ORDER
1. The petitioner, in this petition, was one of the candidates for selection and appointment to the post of Police Sub-Inspector in the service of the Karnataka State. He sought for consideration of his application as a rural candidate and claimed the benefit often marks of rural weightage required to be allotted to a rural candidate. The petitioner being a Scheduled Caste candidate, also claimed appointment in respect of the post reserved for Scheduled Caste candidates.
2. On the basis of his performance both in the physical efficiency test and written test, the petitioner was called for viva voce on 27th of May, 1999. He had secured 82 marks in the written test and 17 marks in the viva voce, in all 99 marks. The third respondent, who was the last candidate selected to the post of Sub-Inspector of Police in respect of the post reserved for Scheduled Caste candidates, had secured 103 marks. However, though the petitioner is a rural candidate, it is not in dispute that the rural weightage of ten marks awardable to a rural candidate, was not awarded to the petitioner.
3. Sri Ranganatha Jois, learned Counsel appearing for the petitioner, strongly urged that the respondents have seriously erred in law in not allotting ten marks of rural weightage to the petitioner, which was required to be awarded to him in terms of Rule 3-B of the Karnataka Civil Services (General Recruitment) (Forty-third Amendment) Rules, 1994 (hereinafter referred to as “the rules”), since the petitioner is undisput-edly a rural candidate. He further submitted that if the petitioner were to be given ten marks of rural weightage, the total marks the petitioner would have secured, would be 109 as against 103 marks obtained by the third respondent; and in that event, the petitioner would have been selected as against the claim of the third respondent and several others who have secured lesser percentage of marks than the petitioner. Therefore, he submits that a direction may be issued to respondents 1 and 2 to include the name of the petitioner in the select list and appoint him as a Sub-Inspector of Police, if necessary, by setting aside the selection of the third respondent. He further pointed out that though Rule 3-B of the Rules, which provides for grant of rural weightage, has been struck down by this Court in the light of the direction given by the Division Bench in the order made in State of Karnataka and Others v Basavaraj Nagoor and Others, wherein the Division Bench has taken the view that the selection of such of those candidates, whose names are found in the select list, will not be affected, the petitioner is entitled for the reliefs sought for by him in this petition.
4. However, Sri M.B. Prabhakar, learned Counsel appearing for respondents 1 and 2, and Sri K. Gopal Hegde, learned Counsel appearing for respondent 3, strongly countering the argument of Sri Jois, submitted that the contention advanced on behalf of the petitioner that the petitioner is entitled for ten marks of rural weightage, is totally erroneous in law. They pointed out that since the petitioner was given the benefit often marks of rural weightage when his case was considered for the post of Police Constable in terms of the proviso given to Rule 3-B of the Rules, the petitioner was not entitled for the benefit often marks of rural weightage for the second time. Therefore, they submitted that the Selection Committee constituted did not rightly award ten marks of rural weightage to the petitioner. They further submitted that since Rule 3-B of the Rules, which mandates grant of ten marks of rural weightage, has now been struck down by this Court in the case of Basavaraj Nagoor v State of Karnataka and Another , which has been confirmed by the Division Bench in the case of Basavaraj Nagoor, supra, the petitioner is not entitled to seek for a direction to the respondents for grant of ten marks of rural weightage. It is their submission that since the name of the petitioner was not included in the select list on the date of striking down of Rule 3-B of the Rules, the petitioner is not entitled for the reliefs sought for by him in this petition. In support of this submission, Sri Hegde relied upon a decision of this Court in the case of Shailaja v Karnataka Public Service Commission and Others . It is the further submission of Sri Gopal Hegde that since the third respondent, who is also a Scheduled Caste candidate, has already undergone training for one year and if his appointment is struck down by this Court at this belated stage on the grounds urged by the learned Counsel for the petitioner, the third respondent will be put to irreparable injury and hardship. In this background, he pointed out that since Rule 3-B of the Rules has already been struck down by this Court, this Court should not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. He also submitted that at any event of the matter, if this Court comes to the conclusion that a direction is required to be given to respondents 1 and 2 to select and appoint the petitioner as a Sub-Inspector of Police, since undisputedly there are number of vacancies in the cadre of Sub-Inspector of Police, this Court can direct the respondents to select the petitioner without disturbing the appointment of the third respondent.
5. Sri Jois, in response to the submission made by the learned Counsel appearing for respondents 1 to 3 that since the rule in question has been struck down, the petitioner is not entitled for the reliefs, relying upon the decisions of the Supreme Court in the case of N.T. Devin Katti and Others v Karnataka Public Service Commission and Others and A.A. Calton v Director of Education and Others, submitted that the striking down of the Rule will not affect the selection process already commenced and made. It is his submission that the striking down of the rule must be understood as prospective in nature as the Division Bench of this Court has saved the selections already made. According to him, in the light of the judgment of the Supreme Court relied upon by him, the decision of this Court in the case of Shailaja, supra, does not lay down the correct law.
6. In the light of the rival contentions advanced by the learned Counsel appearing for the parties, the two questions that would arise for consideration in this petition, are:
(i) Whether, in terms of Rule 3-B of the Rules, the petitioner was entitled for the award of ten marks of rural weightage as claimed by him?
(ii) Even if it is held that the petitioner was entitled for the award often marks of rural weightage in terms of Rule 3-B of the Rules, whether the relief sought for by the petitioner should be denied to him on the ground that Rule 3-B of the Rules has been struck down by this Court?
7. The answer to the first question, referred to above, depends upon the interpretation to be placed on the proviso given to Rule 3-B of the Rules. Therefore, it would be useful to extract the relevant portion of Rule 3-B of the Rules, which reads as hereunder:
“3-B. Weightage of marks to rural candidates.–(1) Notwithstanding anything contained in these rules or in the Karnataka Civil Services (Direct Recruitment by Selection) Rules, 1973, or in any other rules made or deemed to have been made under the Karnataka Civil Services Act, 1978 (Karnataka Act No. 14 of 1990) in all direct recruitments to Group-C and Group-D posts in the State Civil Services, in respect of a rural candidate, a weigh-tage of.–
(i) Five per cent marks shall be added to the,–
(a) …..
(b) marks secured in the qualifying examination where the selection is based upon the marks secured in the qualifying examination and interview.
(c) …..
(ii) …..:
Provided that no weighiage shall be allowed to a rural candidate for whom a rural weightage has already been allowed in accordance with the rules of recruitment specially made in respect of any service or post”.
It is not in dispute that the rules of recruitment for the selection to the post of Police Constable does not provide for grant of rural weightage to a candidate whose case is being considered for selection to the post of a Police Constable. It is also not the case of the respondents that the petitioner was given rural weightage at the time of his selection as a Police Constable based on the Rules of Recruitment specially made for the purpose of selection to the post of Police Constable. Further, it is also not the case of the respondents that the Recruitment Rules framed providing for selection to the post of Sub-Inspector of Police, also provides for grant of marks towards rural weightage. However, it is the case of the respondents that under the very rules, the petitioner having already been given the rural weightage at the time of his selection to the post of Police Constable, he is not entitled for the benefit of rural weightage over and again. As noticed by me earlier, it is the case of the respondents that the benefit of rural weightage could be given only at the first stage of selection and not at the second or subsequent stages. Having given my anxious consideration to the contentions advanced by the learned Counsel appearing for the parties, while I am in agreement with the contention of Sri Jois that notwithstanding the fact that the petitioner was awarded marks towards rural weightage under the rules at the time of his selection to the post of Police Constable, he is entitled for the additional marks towards rural weightage at the time of his selection to the post of Sub-Inspector of Police, I am unable to accept the submission of the learned Counsel for the respondents that the petitioner was not entitled for the benefit of ten marks of rural weightage at the time of his selection to the post of Sub-Inspector of Police. In my view, what is prohibited under the proviso given to Rule 3-B of the Rules extracted above, is that no rural weightage can be given to a rural candidate, if the rural weightage has already been allowed in the rules of recruitment specially made in respect of any service or post. In other words, what is prohibited under the rules is that if the rules of recruitment specially made in respect of any service or post provide for award of rural weightage, the benefit of rural weightage is not permitted over and again on the basis of Rule 3-B of the Rules. The object of the rules was to help the rural candidate by awarding additional marks to bring them on par with other candidates. The rule intends to give the benefit of the rural weightage keeping in mind that rural candidates are placed in a disadvantageous situation on account of social, cultural and economic background and they are not in a position to compete with other candidates who seek selection to a post in State Civil Service. That being the object, the proviso given to the rules makes it specific and states that if the rules of recruitment specially made in respect of any service or post provide for the award of additional marks by way of rural weightage, such a candidate will not have the benefit of grant of rural weightage under the very rules. Therefore, the proviso given to Rule 3-B of the Rules, in my considered opinion, which prohibits the grant of rural weightage only in respect of the posts or service for which the rules of recruitment are specially made, specifically provides for grant of marks towards rural weightage and not in other cases. It does not prohibit the Selection Committee/Appointing Authority from granting rural weightage to a candidate at different stages of selection for different posts. Therefore, merely because the petitioner was granted the benefit of rural weightage at the time of his selection for the post of Police Constable, in my view, the petitioner could not have been denied the benefit of rural weightage provided under Rule 3-B of the Rules when his case was to be considered for selection to the post of Sub-Inspector of Police. If the intent of the Rule making Authority was to give the benefit of the rural weightage only at one stage of selection, the rule would have been explicit to that effect. On the other hand, the plain reading of the rules makes it clear that in all direct recruitments to Group-C and Group-D posts, a rural candidate is entitled for the benefit of rural weightage. Therefore, the rural weightage is required to be given in the case of all direct recruitments, unless the rules of recruitment specially made, specifically provide for award of marks towards rural weightage under the said rules. The proviso given to Rule 3-B of the Rules cannot be understood as curtailing the scope of sub-rule (1) of Rule 3-B, which provides for grant of rural weightage “in all direct recruitments to Group-C and Group-D posts in the State Civil Services”. Therefore, I have no hesitation to come to the conclusion that the Selection Committee has seriously erred in law in not awarding ten marks of rural weightage to the petitioner which was awardable to a rural candidate as the petitioner is undoubtedly a rural candidate within the meaning of Rule 2 of the Rules. It is also not in dispute that if the petitioner is to be awarded ten marks of rural weightage, the marks secured by the petitioner would be 109 as against 103 marks secured by the third respondent; and in that event, the petitioner was entitled for selection as against the claim of the third respondent. Therefore, the selection of the third respondent as against the preferential claim of the petitioner, in my view, is highly arbitrary, unreasonable and discriminatory in nature. The wrong interpretation of the proviso given to Rule 3-B of the Rules has resulted in denial of the rightful claim of the petitioner for the award of ten marks to a rural candidate. In the light of the above conclusion, the first question is required to be answered in favour of the petitioner.
8. Now, the next question is that even if the petitioner was entitled for the award of ten marks of rural weightage, since the rule in question was subsequently struck down by this Court, whether the petitioner is entitled to seek for a direction to respondents 1 and 2 to include his name in the select list and appoint him as a Sub-Inspector of Police. No doubt, it is true that Rule 3-B of the Rules subsequent to the selection made to the post of Sub-Inspector of Police, has been struck down by this Court. The Division Bench of this Court, in Writ Appeal No. 5807 of 1998, white affirming the decision of the learned Single Judge striking down, the rule, and also approving the observations made by the learned Single Judge that the appointments earlier made by giving rural weightage shall not be disturbed, by means of order dated 16th of December, 1999 made on LA. No. XV, has held that the selection or appointment of the candidates made during the pendency of the writ appeals shall also remain undisturbed. It is useful to refer to the said observations made by the Division Bench as ordered by means of orders dated 26th of November, 1999 and 16th of December, 1999. The observation made in the order dated 26th of November, 1999 at paragraph 22 reads as follows:
“22. For the foregoing reasons, we do not see any merit in the appeal. The learned Single Judge was right in striking down the impugned rules. We affirm the observations made by the learned Single Judge that the candidates who have already been appointed by giving ‘rural weightage’ should not be disturbed and also the persons who have been appointed during the pendency of these appeals until now on the basis of rural weightage”.
Order dated 16th of December, 1999 reads as follows:
“…… At para 22 of the judgment delivered by this Court on 26-11-1999 at line 5, in the place of “already been appointed” it has to be substituted as “already selected and appointed” and also at lines 6 and 7, in place of “who have been appointed”, it has to be substituted as “appointed or selected” during the pendency of these appeals”.
Therefore, in the event the name of the petitioner was to be put in the select list, the petitioner would have been entitled for appointment as a Sub-Inspector of Police. However, the name of the petitioner was not included in the select list as noticed by me earlier, on an erroneous interpretation of the proviso given to Rule 3-B of the Rules and not awarding ten marks of rural weightage, which was awardable to a rural candidate, to the petitioner for which he was entitled. Now, the question is whether the illegality committed by the Selection Committee and the Authorities of the State should deprive the petitioner of his legitimate right to be selected and appointed as a Sub-Inspector of Police, though the rule in question has been struck down when the Division Bench of this Court, in the writ appeal referred to above, has saved the selection of the candidates whose names were found in the select list? In my view, when all other candidates in various categories of posts in State Civil Service, whose names were found in the select list, were given the benefit of the rural weightage though the said rule came to be struck down by this Court, which has been affirmed by the Supreme Court, I do not find any justifiable reason not to extend the similar benefit to the petitioner, who has been wronged on account of the erroneous understanding of the Rules and the illegality committed by the Selection Committee. The error or the illegality committed by the Selection Committee/Appointing Authority, should not result in singling out the petitioner for hostile discrimination and should not result in denial of the rural weightage to the petitioner, for which he was entitled on the date of his case being considered for selection. Therefore, I am of the view that if the contention of the learned Counsel for the respondents is accepted as right, as noticed by me earlier, it would result in picking up the petitioner alone for hostile discrimination of not awarding the benefit of rural weightage on account of the illegality committed by the Selection Committee. In my view, the only question that is required to be considered is, whether the petitioner was entitled for the benefit of rural weightage on the date of his case being considered along with other candidates who also had sought for the benefit of rural weightage and whose selection was saved by the Division Bench on account of their names being included in the select list. In my view, the decision relied upon by Sri Hegde in the case of Shailaja, supra, has no application to the facts of the present case. No doubt, this Court, in the said decision, has observed that this Court will not issue any direction or writ to the authorities to commit the illegalities. In this case, the petitioner is not seeking for any direction to the authorities to commit any illegalities as contended by the learned Counsel appearing for the respondents. The petitioner is only seeking for a direction to set right the illegality committed by the Selection Committee by awarding the rural weightage to which the petitioner was entitled on the date of his selection, and which was given to others who were similarly situated like the petitioner. As noticed by me earlier, since the Division Bench has saved the selection of the candidates, who were given the benefit of rural weightage, the petitioner is only claiming that the said benefit must also be given to him. Therefore, by directing the respondents to award the rural weightage to the petitioner, this Court will not be directing the authorities to commit any illegality. As noticed by me earlier, the rights of the petitioner and others is required to be examined as on the date of their selection. This aspect of the matter was not considered by this Court in Shatlaja’s case, supra. The Supreme Court, in the case of P. Mahendran v State of Karnataka , has taken the view that once the selection process has commenced, the rule that was governing on the date of selection is required to be taken into account and should be given effect to; and the subsequent amendment of the Rules or the statute unless it is made retrospective in operation, cannot be taken into account. It is useful to extract the observations made by the Supreme Court at paragraph 5 in the said decision, which reads as follows:
“It is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending rules came into force, the amended rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the rules before its amendment moreover construction of amending rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject-matter”.
Further, in the case of A. A. Calton, supra, the Supreme Court has laid down that no retrospective effect should be given to any statutory provision so as to impair or take away any existing rights, unless the statute either expressly or by necessary implication, directs that it should have such retrospective effect. In the said decision, the Supreme Court has further observed that at every stage of the selection process, certain rights are created in favour of one or the other of the candidates who apply for selection to a post. At paragraph 5 of the judgment, the Supreme Court has observed thus:
“It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under Section 16-F(4) of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under Section 16-F of the Act. Now do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under Section 16-F of the Act commencing from the stage of calling for applications for a post upto the date on which the Director becomes entitled to make a selection under Section 16-F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well-settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case, admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned Counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case”.
(emphasis supplied)
Therefore, the rights accrued to the petitioner on the date when his case along with the case of other candidates came up for consideration by the Selection Committee and the benefit of the selection given to persons, who are similarly situated like the petitioner, whose names were found in the select list, in the light of the judgment of the Division Bench in the case of Basavaraj Nagoor, supra, cannot be denied to the petitioner merely on the ground that Rule 3-B of the Rules came to be subsequently struck down by this Court. The principle laid down by the Supreme Court in the case of P. Mahendran, supra and A.A. Calton, supra, in my view, can be applied to the case of the petitioner as well in the backdrop of the order made by the Division Bench of this Court saving all the selections made.
9. In the light of the above discussion, I am of the view that striking down of the rule in question by this Court will not deprive the petitioner of his name being included in the select list and his appointment as Sub-Inspector of Police. My answer, therefore, even in respect of the second question, is in favour of the petitioner.
10. Now, the only other question that is required to be considered, is whether the appointment of the third respondent is required to be nullified to accommodate the petitioner. In my view, such a conclusion is not called for in the facts and circumstances of this case. It is not disputed by the learned Additional Government Advocate appearing for respondents 1 and 2 that there are vacancies in the Cadre of Sub-Inspector of Police. The third respondent, pursuant to his selection as Sub-Inspector of police, has already undergone training course for one year. He is not to be blamed or has not contributed in any manner for not awarding the marks for rural weigfitage to the petitioner, to which he was entitled. It is only the Selection Committee constituted by the State if at all to be blamed, for the wrong understanding of the rule and on that basis, not awarding the rural weightage to the petitioner. The third respondent is also a Scheduled Caste candidate. Under these circumstances, if the appointment of the third respondent is quashed at this stage, as rightly pointed out by Sri Hegde, the third respondent would be put to irreparable injury and hardship. Under these circumstances, I am of the view that the interest of justice would be met if a direction is given to respondents 1 and 2 to include the name of the petitioner in the select list notified by means of notification dated 28th of December, 1998 and grant him appropriate ranking in the said list on the basis of the marks secured by him taking into account the rural weightage for which he was entitled and issue him the appointment order. It is also made clear that for the purpose of seniority in the Cadre of Sub-Inspector of Police, the petitioner is deemed to have been selected along with other candidates whose names are put in the select list published by respondents 1 and 2, and on that basis, the ranking to be assigned in the said list. However, since the petitioner has not yet been appointed, the petitioner would not be entitled for any salary for the period during which he has not worked.
11. In the light of the discussion made above and the conclusion reached by me, I make the following:
ORDER
(i) Respondents 1 and 2 are directed to include the name of the petitioner in the select list of Sub-Inspectors of Police as notified by means of notification dated 28th of December, 1998 by assigning him appropriate ranking, taking into account the marks secured by the petitioner and in the light of the observations made in the course of this order.
(ii) The selection, of the third respondent to the Cadre of Sub-Inspector of Police remains undisturbed.
(iii) Respondents 1 and 2 are given two months’ time from today to comply with the direction given above,
12. In terms stated above, this petition is allowed and disposed of. Rule issued is made absolute.
13. However, no order is made as to costs.
