SRI. SHIVANANJE GOWDA B.N. v. SRI. SURALKAR VIKAS KISHOR, IAS EX-SECRETARY, KARNATAKA PUBLIC SERVICE COMMISSION - PARK HOU

(BY SRI. P.S. RAJAGOPAL, SENIOR COUNSEL FOR SRI. PRAKASH K.M., ADVOCATE) ...ACCUSED THIS CCC IS FILED UNDER ARTICLE 215 OF CONSTITUTION OF INDIA, READ WITH SECTIONS 11 AND 12 OF THE CONTEMPT OF COURTS ACT, 1971, PRAYING TO INITIATE AND TAKE APPROPRIATE ACTION AGAINST THE ACCUSED FOR DELIBERATE DISOBEDIENCE OF THE DIRECTIONS ISSUED BY THIS COURT IN ITS FINAL ORDER DATED 21.04.2022 VIDE ANNEXURE-A, PASSED IN W.P.No.7095/2022 (S-KSAT) AND PUNISH THEM FOR THE DELIBERATE CONTEMPT THAT THEY HAVE COMMITTED BY CONTUMACIOUS CONDUCT. THIS CCC HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON

18.12.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL - 3 CAV JUDGMENT (PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) This Contempt of Court Case is filed alleging deliberate disobedience of the directions contained in Annexure-A, Order dated 21.04.2022 passed by this Court in Writ Petition No.7095/2022 (S-KSAT).

2. We have heard Shri. Angad Kamath, learned counsel appearing for the complainant, Shri. P.S. Rajagopal, learned senior counsel as instructed by Shri. Prakash K.M, learned advocate appearing for accused No.1 and 2.

3. The facts of the case are as follows:- The Karnataka Public Service Commission (KPSC) issued Recruitment Notification dated 04.02.2016 to fill up 150 vacant posts of Motor Vehicle Inspectors by giving age relaxations to candidates who had applied in response to the previous Notification issued the year 2011. The complainant submitted his online application enclosing relevant certificates as prescribed. After being eligible in the competitive examination conducted by the KPSC, on

04.12.2018, the KPSC called upon the complainant to - 4 participate in the verification of original documents. On

21.01.2019, the complainant appeared for the Physical Fitness Test conducted by the Bowring and Lady Curzon Hospital, despite his illness due to fever and eye infection. He addressed a request letter to the Medical Officer, Bowring and Lady Curzon Hospital expressing his inability to fully cooperate in the Medical Test due to illness. The KPSC has published the provisional select list on

04.07.2019 and a list of rejected candidates on 05.07.2019 and in the said rejection list, the complainant's name was mentioned at Sl.No.878 assigning the reason as "not qualified in medical test". The complainant submitted a detailed representation to the KPSC against the Provisional Select List and later he approached the Karnataka State Administrative Tribunal (KSAT) challenging his rejection as per the rejection list. On 16.07.2021, the KSAT dismissed the Application No.3260/2020 filed by the complainant. Subsequently, the complainant preferred Review Application No.93/2021, which was also dismissed on 10.01.2022. Aggrieved by this, the Complainant preferred the Writ - 5 Petition No.7095/2022, seeking to set aside the Order dated

16.07.2021 passed the KSAT in Application No.3260/2020 and the Order dated 10.01.2022 passed in Review Application No.93/2021. The petitioner sought for a direction to respondents No.1 and 2 to consider the Medical Certificates dated 06.02.2021, 27.02.2021 and 03.04.2021 and to consider his candidature in the selection process pursuant to the Recruitment Notification dated 04.02.2016 on the basis of comparative merit under Category-3A Rural posts and issue an appointment order with all consequential benefits on par with other selected candidates. The Division Bench of this Court by order dated

18.04.2022 had directed the petitioner to present himself before the Director of Minto Ophthalmic Hospital, Bengaluru on 20.04.2022 and directed the hospital authorities to expedite the test including the height test and forward the report to the learned High Court Government Pleader. By the report submitted pursuant thereto, this Court observed that the petitioner satisfied the eligibility and medical - 6 qualifications prescribed by the KPSC for the post of Motor Vehicle Inspector. This Court also found that the rejection of candidature of the petitioner was solely based on an erroneous assessment by the Medical Board, Bowring and Lady Curzon Hospital. Further, this Court held that the rejection of the candidature of the petitioner by the KPSC on the basis of incorrect Medical Report could not be sustained.

4. Thereafter, the directions issued by this Court which are alleged to have been disobeyed were as follows:- "i) The writ petition is allowed. ii) The impugned order passed by the KSAT dated 16.07.2021 made in Application No.3260/2020

10.01.2022 made in Review Application No.93/2021 are hereby quashed. iii) The order passed by the KPSC rejecting the candidature of the petitioner for the post of Motor Vehicle Inspector by the rejection list dated 05.07.2019 is in violation of Articles 14, 16 and 21 of the Constitution of India. iv) The first respondent-KPSC is directed to reconsider the claim of the petitioner for the post of Motor Vehicle Inspector as he has fulfilled the eligibility of minimum physical standard test under the Rules with regard to - 7 the height and the vision, as per the report stated supra and proceed in accordance with law. v) A copy of this order shall be forwarded to the Chief Secretary, Government of Karnataka to constitute a permanent Medical Board for the selection of candidates by the KPSC in order to avoid future complications like the present case, in the interest of justice."

5. The learned counsel appearing complainant submits that the complainant's name was omitted from the select list only because he was found medically unfit for the selection. Thereafter, on the basis of the directions issued, the Review Medical Board was conducted the test and the complainant was found medically fit. It was in the said circumstances that the writ petition was disposed of. It is contended though complainant had all the eligibility to be appointed, he has still not been appointed, raising a contention that he did not secure the cut off marks required for inclusion in the select list. It is further contended that this contention is only a desperate attempt by the accused to get over the directions issued by this Court and that such contentions had been - 8 raised before this Court at the writ petition stage and had been negated. It is therefore contended that the refusal on the part of the accused to appoint the complainant is a clear and deliberate contempt of the orders and authority of this Court.

6. It is further submitted that the plea of the accused is that the endorsement rejecting the candidature of the complainant is not on the reason that he failed to comply with the Physical Test or the Vision Test, but it is on the basis of comparative merits, that is, the complainant secured less marks than the cut off ones. This contention has been specifically considered by this Court in the interim order dated 03.10.2023 wherein it was observed as under:- "6. At this point of time, learned counsel for the accused also made an attempt to submit before us that the Endorsement rejecting the candidature of the complainant is not on the reason that he failed to comply with the Physical Test or the Vision Test, but it is on the basis of comparative merits i.e., the petitioner secured less marks than the cut off ones. If this was the factual aspect, KPSC which was a respondent could have invited the attention of the Division Bench to this particular aspect. If that was done certainly, the order of the Division Bench would have been different. The Division - 9 Bench would have not have even undertaken the exercise of assessing petitioner's claim on the Physical Test. At the cost of repetition, we state that, if the KPSC had invited attention of the Division Bench that the petitioner is a less meritorious candidate or he is not complying with the criteria of securing at least the cut-off marks, finding to that effect could have been recorded in the body of the Order. But perusal of record shows that this point was neither urged before the Administrative Tribunal nor before the Division Bench; only now this is raised as a ground for rejection of candidature of the complainant.

7. Thus, we are of the considered opinion that in spite of giving sufficient opportunity for showing bona fide intention to comply with the order of this Court in letter & spirit, the accused has not complied with the order by raising various technical points. As such, we are left with no choice but to summon the accused to remain present in this Court for framing charges against him.

8. Accordingly, list the petition on 08.11.2023 for framing of charges."

7. It further submitted the accused challenged this interim order before the Apex Court in SLP (C) No.24400/2023 and the same was dismissed as withdrawn on 06.11.2023.

8. The learned senior counsel appearing for accused No.1 and 2, on the other hand, contends that a selection - 10 process to a regular vacancy in Government service can be undertaken only complying with the clear principles of comparative merits as is contemplated under Articles 14 and 16 of the Constitution of India. It is contended that the question of eligibility to participate in the selection and right to get appointment are completely different and distinct and that it is only if the eligible person has the comparative merits to be included in the select list at a position which is included in the select list on the basis of the cut off marks obtained by him that he would be entitled to be included in the select list and for selection. It is submitted that in the instant case, the complainant has claimed reservation at 3A/RL and had obtained only 121.2500 marks with a percentage of 30.3125%. It is stated that the cut off marks pertaining to the last selected candidate under the said reservation was 45.4375% and the complainant would have no right to be appointed since no person who has secured less than 45.4375% of marks has been appointed under the 3A/RL Category. - 11

9. The learned senior counsel appearing for accused No.1 and 2 places reliance on the following judgments and contends that, in case, there is no willful disobedience of the Order of the Court, positive directions cannot be issued in Contempt Proceedings:- • J.S. Parihar v. Ganpat Duggar and others reported in (1996) 6 SCC 291; and • Midnapore Peoples' Co-operative Bank Ltd. and others v. Chunilal Nanda reported in (2006) 5 SCC 399.

10. Having considered the contentions advanced, we notice that though elaborate pleadings are on record, the question raised boils down to whether the complainant is entitled to appointment on the basis of the orders issued by this Court. Clearly this Court had directed the inclusion of the complainant in the select list at his eligible place treating him as being qualified for appointment on finding that he was medically fit for such appointment. Medical fitness for appointment is only one of the eligibility conditions contained in the Notification. The complainant would be eligible for inclusion in the select list only in case he has the - 12 merit and eligibility on the basis of the communal reservations as applied as well. In the instant case, it is the specific contention of the accused as stated before this Court in its reply statement at paragraph No.13, which reads as follows:- "13. The accused herein considered the candidature of the complainant in the light of the judgment passed by this Hon'ble Court in WP.No.7095/2022 and issued an endorsement on 18.05.2023, since the complainant has secured lesser marks than the cut of marks i.e., the marks secured by the last selected candidate in the said category. The following Tabular Column shows the marks secured by the complainant and the last selected candidates category claimed by complainant. Name of Complainant & Register No. Shivananjegowda B.N. 101232 Claimed reservation category percentage secured Competitive Examination of the Complainat 3A/RL Marks- 121.2500 in the Percentage- 30.3125% Cut-off pertaining to selected Last candidate under reservations (RPC) GM/RL-46.0625% GM/Others-49.1250% 3A/RL-45.4375% 3A/Others-45.8750% Hence, the complainant was not selected to the post of Inspector of Motor Vehicles. It is submitted that in spite of issuing the endorsement by the accused herein, the complainant has filed the present proceedings intended to get the complainant into the - 13 select list even though he did not process the required merit for selection.

11. We have noticed the Order passed by this Court in the contempt proceedings. It appears that this Court was of the prima facie view that the endorsement issued by the accused on 18.05.2023 at Annexure-R8 stating that the Complainant did not have the comparative merit to be included in the select list was not found to be an acceptable proposition. The Division Bench found that the grounds raised for rejection of candidature of the complainant were not urged before the KSAT or before this Court considering the application. On these grounds, the endorsement was found to be not proper compliance of the directions of the Division Bench of this Court. The matter was listed for framing of charges. Though an SLP was attempted against the order of this Court dated 03.10.2023, the same was dismissed as withdrawn. Thereafter, the matter has been listed on several occasions. It appears that this Court, considering the Contempt of Court Case, had decided to await the pronouncement of orders in W.P.No.21217/2022, where the select list issued by the KPSC itself had been - 14 challenged. Thereafter, the matter has been posted before us again.

12. Having considered the contentions advanced, we are clearly of the view that the fulfillment of the physical requirements for appointment cannot, per se, be a ground for the complainant to contend that he should be appointed from a select list. It is only if he has the comparative merit, to be so appointed, that he would have any entitlement for such appointment. The direction issued by this Court in Annexure-A was only to consider him as eligible in terms of the Notification. The accused having considered candidature of the complainant treating him to have been medically fit to participate in the selection procedure have clearly stated that he did not have the comparative merit to be included in the select list or be appointed to the post.

13. We notice that the challenge raised against the select list has been considered and rejected by this Court. We further take note of the specific contention urged by the accused that the complainant did not have the comparative merit to be included in the select list even if he were to be - 15 found to be fully eligible for being considered in the selection. It is specifically submitted that the percentage of marks obtained by the complainant was only 30.3125% and that no person having cut off percentage of less than

45.4375% marks had been included in the select list under the 3A/RL category.

14. In the above circumstances, we are of the opinion that the complainant has not succeeded in establishing that there is any willful disobedience by the accused herein of the orders of this Court in Annexure-A. The Contempt of Court Case therefore fails and the same is accordingly dismissed. Notice, if any, issued shall stand discharged. Pending Interlocutory applications shall stand disposed of. cp* Sd/- (ANU SIVARAMAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE