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CASE NO.: Appeal (civil)  2288-2290 of 2002

PETITIONER: Sri M. Purandara & Ors.                                          

RESPONDENT: Mahadesha S. and Ors.                                    

DATE OF JUDGMENT: 23/08/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T [With Civil Appeal Nos.2291-2293/2002, 2294-2315/2002 and  2316-2318/2002)   

ARIJIT PASAYAT, J.  

       Challenge in these appeals is to the judgment of a  Division Bench of the Karnataka High Court.  The basic  grievance of the appellants is that the High Court  adjudicated an issue which was not the subject-matter of  challenge before the High Court and in any event persons who  are affected by the decision were not impleaded as parties.    

       Factual background which is almost undisputed needs to  be noted in brief.

       By notification dated 25.2.1999 the Deputy Director for  Public Instruction, Mandya District, Mandya called for  applications from qualified candidates for filling up 918  posts of Assistant Master/Primary school teachers in Mandya  district and fixed 31.3.1999 as the last date for receipt of  applications. The notification stipulated that the  application should be presented in person by the candidate  on or before 5 p.m. on 31.3.1999 and the applicant should be  ordinarily resident of Mandya district.  Writ petitions were  filed by some persons belonging to Mandya district (Writ  petition nos.16023-16072/1999 Smt. H. Girija and Ors. vs.  Stat of Karnataka and Ors.) challenging the aforesaid  stipulations. The High Court by order dated 28.7.1999 set  aside the aforesaid conditions. During pendency of the writ  petitions a provisional list of candidates selected was  prepared and published on 14.6.1999. In view of the judgment  passed in writ petition nos.16023-16072/1999 a notification  was issued extending the time for making applications upto  31.10.1999.  In the meantime the Karnataka High Court held  that 10% weightage given to the rural candidates was  unconstitutional.  Judgment was rendered by a learned Single  Judge.  A Division Bench of the High Court clarified on  16.12.1999 that the decision would not affect any  appointment or selection during the pendency of the writ  appeal.  A Circular dated 22.12.1979 was issued giving the  instructions as to the manner of implementation of the  Division Bench’s decision. On 23.5.2000 it was clarified  that candidates in the provisional list dated 14.6.1999  would be entitled to rural weightage and candidates who  applied pursuant to the decision in writ petitions nos.  16023-16072/1999 dated 28.7.1999 would not be entitled to

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rural weightage. The select list was published on 4.7.2000.   Several Original Applications were filed before the  Karnataka Administrative Tribunal, Bangalore (in short the  ’Tribunal’) questioning correctness of the clarification  dated 23.5.2000 and the select list published.  Prayer was  made to direct re-doing of selection process by considering  all the applicants awarding rural weightage, inviting  objections from the affected candidates and thereafter  publish the final select list. The State and its  functionaries contended that the procedure followed was in  order. The rural weightage was modified, the provisional  list dated 14.6.1999 was kept in tact and after examining  the applications filed during the extended time the final  list was published which was in accordance with the High  Court’s judgment in Girja’s case referred to above. It was  also contended that there was not much difference between  the provisional list and the list published on 4.7.2000.  A  large number of candidates applied to the Tribunal for being  impleaded as respondents and they supported the stand of  State and its functionaries.   

       According to the Tribunal the issues which required  examination were:

(a)     whether the rural weightage can be extended to any  selection made after 26.11.1999 i.e. the date of the  judgment in writ appeal nos.5807 of 1998. (b)     whether the list dated 14.6.1999 could be regarded as a  selection list entitling the candidates mentioned  therein to rural weightage. (c)     whether in an incomplete selection process, two  standards could be adopted for selection of candidates. (d)     whether the selection list dated 4.7.2000 can be  maintained.

       The Tribunal held that if the final list was not  published on or before 26.11.1999, there was no way by which  the select list could be published with the eligible  selected candidates being given rural weightage. With  reference to Girja’s case (supra) it was held that in the  said case all that was said was that processing undergone  shall not be nullified. But, it did say that rural weightage  can be given to any of the candidates. Grant of rural  weightage was not in issue in Girja’s case (supra) and,  therefore, there was no question of any rural weightage, and  adopting two standards for selection of candidates.   Finally, it was held that the clarification dated 23.5.2000  was contrary to the decision of the Division Bench in  Basavraj Nagoor’s case and was without authority of law.   The selecting authority was directed to prepare a fresh  provisional list, call for objections as contemplated in  clause 11 of the notification dated 25.2.1999, and  thereafter publish the select list.  Exercise was directed  to be undertaken within six months. Writ petitions were  filed before the High Court questioning Tribunal’s decision.  The High Court after hearing the parties noted two  questions, firstly, the question of rural weightage and  secondly whether provisional list published on 14.6.1999 to  be treated as final list.  The correctness of the view  expressed by the Tribunal on these issues was the subject- matter of challenge in the writ petitions.  It was held that  the Tribunal’s view was in order.   

       However, it was urged before the High Court by the writ  petitioners that the selection process was vitiated and some

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persons who were otherwise ineligible had been selected and  their names have been placed in the select list.  On behalf  of the respondents before the High Court it was urged that  such a plea was not raised before the Tribunal and there was  specific pleading to this effect and in any event this was a  fresh cause of action emanating from the final selection and  that had nothing to do with the controversy before the  Tribunal. The High Court felt that there was some  justification in the objection. It, however, felt that in  the broader interests of justice, keeping in view need to  avoid litigations certain directions were necessary to be  given to do complete justice. It gave certain directions  which the appellants submit were not sustainable. They were  not parties in the writ petitions, were not heard but orders  which prejudicially and adversely affect their selection  were passed.  

       In response, learned counsel for the respondents who  are writ petitioner before the High Court submitted that the  High Court is not justified in saying that there was no  specific challenge and in any event the High Court kept in  view the law laid down by the High Court in the connected  matters and in view of the decision of this Court.   Therefore, merely because they were not parties they cannot  make any grievance particularly when the directions given  were with a view to shorten litigations and to effectuate  the ultimate purpose for which the notifications were issued  and were intended to give full effect to the earlier  decisions of the High Court.

       We find that the writ petitioners had not questioned  the selection of the persons who are affected by the High  Court’s impugned order.  They were not applicants before the  Tribunal. On the contrary they questioned correctness of the  view expressed by the Tribunal allowing the original  applications filed by some of the respondents. Therefore,  the subject-matter of adjudication before the High Court  could not have been enlarged by the High Court at the  instance of the writ petitioners.   

       In V.K. Majotra v. Union of India (2003 (8) SCC 40)  this Court observed as under:

"....Counsel for the parties are right in  submitting that the point on which the writ  petition has been disposed of was not raised  by the parties in their pleadings. The  parties were not at issue on the point  decided by the High Court....."   

       In State of Maharashtra v. Jalgaon Municipal Council  (2003 (9) SCC 731) this Court at page 757 observed as under:

"..In the absence of any challenge having  been laid, the constitutional validity of the  amendment cannot be gone into....."

       Recently, in The President, Poornathrayisha Seva  Sangham, Thripunithura v. K. Thilakan Kavenal & Ors. (2005  (2) SCALE 1) in para 9 it was observed as under:

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"Above being the position, we feel that  nothing further remains to be done in this  appeal except noticing that certain  observations made, as regards the functioning  of the appellant-society and its credibility  were unnecessary. For the purpose of  adjudication of the dispute before the High  Court which only related to the permission  granted to use Oottupura, other observations  and views expressed by the Division Bench  are, therefore, treated as inoperative.   Since disputed facts were involved, the High  Court should not have gone into them even in  respect of the primary grievances of the writ  petitioner".

                The aforesaid position was recently highlighted in  Secretary to the Govt. and Another v. M. Senthil Kumar (2005  (3) SCC 451).           Therefore, the direction given for filing affidavits  and the consequential action to be taken thereon cannot be  maintained and are vacated.  We make it clear that we have  not expressed any opinion on the correctness or otherwise of  the view expressed by the High Court.  We have interfered  only on the ground that such an issue was not before the  Tribunal and nobody had questioned in this regard before the  Tribunal. It is pointed out by learned counsel for the  appellants that some of them have got employment elsewhere  and have no interest in those appeals.  The appellants shall  file a list of such persons before the concerned authorities  within three weeks from today.  The cases of all those who  are eligible shall be considered in respect of the  consequential vacancies.  Cases of the respondents shall be  taken up on the basis of their merit to decide whether they  can be appointed.         The appeals are accordingly disposed of with no order  as to costs.