Karnataka HC upholds KAT order awarding Rs 10 lakh to Govt Advocate candidate for fraud by Selection Committee

The Dharwad Bench of the Karnataka High Court recently criticized the Selection Committee of the Department of Prosecution and Government Disputes for fraudulent practices adopted by it in the selection of Assistant Public Prosecutor-cum-Assistant Government Pleaders (APP-cum-AGPs)..A Division Bench of Justices G Narendra and M Nagaprasanna upheld an order passed by the Karnataka Administrative Tribunal (KAT) that set aside the appointment of the petitioner Ashok Kumar, who was appointed in 2010.It further directed the Home Department to pay a compensation of Rs 10 lakh to the respondent Revanna, for discrepancies in the selection procedure. In this regard, the order reads,."The selection is done by the State. 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 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. In cases of this nature, individual innocence, as claimed by the learned Counsel for the 3rd respondent has no place as it is trite law that “fraud unravels everything” and vitiates every solemn act."Karnataka High Court.Factual BackgroundThe Department of Prosecution and Government Disputes had issued a recruitment notification in June 2009, calling for applications for the post of APP-cum-AGP. After final evaluation of marks, Revanna was awarded 86.20 marks and Ashok Kumar was awarded 84.40 marks..However, it so happened that Revanna's name was absent from the provisional selection list. The name of Ashok Kumar was present, with his marks being shown to be 87.40 instead of 84.40. Revanna pointed out this discrepancy to the authority. Nonetheless, his objection was not considered. Aggrieved by the same, Revanna filed a complaint before the KAT, which eventually set aside the appointment of Ashok Kumar. The Tribunal also directed the state government to pay compensation of Rs. 10 lakh to Revanna..Before the High Court, counsel for the petitioner, Vilas Kumar Marthand Rao, argued that the Tribunal had erred in quashing the provisional selection list. He stated that the alteration of marks was only a typographical error and that Ashok Kumar was just an innocent participant in the entire selection process. He further argued that allegations of fraud can be drawn only against the selection committee, and that he had no part to play in the same. .Advocate R Padmanabha, on the other hand, argued that the marks secured by Revanna was more than the marks secured by Ashok Kumar. He further submitted that the applicant was denied appointment due to the illegal action of the selection authority, and that the Kumar was the “direct beneficiary of the fraud played by the Selection Authority”. .The state argued that the the order of the KAT is erroneous and contrary to the facts. Ashok Kumar was appointed to the post of AGP as a rectification to the error that had crept in while publishing the provisional list, it was contended..What the High Court heldAfter perusing the materials on record and noting the contentions of all the parties, the Court formulated three points for consideration..Whether the appointment of the 3rd respondent (Ashok Kumar) to the post of APP-cum-AGP was legal and valid ?The judgement in this regard reads, .“...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.”Karnataka High Court.Whether the Tribunal was justified in interfering with the selection of the 3rd respondent and imposing the cost of Rs 10 lakhs upon the State?Modifying the Tribunal's order, the High Court stated that though the applicant was entitled for compensation, it was not to be paid by the state government. It thus specifically directed the Home Department to pay up the compensation. In this regard, the judgment reads,.“But the award of compensation by the Government to the applicant is improper, as it would amount to mulcting the State. Though the direction to pay compensation is valid, but not from the Government. The order of the Tribunal warrants interference only on this aspect of the matter. Our finding is that the fraud is committed by the selection Authority. Therefore, we direct the 1st respondent to satisfy the amount of compensation directed to be paid to the applicant…”Karnataka High Court.The Court further directed the Home Department to identify those officers who were responsible for the fraud committed, to hold an inquiry, and recover the amount from such persons..Whether the appointment of the 3rd respondent should be saved ?The Court stated that Ashok Kumar is the direct beneficiary of the fraud committed by the Selection Authority. If the argument made by the counsel of Kumar were accepted, it would be misplaced sympathy, and that yielding to such sympathy will defeat the cold logic of law, the order reads..Adding on, the Court stated that since Ashok Kumar has worked hard and earned his salary for the last ten years, now directing a recovery of the salary amount would be improper and unfair to him. ."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.".However, the Court held that Kumar has no right to continue in the post of APP-cum-AGP..In the light of the above, the Court dismissed the plea and further directed the authorities to consider the candidature of Revanna to the post of APP-cum-AGP within a period of four weeks.