Compilation Vol 3 Corrected (1-943).pmd - Goa Public Service ...

Karnataka PSC
14.4The learned Counsel submits that Section 4 of the 1990 Act mandates that after the appointed
day while making appointments to any office in a civil service of the post of Karnataka or to a civil post
under the State of Karnataka appointments or posts shall be reserved for the members of Scheduled
Castes, Scheduled Tribes and Other Backward Classes to such extent and in such manner as may be
specified from time to time in the order made by the Government under Clause (4) of Article 16 of the
Constitution of India. Section 4(4) declares that all appointments made in contravention of the provisions
of this Section shall be voidable. Therefore, while making appointments to any civil post or office in a
civil service if prescribed percentage of reservation is not made in favour of OBCs the appointments
made will be voidable. Entire rule of reservation has to be understood in the light of this provision.
14.5The Government vide Order dated 30.3.2002 has introduced a comprehensive creamy layer
policy. Note-I states that ‘This Rule will not apply to direct recruitment to posts which insist on a
prescribed period of service in a lower post or experience in a post, profession or occupation as a
qualification or eligibility.” This Order is issued under Rule 16(4) of the Constitution of India and is
traceable to Section 4 of the Reservation Act. Note-I mentioned above does not prescribe a specific
period. It does not mean that the rule cannot be applied where period is not specified. The phrase
‘prescribed period’ could be anything 1 day to infinity. A candidate becomes ‘in service’ the moment
he enters service. All persons who are not out of service are in service. Note-I having been inserted
for the benefit of in-service candidates it has to be read in a manner which would effectuate the
purpose and any interpretation which would scuttle the object has to be eschewed. It is settled law
that a Court must construe a provision to make it workable rather than to make it unworkable. While
interpreting a statutory provision no word should be added or substracted unless it is impossible to make the
rule workable without such addition or substraction. No part of the rule should be made otiose.
14.6In respect of Applications No.1400/2008 and 3437/2008, Mr. Rajagopal submitted that all
the Applicants who have challenged the Competitive Examinations Rules are those who applied and
participated in the selection process without demur. After participation they cannot question. The
challenge has been raised after declaration of written test results and after the applicants coming to
know that on the basis of marks secured in the competitive examination they have no chance of
success. In support of this contention, he referred to the following decisions:
(1) DANANJAY MALICK v. STATE OF UTTARANCHAL – (2008) 4 SCC 71 (Paras 7, 8 and 9),
“7.It is not disputed that the Respondent-Writ Petitioners herein participated in the process
of selection knowing fully well that the educational qualification was clearly indicated in
the advertisement itself as BPE or Graduate with Diploma in Physical Education. Having
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