- 1 - WA NO.200140 OF 2022 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS 8TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON’BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT APPEAL NO. 200140 OF 2022 BETWEEN: ASHOK S/O KALLAPPA SHIVOOR, ROLL NO.2014142, AGE: 32 YEARS, OCC: UNEMPLOYED, R/O. KARAJAGI, TQ: AFZALPUR, DIST: KALABURAGI – 585217. …APPELLANT (BY SRI S.S. HALALLI, ADVOCATE) AND: 1. THE MEMBER SECRETARY, RECRUITMENT COMMITTEE, AND MANAGING DIRECTOR, YADGIR AND KALABURAGI, DISTRICT CENTRAL CO-OPERATIVE BANK, KALABURAGI – 585104. 2. MALAKAYYA AGED ABOUT 35 YEARS, OCC: SECOND DIVISION CLERK, KALABURAGI – 585104. 3. THE YADGIRI AND KALABURAGI DISTRICT CENTRAL CO-OPERATIVE BANK, REP. BY THE MANAGING DIRECTOR, Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - WA NO.200140 OF 2022 JAGAT CIRCLE, SUPER MARKET ROAD, KALABURAGI – 58104. …RESPONDENTS (BY SRI GOURISH S. KHASHAMPUR, ADV. FOR R1 & R3; SRI GANESH S. KALABURAGI, ADV. FOR R2) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT, 1961, PRAYING TO ALLOW THE WRIT APPEAL AND SET ASIDE THE ORDER DATED 21.06.2022 IN W.P.NO.202591/2015 (S-RES) PASSED BY THE LEARNED SINGLE JUDGE AND FURTHER DIRECT THE RESPONDENT BANK TO APPOINT THE APPELLANT AS SECOND DIVISION ASSISTANT FROM THE DATE OF THE APPOINTMENT OF THE 4TH RESPONDENT. THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.04.2025, COMING ON FOR “PRONOUNCEMENT OF JUDGMENT” THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON’BLE MR. JUSTICE VIJAYKUMAR A. PATIL CAV JUDGMENT (PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL) This intra Court appeal is filed challenging the order of the learned Single Judge dated 21.06.2022 passed in W.P.No.202591/2015 (S-RES). 2. Brief facts leading to the filing of this appeal are that, the respondent No.3 issued a notification dated - 3 - WA NO.200140 OF 2022 03.08.2012 inviting applications for appointment of First Division Clerk, Second Division Clerk (hereinafter referred as ‘SDC’), peon and drivers. The appellant applied to the post of SDC on 21.08.2012. The written test was conducted on 27.10.2014 and the appellant secured 115 marks out of 200 marks while 2nd respondent secured 91 marks. The appellant was called for the interview on 03.01.2015. It is averred that the recruitment process was as per the order dated 13.06.2011 which provides that the written examination marks obtained by the candidates would be reduced to 95% and 5 marks were earmarked for interview. It is further averred that contrary to the said order, the selection list of SDC was finalized and appointment orders have been issued. Hence, he sought writ in the nature of mandamus to the 1st respondent herein to furnish the interview marks list and final selection list of SDC and further prayer to quash selection of SDC made pursuant to the notification dated 03.08.2012 and written test dated 27.10.2014. - 4 - WA NO.200140 OF 2022 3. The respondent No.3 filed statement of objections mainly contending that the order dated 13.06.2011 came to be modified by order dated 22.08.2013, wherein 15% of marks were provided for the interview and 85% to the written test and considering the same, the selection list has been prepared and the appellant being lesser in merit than the selected candidate, his candidature was not considered. Hence, sought for dismissal of the writ petition. 4. Learned Single Judge considering the rival submissions and taking note of the material available on record, has come to the conclusion that the Government Order dated 22.08.2013 has modified the marks prescribed for the written examination and interview and the appellant knowing fully well appeared for the written test and interview, now he cannot turn around and challenge the same. The writ petition filed by the appellant came to be dismissed. Being aggrieved, this appeal is filed. - 5 - WA NO.200140 OF 2022 5. Sri. S.S. Halalli, learned counsel for the appellant submits that respondents have prepared the list of SDCs contrary to the Government Order dated 13.06.2011 as well as the judgment of the Hon’ble Supreme Court. It is submitted that the non-selection of the appellant as SDC despite having secured more marks in the written examination than the respondent No.2 is arbitrary and illegal calling for interference. It is submitted that the modified order was issued on 22.08.2013 by which the marks in the interview has been increased from 5 to 15 and the percentage in written examination has been reduced from 95% to 85% and such exercise is carried out after the commencement of the recruitment process which amounts to change of rules after the process is commenced which is impermissible as per the law laid down by the Hon’ble Supreme Court in the case of Tej Prakash Pathak and others vs. Rajasthan High Court and others1. It is further submitted that the change in norms during the selection process has no application to 1 2024 SCC Online SC 3184 - 6 - WA NO.200140 OF 2022 the pending selection process. In support of his contentions, he has placed reliance on the decision of the Hon’ble Supreme Court in the case of State of Bihar and others vs. Mithilesh Kumar2. Hence, he seeks to allow the appeal by setting aside the selection of respondent No.2 by directing to appoint the appellant to the said post. 6. Per contra, Sri. Gourish S. Khashampur, learned counsel appearing for respondents No.1 and 3 supports the order of the learned Single Judge and submits that there is no change of rules after the recruitment process has been commenced. It is submitted that the appellant knowing fully well, appeared for the written examination, appeared for the interview and after coming to know that he has secured less marks than the selected candidate, has chosen to challenge the selection process which is impermissible. Hence, he seeks to dismiss the appeal. 2 (2010) 13 SCC 467 - 7 - WA NO.200140 OF 2022 7. Sri. Ganesh S. Kalaburagi, learned counsel appearing for respondent No.2 supports the order of the learned Single Judge and submits that the respondent had invited the application for 41 posts of SDC, FDC, Peon and Driver and as per the Government Order dated 22.08.2013, the candidates have appeared for the written test and the interview including the appellant without any objections. Now the appellant cannot object for the Government Order dated 22.08.2013. It is submitted that 2nd respondent has secured more marks than the appellant in the selection process and there is no violation of the selection process by the authority which has been rightly considered by the learned Single Judge. It is also submitted that the respondent No.2 is working for more than 10 years. Hence, at this stage he cannot be disturbed. In support of his contentions, he has placed reliance on the decision of the Hon’ble Supreme Court in the case of State of Uttar Pradesh vs. Karunesh Kumar3 and he seeks to dismiss the appeal. 3 AIR 2023 SC 52 - 8 - WA NO.200140 OF 2022 8. We have heard the submissions of the learned counsel for the appellant, learned counsels for respondents and meticulously perused the materials available on record. We have given our anxious consideration to the submissions advanced and the material available on record. 9. The pleading and material available on record indicates that the respondent No.3 issued the recruitment notification dated 03.08.2012 which was duly published in Kannada Daily Newspaper ‘Prajavani’ dated 04.08.2012. The appellant submitted his application to the post of SDC before the last date. The authorities conducted the written test on 27.10.2014 and the appellant has appeared in the said written test. It is also not in dispute that the respondent No.2 has also applied for the post of SDC and he has appeared for the written examination. The appellant secured 115 marks out of 200 marks in the written examination, 9 marks out of 30 marks in the interview and the respondent No.2 secured 91 marks in the written examination and 30 marks in the interview. - 9 - WA NO.200140 OF 2022 The final selection list indicates that the respondent No.2 totally secured 107.35 marks and appellant has secured 106.75 marks. 10. The Government Order dated 13.06.2011 provides that the written examination marks obtained by the candidate would be reduced to 95%. The written examination would be for 200 marks, each paper consisting of 100 marks. As per the order, the marks secured by candidates would be reduced to 95% and thereafter the marks secured in the interview would be added. The 5% marks had been earmarked for the interview. The subsequent order of the State Government bearing No.CO156CLM2012, Bengaluru dated 22.08.2013 has withdrawn the earlier Government Order dated 13.06.2011. The order dated 22.08.2013 provides that the written examination marks obtained by the candidate would be reduced to 85% and 15% marks is provided for the interview (maximum 30 marks for the interview). Admittedly, the Government Order dated 22.08.2013 is after the date of recruitment notification dated - 10 - WA NO.200140 OF 2022 03.08.2012. However, the said Government Order dated 22.08.2013 is much prior to the date of written examination and the interview. The subsequent Government Order does not change the qualification provided in the recruitment notification to the post in question, the change in the order dated 22.08.2013 is only for the procedure for recruitment. Admittedly, the written examination was conducted on 27.10.2014 and the interview on 03.01.2015 which are subsequent to the order dated 22.08.2013. The change brought by the respondent is not a change with regard to the qualification as such however it is only with regard to the process of selection which would not prejudice the candidates in any way and it would not violate Article 14 of the Constitution of India. The appellant has failed to point out any arbitrariness in the process of selection nor is he able to demonstrate that there is no transparency in the selection process calling for interference in this appeal. The contesting respondents have followed the procedure - 11 - WA NO.200140 OF 2022 strictly as per the Government Order dated 22.08.2013 which cannot be found fault with. 11. The Hon’ble Supreme Court in the case of Tej Prakash Pathak and others referred supra has held as under: “20. The discernible ratio in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] is that the criterion for selection is not to be changed after completion of the selection process, though in absence of rules to the contrary the Selection Committee may fix minimum marks either for written examination or for interview for the purposes of selection. But if such minimum marks are fixed, it must be done before commencement of selection process. This view has been followed by another three-Judge Bench of this Court in Ramesh Kumar v. High Court of Delhi [Ramesh Kumar v. High Court of Delhi, (2010) 3 SCC 104 : (2010) 1 SCC (L&S) 756] wherein the law on the issue has been summarised thus : (SCC p. 109, para 15) “15. … in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum benchmarks for written test as well as for viva voce.” 21. What is important in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] is that the minimum marks for the interview was fixed after the - 12 - WA NO.200140 OF 2022 interviews were over. In that context, it was observed: (a) that the game was played under the rule that there was no minimum marks for the interview, therefore introduction of the requirement of minimum marks for interview, after the entire selection process consisting of written examination and interview was completed, would amount to changing the rules of the game after the game was played; and (b) if the interviewers had to proceed on the basis that there were minimum marks to be secured in the interview for being considered for selection and that the marks awarded by them would have the effect of barring or ousting any candidate from being considered for selection, the awarding of marks might have been markedly different. The above observation (b) lends credence to the submission made before us that a change in the eligibility cut off, after evaluation is done, denies the evaluator an opportunity to modulate the marks for placing the candidate in a category to which he/she, in the view of the evaluator, is entitled to be placed. 22. In the reference order the correctness of the decision in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] has been doubted on two counts : (a) if the principle laid down in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] is applied strictly, the High Court would be bound to recruit 13 of the “best” candidates out of the 21 who applied irrespective of their performance in the examination held, which would not be in the larger public interest or the goal of establishing an efficient administrative machinery; and (b) the decision of this Court in Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) - 13 - WA NO.200140 OF 2022 488] was neither noticed in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] nor in the decisions relied upon in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841]. 23. Insofar as the first reason to doubt K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] is concerned, we are of the view that the apprehension expressed in the referring order that all selected candidates regardless of their suitability to the establishment would have to be appointed, if the principle laid down in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] is strictly applied, is unfounded. Because K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] does not propound that mere placement in the list of selected candidates would confer an indefeasible right on the empanelled candidate to be appointed. The law in this regard is already settled by a Constitution Bench of this Court in Shankarsan Dash in the following terms: "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or - 14 - WA NO.200140 OF 2022 any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted." 26. A close reading of the judgment in Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488] would disclose that there was no change in the rules of the game qua eligibility for placement in the select list. There the select list was prepared in accordance with the extant rules. But, since the extant rules did not create any obligation on the part of the State Government to make appointments against all notified vacancies, this Court opined that the State could take a policy decision not to appoint candidates securing less than 55% marks. With that reasoning and by taking into account that appointments made were of top seven candidates in the select list, who had secured 55% or higher marks, this Court found no merit in the petition of the writ petitioners. On the other hand in K. Manjusree(supra), the eligibility criteria for placement in the select list was changed after interviews were held which had a material bearing on the select list. Thus, Subash Chander Marwaha (supra) dealt with the right to be appointed from the select list whereas K. Manjusree (supra) dealt with the right to be placed in the select list. The two cases therefore dealt with altogether different issues. For the foregoing reasons, in our view, K. Manjusree (supra) could not have been doubted for having failed to consider Subash Chander Marwaha (supra). 42. We, therefore, answer the reference in the following terms: 1. Recruitment process commences from the issuance of the advertisement calling - 15 - WA NO.200140 OF 2022 for applications and ends with filling up of vacancies; 2. Eligibility criteria for being placed in the select list, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non- arbitrariness; 3. The decision in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] lays down good law and is not in conflict with the decision in Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488] . Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488] deals with the right to be appointed from the select list whereas K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] deals with the right to be placed in the select list. The two cases therefore deal with altogether different issues; 4. Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non- discriminatory/non-arbitrary and has a - 16 - WA NO.200140 OF 2022 rational nexus to the object sought to be achieved; 5. Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the rules are non- existent, or silent, administrative instructions may fill in the gaps; 6. Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.” 12. The aforesaid decision of the Hon’ble Supreme Court laid down the law that the recruitment process commences from issuance of advertisement calling for application and ends with appointment. The eligibility criteria notified at the commencement of the recruitment process cannot be changed midway through the recruitment process unless the extant rules so permit. In the instant case, the eligibility criteria was never changed by the Government Order dated 22.08.2013 and it is only the process of selection that was changed after the - 17 - WA NO.200140 OF 2022 notification for selection of the post and the said change was brought much prior to the written examination and the interview. Admittedly, the recruitment notification dated 03.08.2012 prescribed eligibility criteria i.e., any degree from a recognized University with a minimum of 50% marks along with having computer proficiency. The reference No.4 answered by the Hon’ble Supreme Court in the aforesaid case held that the recruiting body subject to the rules may devise appropriate procedure for bringing the recruitment process to its logical end. However, the procedure so adopted should be transparent, non- discriminatory, non-arbitrary and should have a rational nexus to the object sought to be achieved. In the instant case, we do not find any arbitrariness, discriminatory act or non-transparent procedure in selection of the posts in question. The contention of the appellant that the ‘Rule of the Game’ has been tinkered with during the process of selection has no merit and accordingly, rejected. The decision relied by the appellant in the case of State of Bihar and others vs. Mithilesh Kumar has no application - 18 - WA NO.200140 OF 2022 to the facts and circumstances to the case on hand. The Constitution bench of the Hon’ble Supreme Court in the case of Tej Prakash Pathak and others referred supra has laid down the law with regard to the issue that the rules of the game cannot be changed midway. 13. The Hon’ble Supreme court in the case of State of Uttar Pradesh vs. Karunesh Kumar referred supra has held as under: “32. The respondents have also placed reliance on the decision of this Court in the case of K. Manjusree (supra). However, in our considered view, the facts of the aforesaid decision are quite different from the present case. A change was introduced for the first time after the entire process. was over, based on the decision made by the Full Court qua the cut off. Secondly, it is not as if the private respondents were non- suited from participating in the recruitment process. The principle governing changing the rules of game would not have any application when the change is with respect to selection process but not the qualification or eligibility. In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process. It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person suitable for a job.” - 19 - WA NO.200140 OF 2022 14. The Hon’ble Supreme Court in the aforesaid decision held that the principle governing changing the rules of the game would not have any application when the change is with respect to selection process, but not the qualification or eligibility. In the instant case, there is no change in the qualification or the eligibility, making the appellant ineligible and the change brought is only with regard to the process of selection. 15. The material available on record further indicates that the appellant has without any objection appeared for the written examination and interview conducted by the selection authority which is admittedly after the Government Order dated 22.08.2013. Hence, he cannot now turn around and say that there is an improper procedure followed by the authority in selecting the candidates for SDC post. Admittedly, the respondent No.2 has secured more marks than the appellant in the selection process which has been rightly considered by the learned Single Judge in the impugned order. We do not find any error or perversity in the finding recorded by the - 20 - WA NO.200140 OF 2022 learned Single Judge calling for any interference in this appeal. 16. For the aforementioned reasons, we proceed to pass the following: ORDER i) Writ Appeal is devoid of merits and accordingly, rejected. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE MCR CT: PS