After Ten Years, The Karnataka HC Sets Aside Appointment Of AGP Saying It Was Void Ab Initio [Read Judgment]

A division bench of Justice G Narendar and Justice M Nagaprasanna said "It is highly regrettable that holders of the public office, both big and small, have forgotten that the offices entrusted to them are the sacred trusts. Such offices are made, to use and not abuse. It may not be too much for us to draw inference that the appointment of the 3rd respondent (Ashok Kumar) was motivated by extraneous considerations. The deeds of this nature by a Selection Authority are inconceivable in law. It is beyond cavil, that the appointment of the 3rd respondent is conceived in fraud and delivered in deceit."

Case background:

Department of Prosecution and Government Disputes, issued a recruitment notification on 18.6.2009, under the quota reserved for the Scheduled Castes, both the applicant (Revanna P C) and the 3rd respondent ( Ashok Kumar) applied. Consequently, upon the scrutiny of the applications, the written test was held on 7.11.2009 and 8.11.2009, after which, interview/viva-voce was conducted.

Later, a list of candidates and the total marks obtained by them, was notified. In Which Revanna was at Sl. No.281 and his marks was shown as 86.20. Likewise, Kumar was at Sl. No.691 with his marks at 84.40. Pursuant to it a provisional selection list was notified, on April 12, 2010. Surprisingly, the name of the Revanna was not found in the said list, but the name of Kumar figured at Sl. No.130, and his marks were shown to be 87.40, as against 84.40 that had been published, when the marks were initially notified.

Revanna made representation/objections which was not considered and on that grievance, he then approached the Tribunal. By an order passed, after passing off nine years, on October 24, 2019, the tribunal set aside the appointment notification in favour of Kumar.

Petitioner argued:

Kumar, argued that "Tribunal has erred in quashing the provisional selection list insofar as it pertains to the appointment of the 3rd respondent and further directing that the candidature of the applicant be considered to the post of APP-cum-AGP within two months and other consequential directions. The finding of the Tribunal that his appointment was on account of systematic fraud by the Selection Authority, was without any basis, as the alteration of marks was only correction of a typographical error, and even if it be so, it was the Selection Authority that can be alleged to have indulged in fraud, in he was in no way responsible and he was an innocent participant in the selection process."

State argued:

State government also supported the petition by saying "That the order of the Tribunal is erroneous and contrary to the facts. It was well within the power of state to rectify the mistake that had crept in the case of the 3rd respondent and as a consequence of such rectification, the appointment was given to the 3rd respondent. It is further contended that the Tribunal could not have sat in judgment over the wisdom of the Selection Authority in selecting the 3rd respondent, as it was impermissible in law to do so and vehemently, contends that awarding of compensation of Rs.10 lakhs payable by the State to the applicant, is unwarranted and erroneous."

Original applicant argued:

The marks secured by him were, way higher than the marks secured by the 3rd respondent. In the marks list notified, which were a combination both written test and viva-voce, the name of the applicant was figured at Sl. No.281 with 86.20 marks and the 3rd respondent was shown at Sl.No.691 with 84.40 marks. The applicant has been denied appointment due to the illegal action of the Selection Authority, but for the inflated marks, the applicant would have been appointed as APP-cum-AGP and the 3rd respondent is the direct beneficiary of the fraud played by the Selection Authority.

The bench framed three points for consideration.

1. Whether the appointment of the 3rd respondent to the post of APP-cum-AGP was legal and valid ?

2. Whether the Tribunal was justified in interfering with the selection of the 3rd respondent and imposing the cost of Rs.10.00 lakhs upon the State Government to be paid to the applicant ?

3. Whether the appointment of the 3rd respondent be saved ?

As regards point 1, the court said "We hold that the appointment of the 3rd respondent as APP-cum-AGP was illegal and void ab-initio as he was not the candidate who had taken more marks than the applicant and the justification given by the Government with regard to the inadvertent mistake or a typographical error, is unacceptable to us."

The bench answered the third point in the negative, by saying that "The 3rd respondent is the direct beneficiary of the fraud committed by the Selection Authority. In a case of fraud of this nature, if we yield to the submission made by the learned Counsel for the 3rd respondent, it would be misplaced sympathy and yielding to such sympathy will defeat the cold logic of law. If a person is not entitled to a right in law, the consequence of denying such a right to him cannot be the botheration of the law Courts. The law Courts exist to enforce law and not to thwart law or to perpetuate illegality. The delay in disposal of the case before the Courts cannot be a ground to protect an appointment that was illegal from the inception. The Courts are to administer law as they find it however inconvenient it may be."

It added that "In the normal circumstances, in an appointment which is secured by fraud, this Court should require them to disgorge the benefits of these ill-gotten gains, but, here, a streak of sympathy has to be shown as the 3rd respondent has worked and earned his salary for the last ten years, now directing recovery of all the salary, would be improper. Hence, we hold our hands for ordering, any recovery of salary."

The court modified the order of the tribunal which directed State home department to pay a compensation to the original applicant by saying "The payment of cost of Rs.10 lakhs by the 1st respondent to the applicant is modified with a direction to the 1st respondent to pay the amount to the applicant, and then, identify the officers at the relevant point of time who were responsible for perpetration of such fraud, hold an enquiry, follow the due process of law, fix responsibility upon them and recover the same from those officers, so identified."

Case Details :    Ashok Kumar   
and   
Principal Secretary, Home Department, The Secretary, Asst Public Prosecutor cum Assistant Government Pleader, Selection Committee, Department of Prosecution and Government Disputes, Revanna P C  
Date of Decision: February 7, 2020. 
Bench Kalaburagi : Justice G Narendar and Justice M Nagaprasanna. 
Advocate For Petitioner: P Vilaskumar Marthand Rao
Advocate for respondent 1 & 2: Anuradha M Desai
Advocate For respondent 3: Thyagaraja S & R Padmanabha 

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