Hon'ble Judges/Coram:
Subhro Kamal Mukherjee, C.J. and P.S. Dinesh Kumar JUDGMENT
P.S. Dinesh Kumar, J.
1. These public interest litigations are filed, inter alia, with a prayer to quash the order dated October 19, 2016, passed by the Karnataka State Administrative Tribunal ('KAT' for short), Bengaluru, in Application Nos. 6268 to 6395 of 2014 and connected matters.
2. Applicants before the KAT were candidates, who appeared for 2011 Karnataka Gazetted Probationers' Examination. They were selected as per the select list dated March 21, 2013, issued by the Karnataka Public Service Commission ('KPSC' for short). The State Government vide Government Order dated August 14, 2014, withdrew the requisitions made by them to the K.P.S.C. and ordered for closure of recruitment process of Gazetted Probationers for the year 2011. Being aggrieved, the applicants challenged the said Government Order before the KAT. By the order impugned, the KAT allowed the applications and quashed the Government Order dated August 14, 2014 and, further, directed the State Government to issue appointment order to the applicants in terms of Rule 11(3) of the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997 ('Recruitment Rules' for short).
3. This Court vide an interim order dated April 5, 2017, restrained the respondents from making any appointment in terms of the order passed by the KAT.
4. In Writ Petition Nos. 13617 to 13627 of 2017 and 14529 of 2017, some of the selected candidates filed two interlocutory applications registered as I.A. Nos. IV and V of 2017 seeking their impleadment as party-respondents and to recall that portion of the interim order dated April 5, 2017, restraining the authorities from making any appointments, respectively.
5. In the meanwhile, the petitioners moved an interlocutory application, I.A. No. IX of 2017, seeking to implead the proposed respondent Nos. 5 to 366. Notices were ordered to the proposed respondents and some of them were served.
6. In the interregnum, the respondents-State moved an application - I.A. No. X of 2017 to vacate the interim order dated April 5, 2017.
7. The applications, I.A. Nos. V and X, in substance contained a similar prayer, that is to vacate the interim order dated April 5, 2017. Hence, they were considered together and this Court vide order dated April 21, 2017, dismissed the application filed by the State to vacate the interim order. Consequently, I.A. No. V of 2017 was, also, dismissed.
8. Even before all the proposed respondents are served and I.A. No. IX is ordered, 81 out of 366 proposed respondents have moved the present application I.A. No. XI with a prayer to vacate that portion of the order dated April 5, 2017, restraining the authorities from issuing any orders of appointment.
9. We have heard Mr. B.V. Acharya, learned senior advocate for the applicants in I.A. No. XI of 2017, Mr. Aditya Sondhi, learned Additional Advocate General for the State, Mr. P.S. Rajagopal, learned senior advocate for the KPSC, Mr. B.M. Arun, learned advocate for the proposed respondent No. 23, Mr. Udaya Holla and Mr. Jayakumar S. Patil, learned senior advocates for the writ petitioners.
10. Mr. B.V. Acharya, learned senior advocate, vehemently contended that the petitioners are unsuccessful candidates, who appeared for the 2011 Gazetted Probationers' examination. Therefore, these public interest litigations presented by them are not maintainable. The right course for them was to approach the KAT for redressal of their grievances, if any. But, the petitioners bypassing the KAT, have directly challenged its order directing the State Government to appoint the selected candidates in the guise of these public interest writ petitions. Such conduct of the petitioners disentitles them from any relief in these writ petitions. As a corollary, the interim order passed by this Court is unsustainable in law.
11. Mr. Aditya Sondhi, learned Additional Advocate General, also argued in support of I.A. No. XI. He contended that the Government on a careful perusal of entire material on record, have taken a conscious decision to give effect to the order passed by the KAT. He submitted that large numbers of selected candidates are awaiting their appointment orders since 2014. Accordingly, he prayed that this Court may consider the prayer made by the applicants-proposed respondents and permit the Government to issue appointment orders by suitably modifying the interim order dated April 5, 2017, even by imposing such conditions/directions as may be found expedient by this Court.
12. Mr. P.S. Rajagopal, learned senior advocate, also supporting the applications for vacating stay, submitted that the KAT has examined the enquiry report before passing the impugned order. He submitted that it is the consistent view of the Courts that in a situation akin to the one on hand, the appointments are made subject to the outcome of litigation. With these submissions, he also prayed for vacating the interim order.
13. Mr. B.M. Arun, learned advocate, submitted that a public interest litigation is not maintainable in a service matter. He placed reliance on a judgment of the Supreme Court of India in the case of Girjesh Shrivastava and Others Vs. State of Madhya Pradesh and Others reported in MANU/SC/0888/2010 : (2010) 10 SCC 707.
14. Opposing the application for vacating the interim order, Mr. Udaya Holla, learned senior advocate, at the outset, contended that the instant application is not maintainable inasmuch as the same is hit by the principles of res judicata. He argued that this Court by a considered order dated April 21, 2017, has already dismissed an identical application filed by the respondents-State. Therefore, any subsequent interlocutory application containing a similar prayer is squarely hit by the principles of res-judicata. In support of his contention, he placed reliance on a judgment of the Supreme Court of India in the case of Erach Boman Khavar Vs. Tukaram Shridhar Bhat and Another reported in MANU/SC/1288/2013 : (2013) 15 SCC 655.
15. Refuting the contention with regard to maintainability of a public interest litigation, he submitted that the issue is fairly well-settled that in an appropriate case, the Court may treat a private interest litigation as a public interest litigation and consider the same. In support of his contention, he placed reliance on the following judgments:
| a) | MANU/SC/0456/1994 : (1994) 4 SCC 165 | (Krishan Yadav and Another Vs. State of Haryana and Others) |
| b) | MANU/SC/0109/2002 : (2002) 3 SCC 146 | (Union of India and Others Vs. O. Chakradhar) |
| c) | MANU/SC/0355/2004 : (2004) 11 SCC 1 | (Indian Banks' Association, Bombay and others Vs. Devkala Consultancy Service and Others) |
| d) | MANU/SC/3761/2007 : (2007) 8 SCC 264 | (M.P. State Coop. Bank Ltd., Bhopal Vs. Nanuram Yadav and Others) |
| e) | MANU/SC/0342/2010 : (2010) 6 SCC 614 | (Chairman, All India Railway Recruitment Board and Another Vs. K. Shyam Kumar and Others) |
16. He, further, argued that the respondents-State have not placed on record any special circumstances, which may have necessitated the State to take a different stand from the one, which they had taken before the KAT. With these submissions, he prayed for dismissal of the application, I.A. No. XI of 2017.
17. Mr. Jayakumar S. Patil, learned senior advocate, arguing on similar lines, submitted that the State Government having resisted the prayers of the applicants before the KAT are now seeking to take shelter under the impugned order. Assailing the correctness of the impugned order, he submitted that in the light of large scale malpractice, the KAT could not have issued a direction to appoint the applicants therein.
18. We have carefully considered the submissions of learned advocates.
19. The entire episode has emanated with the petitioner in Writ Petition No. 11342 of 2017 (Dr. H.P.S. Mythri vs. State of Karnataka and Others) and one Mr. Gangadharaiah filing complaints before the learned Advocate General for the State of Karnataka, levelling serious allegations of irregularities in the selection process. Pursuant to an opinion by the learned Advocate General, Government registered a complaint with the police against one Mr. Gonal Bhimappa, Chairman, KPSC and others for offences punishable under Sections 34, 120-B, 418, 420, 465 IPC read with Section 7 of the Prevention of Corruption Act, 1988, and the same was registered as Crime No. 28 of 2013, on the file of the learned VIII Additional Chief Metropolitan Magistrate, Bengaluru. Further, the matter was entrusted by the Government vide G.O. No. OE 63 CID 2013 dated June 27, 2013 to investigate into the malpractices committed by the members of the selection committee, by the Crime Investigation Department headed by the Director General of Police. The enquiry report dated September 10, 2013, revealed several irregularities. Keeping in view the interests of meritorious candidates, the Government rejected the evaluation and the marks awarded and, further, directed the KPSC to redo the exercise, by Government Order dated October 15, 2013. The KPSC vide communication dated December 19, 2013, appears to have expressed its inability to comply with the Government Order.
20. In the meanwhile, some of the candidates challenged the Government Order dated October 15, 2013 before the KAT. The said applications were opposed by the Government.
21. In the interregnum, KPSC continued and completed the selection process and published the final select list on March 21, 2014 and forwarded the same to the Government. The said list was challenged in the application No. 2661 of 2014 by Dr. H.P.S. Mythri, before the KAT.
22. On May 14, 2014, Dr. Mangala Shridhar, one of the members, KPSC was suspended for her alleged involvement in large scale malpractices.
23. On completion of investigation, the Crime Investigation Department having found that some of the members were involved in a criminal conspiracy and had received illegal gratification, sought for sanction to file charge sheet by it's letter dated May 27, 2014.
24. State Government by an order dated August 14, 2014, withdrew the recruitment process. The said order was challenged before the KAT in application Nos. 6268 to 6395 of 2014 and connected matters and the said applications were allowed by the common order dated October 19, 2016, impugned in these writ petitions.
25. As noted supra, respondents-State Government moved an interlocutory application I.A.X to vacate the interim order dated April 5, 2017. After hearing, the said application was dismissed on April 21, 2017.
26. In substance, the prayer contained in the present application I.A.XI is the same as the one contained in I.A. Nos. X and V, which have been dismissed by this Court by order dated April 21, 2017.
27. Mr. B.V. Acharya, learned senior advocate, Mr. Adithya Sondhi, learned Additional Advocate General and other advocates vehemently argued not only in support of the present application, but, also, on merits of the case. It is a matter of record that a similar application moved by the State Government has been rejected. It is rather surprising that the State Government having suffered an order of dismissal of their application have, also, joined the chorus in supporting the present application. The State Government resisted the applications before the KAT.
28. However, after termination of proceedings before the KAT, the State Government, have curiously taken an antithetical stand. But, having taken such contrasting position, the Government have not placed any material before this Court to demonstrate that they have had sound, valid and tenable reasons to retreat from their earlier stand and resolve to comply with the directions contained in the impugned order. On the other hand, in support of their application I.A.X, the State Government have pleaded thus before this Court:
"6. It is respectfully submitted herein that pursuant to the order dated 19.10.2016 passed in Application No. 6268 of 2014 and connected matters considering various grounds realizing the State Government has taken a conscious decision to abide by the order passed by the Hon'ble Karnataka Administrative Tribunal in application No. 6268 of 2014 and connected matters. No fault can be found with the action of the Government in accepting the orders passed by the Karnataka Administrative Tribunal. ..............."
29. This Court cannot lose sight of the fact that what was challenged before the KAT was the Government Order dated August 14, 2014, withdrawing the recruitment process. We have perused the said order. It gives a clear indication that the said order was passed after having considered the reports submitted by the C.I.D. and the opinion of the learned Advocate General. Executive is a wing of the Constitution. Having withdrawn the selection process for reasons recorded in their order, it is imperative for the Government to place the material considered by them in taking a contrary stand before this Court. The selection is for the posts of Gazetted Probationers, who on their appointment shall be working as Administrative Officers. A decision of the Government, more particularly in a case of this nature, must be borne out on record and transparent. State Government cannot remain content themselves by an ostensibly innocuous pleading that they have taken a 'conscious decision' to abide by the ruling of the KAT.
30. It was, also, argued by the learned senior advocate for the applicants that the selection made by the very same committee/members for the subsequent years has been given effect to. But, this Court is concerned with the selection for the year 2011, which is under challenge. Therefore, the said submission is too fragile to be countenanced and is noted only to be rejected.
31. We have carefully perused the CID report. It makes a startling revelation that interviews were conducted for the sake of formality and marks were awarded at a later point of time. We have, also, perused the Government Order dated October 15, 2013, the order dated May 14, 2014 passed by His Excellency the Governor of Karnataka placing one of the members, Dr. Mangala Sridhar under suspension and the Government Order dated August 14, 2014 withdrawing recruitment process. A combined reading of these documents coupled with the contradictory stand of the Government leads us to infer that the matter is a serious one and requires consideration. In this background, we have requested the learned Additional Advocate General to place on record the original files for the perusal of this Court.
32. Though, the learned Counsel for the contesting parties have cited authorities and argued on the aspect of maintainability of a Public Interest Litigation, considering the gravity of state of affairs, we have not examined the same at this juncture.
33. It is fairly well settled that doctrine of res judicata is applicable between the two stages of a litigation. We are, also, fortified by the authority cited by Mr. Udaya Holla, learned senior advocate, in the case of Erach Boman Khavar Vs. Tukaram Shridhar Bhat and another reported in MANU/SC/1288/2013 : (2013) 15 SCC 655. In the said case, Supreme Court of India after considering several authorities, right from Satyadhyan Ghosal v. Deorajin Debi, reported in MANU/SC/0295/1960 : AIR 1960 SC 941, has held as follows:
"39. From the afore said authorities, it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits.It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation."
(Emphasis supplied)
34. Therefore, in our considered view, the application, I.A. No. X of 2017 to vacate the interim order filed by the State Government having been expressly rejected, the present application, I.A. No. XI of 2017, which contains a similar prayer, is hit by the doctrine of res judicata. Hence, the same is not maintainable and it is, accordingly, dismissed.
35. We make no order as to costs.
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