SRI M. PURANDARA AND ORS.versusMAHADESHA S. AND ORS.

A                       SRI M. PURANDARA AND ORS.
                                    v.
                          MAHADESHA S. AND ORS.

                                AUGUST 23, 2005
B
                   [ARIJIT PASAYAT AND H.K. SEMA, JJ.]

          Constitution of India, 1950-Article 226-Jurisdiction under-Scope-
    Writ petition against the view of Tribunal on two specific issues pertaining
    to selection of school teachers-Held : Subject-matter of adjudication could
C   not have been enlarged by the High Court at the instance of the petitioners.

          Several Original Applications were filed before the Administrative
    Tribunal questioning correctness of the select list published pursuant to
    issue of notification for filling up posts of Assistant Master/Primary
D   School teachers. Tribunal directed the selecting authority to prepare a
    fresh provisional list, call for objections as contemplated in the said
    notification, and thereafter publish the select list. Writ petitions were
    filed before the High Court questioning the Tribunal's decision on two
    specific issues pertaining to the selection. firstly, the question of rural
    weightage and secondly whether the provisional list published earlier
E   could be treated as the final list.

          High Court upheld the view of Tribunal on the said two issues.
    However, it was urged before the High Court by the writ petitioners that
    the selection process was vitiated and some persons who were otherwise
F   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, that this was
    a fresh cause of action emanating from the final selection and had
    nothing to do with the controversy before the Tribunal. The High Court
G   felt that there was some justification in the objection. It, however in the
    broader interests of justice and keeping in view the need to avoid
    litigations 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 selec!ion were
    passed.
H                                                                                  •
                                        812
              SRI M. PURANDARA v. MAHADESHA S.                       813

     The question which arose in this appeals is that whether the High       A
Court adjudicated an issue which was not the subject-matter of chal-
lenge before it and in any event persons who are effected by the decision
were not impleaded as parties.

     Disposing of the appeals, the Court
                                                                             B
     HELD: 1.1. The writ petitioners had not questioned the selection of
the persons who are affected by he 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-       C
matterofadjudication beforethe High Court would not have been enlarged
by the High Court at the instance of the writ petitioners. [817-B-C[

     1.2. The direction given for filing affidavits and the consequential
action to be taken thereon cannot be maintained and are vacated. This
Court has not expressed any opinion on the correctness or otherwise of       D
the view expressed by the High Court. It has 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 that some
of the appellants have got employment elsewhere and have no interest
in those appeals. The appellants shall file a list of such persons before
the concerned authorities. The cases of all those who are eligible shall     E
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. [818-B-C-D]

      V.K. Majotrav. Union ofIndia, [2003] 8 SCC 40; State a/Maharashtra
v. Jalgaon Municipal Council, [2003] 9 SCC 731; The President,               F
Poornathrayisha Seva Sangham, Thripunithura v. K. Thilakan Kavenal and
Ors., (2005) 2 SCALE 1 and Secretary to Govt. and Another v. M Senthil
Kumar, [2005] 3 SCC 451, relied on.

     CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2288-2290
of 2002.
                                                                             G

     From the Judgment and Order dated 11.9.2001 of the Karnataka High
Court in W.P. Nos. 26943-26945 of 2001.

                                  WITH
                                                                             H
    814                     SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A            C.A. Nos. 2291-2293, 2294-2315 and 2316-2318 of 2002.

        L. Nageswara Rao, V. Lakshmi Narayana, Jayant Muthuraj, G.
    Ramakrishna Prasad, Kashi Visveswar, Sharan Takkar, Dinesh Kumar Garg
    and Ashok Sharma for the Appellants.

B        Raju Ramachandran, Ashwath Narayana, Naveen R. Nath, Ms. Lalit
    Mohini Bhat, Ms. Anitha Sahenoy, Ms. Hetu Arora, Rana Mukherji,
    Anil Kr. Mishra, A. Rohan Singh, Sanjay R. Hegde, S.N. Aswatha Narayan,
    A.K. Upadhyay. B.K. Choudhary and E.C. Vidyasagar for the
    Respondents.
c
             The Judgment of the Court was delivered by
                                                                                      ..
         ARIJIT PASAYAT, J.: Challenge in these appeals is to the judgment
    of a Division Bench of the Karnataka High Court. The basic grievance of
D   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 irr..pleaded as parties.

             Factual background which is almost undisputed needs to be noted in
    brief.
E
          By notification dated 25.2.1999 the Deputy Director for Public Instruc-
    tion, Mandya District, Mandya called for applications from qualified can-
    didates for tilling up 918 posts of Assistant Master/Primary school teachers
    in Mandya di<;;trict and fixed 31.3. I 999 as the last date for receipt of
    applications. The notification stipulated that the application should be pre-
F   sented 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. v. State of Karnataka and
    Ors.) challenging the aforesaid stipulations. The High Court by order dated
G   28. 7.1999 set aside the aforesaid conditions. During pendency of the writ
    petitions a provisional list of candidates selected was prepared and pub-
    lished 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 appli-
    cations upto 31.10.1999. In the meantime the Karnataka High Court held
H   that I 0% weightage given to the rural candidates was unconstitutional.
         SRI M. PURANDARA v. MAHADESHA S. [PASAYAT, J.]                  815

Judgment was rendered by a learned Single Judge. A Division Bench of the         A
High Court clarified on 16.12. I 999 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       B
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 rural weightage. The select list was published on 4.7.2000.
Several Original Applications were filed before the Karnataka Administra-
tive Tribunal, Bangalore (in short the 'Tribunal') questioning correctness of
the clarification dated 23.5.2000 and the select list published. Prayer was      C
made to direct re-doing of selection process by considering all the applicants
a\varding 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    D
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 imp leaded
as respondents and they supported the stand of State and its functionaries.      E

      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     F
      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 standanis could be         G
      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    H
    816                    SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A   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 cau be given to any of the candidates. Grant of rural
B   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
c   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
D   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 persons who were otherwise
E    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
F   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
G   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
H   in view the law laid down by the High Court in the connected matters and
        SRI M. PURANDARA v. MAHADESHA S. [PASAYAT, J.]                     817

in view of the decision of this Court. Therefore, merely because they were          A
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.
                                                                                    B
     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           C
High Court at the instance of the writ petitioners.

     In V.K. Majotrav. Union ofIndia, [2003] 8 SCC 40 this Court observed
as under:
                                                                                    D
      " .... 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 sec             E
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 ..... "
                                                                                    F
     Recently, in The President, Poornathrayisha Seva Sangham,
Thripunithura v. K. Thilakan Kavenal & Ors., (2005) 2 SCALE I in para
9 it was observed as under:

         "Above being the position, we feel that nothing further remains to
         be done in this appeal except noticing that certain observations           G
         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        H
    818                   SUPREME COURT REPORTS [2005) SUPP. 2 S.C.R.

A            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.
B
          Therefore, the direction given for filing affidavits and the consequen-
    tial action to be taken thereon cannut 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
C   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
D   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.

    B.B.B.                                                   Appeals disposed of.