29.04.2016 stating that on 25.06.2013, an FIR was registered in Crime No. 28 of 2013 in Vidhana Soudha Police Station for the offences punishable under Section 7 of Prevention of Corruption Act, 1988 and under Sections 34, 120B, 418, 420 and 465 of IPC against (a) Sri. Gonal Bhimappa, Chairman, KPSC; (b) Sri. Arunachalam, Asst. Secretary, KPSC; (c) Sri. Sundar, Secretary, KPSC; (d) Dr. Mangala Sridhar, Member, KPSC and four other officials. After a Preliminary Investigation Report is submitted to the Government, seeking sanction under the provisions of the Prevention of Corruption Act, 1988. In fact, the Governor of Karnataka subsequently passed an order of suspension of a member of the KPSC on similar grounds. Challenging the said order of suspension, Writ Petition is filed which came to be dismissed. Writ Appeal is filed before this Court and is pending. Subsequently, the Government of Karnataka recommended the name of another person for the post of Chairman of KPSC. The Governor of Karnataka sought for clarifications and being satisfied that the said person is not suitable for the said post declined to appoint him. The Government of Karnataka is not yet able to appoint the Chairman to the KPSC. In fact, the Governor also did not appoint all the persons recommended by the Government as members of the Commission as there was serious allegations against some of them. This sorry state of affairs in the most progressive State of Karnataka is on account of extraneous considerations, taking precedence over persons with track record of integrity, fairness, caliber and intellectual competence. In fact, the blame for such sorry state of affairs has to squarely fall not on the persons appointed but on the appointing authority. If the rulers of the day do not keep public interest, purity of administration, welfare of the people, in particular the downtrodden and back ward classes and prefer to appoint persons who are not suitable for the job on extraneous considerations, we cannot expect any better things to happen. The facts set out in this judgment, the facts revealed in the Three Man Committee constituted by the KPSC, report given by K.K. Mishra, CID report and also the report of the committee constituted by the High Court in these proceedings clearly point out that all is not well in the functioning of the KPSC. The Chairmen's, the Secretaries, Members of the Commission and the officials are facing criminal prosecution. In fact such persons are appointed. Public interest is severely affected. When persons with honesty and integrity are not appointed to such Constitutional posts, to expect any fair, just, reasonable selection from those persons is impossible.

284. In this background it is relevant to recall the words of two eminent personalities who had an active role in framing the Indian Constitution. Dr. Rajendra Prasad, Chairman of the Constituent Assembly of India, at its concluding session cautioned:

"Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend on the men who administer it. It is trite saying that a country can have only the government it deserves.... After all, a Constitution, like a machine, is a lifeless thing.... If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country... India needs today nothing more than a set of honest men who will have the interest of the country before them."

285. Dr. B.R. Ambedkar, the Chairman of the drafting Committee of the Constitution, stated in the Constituent Assembly at its meeting on 25th November 1949 as under:

"However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be good lot. The working of the Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of the State such as the legislature, the executive and the judiciary. The factors on which the working of these organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?'"

286. The Constitution of India provides for establishment of Public Service Commission for recruitment for civil posts it provides for appointment of Chairman and Members of the Constitution. They are all Constitutional functionaries. The civil services of the country depends upon the type of persons who are appointed to the said post. The administration in the country is dependent on who administer it. If capable and men of character and integrity are appointed to the civil posts, then the constitutional goal is achieved and everyone would have a fair and equal opportunity to participate in the administration. If the persons who are so appointed lack this basic qualities and by manipulation, fraud, deceit and connivance with the officials get into these posts, one can imagine what would be the state of affairs of the administration. Therefore mere giving constitutional status to the Public Service Commission would not serve the purpose.

287. Therefore, the State Government, if they are really interested in public welfare, interest in the development of Karnataka, in having a good bureaucracy which will be sensitive to the common man, down trodden, they should appoint persons with track record of integrity, fairness and intellectual competence as suggested by the Hota Committee in its report at paragraphs 65 and 66. The procedure and the qualification prescribed by the Hota Committee report is reasonable, deserves to be implemented in letter and spirit. The material on record also discloses that, they have pointed out the cause for such mischief. The candidates with high scores in the written examination attempted to approach the members of the KPSC to give him high marks in the interview test so that he is sure to be selected for appointment to the prestigious services including the Karnataka Administrative Service. They have observed that it is because of the notification of 26.9.1978. It is heartening to note that recommendation is already implemented. Then in paragraphs 47, 50, 51, 53, 56, 58, how the personality test is to be conducted, how the committee is to be constituted, who should be the members of the committee, for what duration interview is to be conducted in respect of each candidate, so that the mischief which is exposed in these proceedings is prevented. Therefore, we are of the view that the Government shall give immediate attention to the said recommendations, if necessary amend the Rules to that effect and issue a notification so that the past mistakes are not repeated and no meritorious students because of the game plan by the members of the Commission are denied the benefit of appointment in the Karnataka Administrative Service. Therefore, till the Government frames proper Rules for implementation of the recommendation of this report, as is clear from the record, these mistakes are repeated every year, to put an end to them forthwith, we direct the Government to follow the following recommendations of the Hota Committee as contained in its report, in all future selection positively without giving room for any further attacks against the selection process by the aggrieved person by approaching this Court.

IMPORTANT RECOMMENDATIONS OF HOTA COMMITTEE

"(46) The Committee received evidence that such a stipulation in the 1973 Rules is a vulnerable pressure point in a Merit-based selection process as the successful candidates know in advance of the Interview Test their total marks in the Main Written Examination. Such a Procedure may tempt a candidate with high scores in the Written Examination to make attempts to approach Members of the KPSC to give him high marks in the Interview Test so that he is sure to be selected for appointment to prestigious services including the Karnataka Administrative Service.

(47) The Committee would like to go on record that such a practice is not prevalent in any State Public Service Commission. In the UPSC, not only the marks in the Main Written Examination are confidential till the final Merit List for the Civil Service Examination is notified but even Chairman and Members of the UPSC are not told about the written scores of candidates even when they interview the candidates by presiding over Personality Test Boards.

(50) The Committee recommends that each Interview Board would be presided over by the Chairman or by a Senior Member of the KPSC and must have four Advisers-preferably drawn from outside the State of Karnataka. These Advisers would be from among the retired Members of the All India Services, retired Members of the Central Services Group A. These Advisers should have retired at least in the Higher Administrative Grade (i.e. equivalent to the grade of Principal Secretary to Government of Karnataka or of equivalent rank for the Gazetted Probationers' Interview and secretary to Government of Karnataka or equivalent rank for other posts). The four Advisers - a majority of them preferably from outside the State of Karnataka - may have a few reputed academic administrators as retired Vice-Chancellors of Central Universities; retired Professors of Indian Institutes of Technology, retired Professors of Indian Institutes of Management, retired Professors of Indian Institute of Public Administration, New Delhi, retired Professors of the National Academy of Administration, Mussoorie or other retired Professors in Training Institutes of Government of India located in different parts of the Country. Some of the outside experts invited to assist an Interview Board as Advisers may know the Kannada language for proper assessment of candidates who appear in Interview in the Kannada medium. If required, the Adviser from the state of Karnataka can translate question and answers from Kannada to English and vice versa for benefit of Advisers in the Interview Boards, who do not know the Kannada language.

(51) The Interview Boards will assess personal qualities of candidates and their suitability for the Civil Service in terms of leadership qualities, balance of judgment, variety and depth of interest, capacity to work in a team and persuasive skills and capacity for logical thinking.

(53) To eliminate as far as possible subjectivity in assessment of candidates, the KPSC may circulate a note among Chairman and Advisers of the Interview Boards that on the basis of performance in the Interview Test, candidates may be categorized as Outstanding (70 percent and above); Very Good (60 to 70 percent); Good (50 to 60 percent); Average (40 to 50 percent) and Poor (less than 40 percent).

(54) After a candidate, who has been interviewed by the Interview Board, leaves the venue of the Interview, the Chairman of the Interview Board may ask each of the four Advisers regarding opinion about the grading of the candidate in terms of his performance in the Interview. The Advisers will discuss the proposed score of the candidate in the Interview Test with the Chairman of the Board. Marks to a candidate in the Interview Test will be awarded as per the following formula: Chairman of the Board and the four Advisers will separately allot marks out of the maximum total marks in the Interview Test to the candidate. The average score of the candidate in the Interview Test would be arrived at by dividing the total marks scored by the candidate (addition of marks on a sheet of paper recorded by each of the Members in the Board). Thereafter, the percentage deviation (of the maximum) from the calculated average of each individual Member would be tabulated. The marks allotted to a candidate by two of the five Members of the Interview Board which show highest deviation from the average score, would not be taken into account in computing the final score of a candidate in the Interview Test. The marks given by the three remaining Members of the Interview Board would be taken into account to calculate the average score of the candidate. This average score would be the official score of a candidate in the Interview Test. A Note on the modalities of assessment to be followed by an Interview Board regarding score of a candidate in the Interview Test is annexed. (Annexure-Three).

(56) On the day, the Interview Test will commence in the premises of the KPSC, the Chairman KPSC may call for a meeting of all Advisers and Members who are to preside over the Interview Boards. The Chairman of the KPSC may explain the attributes to be looked for in a candidate in the Interview Test by reference to the Prospectus issued along with the Notification of the Examination. In order to enable the Interview Boards to assess the personal qualities of candidate required for the Civil Service, the Chairman will request the Advisers and Members of the KPSC not to ask knowledge- based questions as knowledge of the candidate has been already tested in a Pen-and-Paper test in the Main Written Examination. Broadly speaking, questions to a candidate will be of general nature to assess his various personal attributes and leadership qualities. In the first few minutes of the interview of candidate, the Chairman of the Interview Board may like to ask a few pleasant and familiar questions to put the candidate at case so that he overcomes his nervousness. Each candidate may be interviewed ideally for a duration of 25 to 30 minutes and instead of calling 25 candidates per day for the Interview Test as at present, only nine candidates need be called per day-five in the forenoon and four in the afternoon. Every week the Presiding Members and Advisers of the Interview Board may be changed by the Chairman KPSC and once a new set of Advisers and Members come for the Interview Board the same briefing would be given to them as was given by the Chairman to Members and Advisers in the previous week.

(58) The KPSC also selects specialists to fill up technical and scientific posts under the Government of Karnataka. It would be expedient if for filling these posts, there are Interview Boards constituted by the KPSC, where experts in the relevant technical and scientific disciplines are drawn from outside the state.

(65) The last-but not the least important issue-is the process of selection and appointment of persons as Members and chairman of the KPSC. At present, there is no standardized arrangement to recommend names of suitable persons to the Governor of the State for appointment of Chairman and Members of the KPSC. As the high constitutional office of Chairman and Members deserve to be filled up by persons with track record of integrity, fairness and intellectual competence, the Committee recommends that a broad - based Search Committee be constituted by the Government of Karnataka with the incumbent Chief Secretary as the Member - Convenor. A former Chief Secretary to Government/a former Secretary to the Government of India and a retired or incumbent Director of the Indian Institute of Management, Bangalore and retired or incumbent Director of the Indian Institute of Science, Bangalore and a Vice-Chancellor of a Central University may be other Member of the Search Committee. The broad - based Search Committee will scrutinize the bio-data and hold "personal talk", if required, to short-list two candidates for one vacancy of a Member of the KPSC. The Chief Minister of the State of Karnataka may like to nominate one out of the panel of two names suggested by the Search Committee for appointment as a Member by Governor of the State of Karnataka. Invariably, the senior-most Member may be appointed as the Chairman of the KPSC unless the senior-most Member is considered unsuitable for such appointment by the Government.

(66) The Search Committee may finalize the list of two names to be sent to the Chief Minister at least two months in advance of the likely date of occurrence of the vacancy of a Member/Chairman KPSC so that the appointment is announced well in advance."

288. It is pertinent to point out that Hota Committee is constituted by the Government because the mistakes committed in 1998, 1999, 2004 selections were repeated in 2011. It only shows the State Government was unable to plug the mischief, probably because they did not have the requisite expertise. Now that an expert body is constituted, who have given their report after consulting all the stake holders, the Government should accept the recommendation and implement the same. Therefore, without any delay the Rules have to be amended comprehensively giving effect to all the recommendation. Piecemeal amendment to rules as is done now would not serve the purpose. The mischief may reoccur in the future selection. Therefore, we hope in order to have good governance in the State, the Government would act promptly and see that, in future, selections are done in accordance with the goal set by the Constitution of India.

289. In the light of the aforesaid discussion on all points which arose for consideration in this Public Interest Litigation, We make the following:

"ORDER

(1) The procedure followed by the KPSC in preparing the list of candidates who are admitted to the written examination and the list of candidates who are called for the personality test in 1998, 1999 and 2004 for the post of Gazetted Probationers (Group A and B Posts) is unconstitutional, contrary to the Rules and the Government Orders.

However, on that ground, the entire selection of 1998, 1999 and 2004 batch selection cannot be set aside.

Segregation of tainted/ineligible candidates is possible. The KPSC shall undertake the following exercise to segregate the ineligible candidates:

(a) The KPSC shall prepare a separate list of candidates belonging to the reserved category, who took the written examination, showing the marks secured in the written examination in the order of merit.

(b) From out of the names in the said list prepared, prepare a list of candidates eligible to be called for the personality test in the ratio of 1:5, i.e., five times the number of candidates as there are vacancies reserved for each of the category out of reserved posts belonging to Scheduled Caste, Scheduled Tribes and other backward classes.

(c) If the names of the selected candidates belonging to the reserved category finds a place in this list, whether as General Merit candidates or Reserved candidates, then their appointment is valid and it shall not be disturbed.

(d) If the names of the selected candidates do not find a place in this list, then their appointment is void and the same is hereby set aside.

(e) The KPSC shall undertake this exercise within two months from the date of receipt of the copy of this order and forward the same to the Government for passing appropriate orders.

(2) The revised list prepared by the KPSC in terms of the order dated 11th October 2002 in W.P. No. 12548-589/2002 which is affirmed by the Apex Court in Civil Appeal No. 6172-6222/2005 vide Order dated 6th October, 2005, which was submitted to the Court by the KPSC in a sealed cover, which was web-hosted by virtue of the order dated 11.11.2014 of this Court, is upheld. The KPSC and the State Government shall give effect to the said list.

(3) The KPSC shall take into consideration the 91 answer scripts which forms part of excess of 10% of the revalued paper and give effect to the order of the High Court dated 11th October 2002 in W.P. No. 12548-589/2002 and the order of the Apex Court in Civil Appeal No. 6172-6222/2005 vide Order dated 6th October, 2005.

(4) The selection of candidates for the post of 1999 Gazetted Probationers (Group A and B posts) is not liable to be set aside on the ground of destruction of answer scripts.

(5) In respect of the matters which are adjudicated and decided in this writ petition, this Public Interest Litigation is maintainable.

(6) All other issues/disputes which are personal in character are relegated to be decided by the Karnataka Administrative Tribunal, where the applications of the petitioners are pending consideration. It is open to the petitioners to amend the said application to include those issues which are not decided in this Public Interest Litigation. Similarly, it is open to the respondents to agitate their rights/put forth their defence in the pending proceedings before the Karnataka Administrative Tribunal, if they are made parties. Otherwise, they can also initiate independent proceedings for protecting their rights or agitate their rights.

(7) The KPSC and the State Government shall take steps to frame Rules or amend the existing Rules giving effect to the recommendations of Hota Committee, at the earliest. Till such Rules are framed or amended, the KPSC and the State Government shall follow the recommendations of the Hota Committee as set out in paragraphs 46, 47, 50, 51, 53, 54, 56, 58, 65 and 66 of the report, which are clearly set out in paragraph 287 of this Judgment.

(8) The High Court Registry is directed to keep the reports submitted by the members of the High Court Committee constituted by this Court in this proceedings, in safe custody. If and when any request is made from the Karnataka Administrative Tribunal to transmit the said records, the same shall be sent to the Karnataka Administrative Tribunal."

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