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IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 27TH DAY OF JULY, 2012
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
W.P. NO.8085/2008C/W.
W.P. NO.15880/2007 (S-RES)
W.P. NO.8085/2008
BETWEEN:
DR J SUKUMARAGED ABOUT 52 YEARSS/O N S JAYARAJSCIENTIST D MULBERRY PATHOLOGY ANDMICROBIOLOGY SECTION,MORICULTURE DIVISION,KARNATAKA STATE SERICULTURERESEARCH AND DEVELOPMENT INSTITUTETHALAGHATTAPURA,KANAKAPURA ROAD,BANGALORE-560 062 ... PETITIONER
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR M/S P.S.RAJGOPAL ASSOCIATES, ADVOCATES)
AND:
1. STATE OF KARNATAKABY ITS SECRETARYCOMMERCE AND INDUSTRIESDEPARTMENTVIKASA SOUDHA,DR. AMBEDKAR VEEDHIBANGALORE-560 001
2. COMMISSIONER FOR SERICULTUREDEVELOPMENT ANDDIRECTOR OF SERICULTUREGOVERNMENT OF KARNATAKA5TH FLOOR, M.S.BUILDINGDR. AMBEDKAR VEEDHIBANGALORE-560 001
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3. DIRECTORKARNATAKA STATE SERICULTURERESEARCH AND DEVELOPMENTINSTITUTE, THALAGATTAPURA,KANAKAPURA ROADBANGALORE-560 062
4. S. KRISHNA KUMAR, IAS (Retd.) AGED ABOUT 62 YEARS FORMERLY ADVISOR TO GOVERNOR OF KARNATAKA, R/AT NO 118, 7TH CROSS, RMV II STAGE, BANGALORE-560 094
5. DR. C.S.PATIL S/o LATE SHIVARUDRAPPA GOWDA AGED 54 YEARS, SCIENTIST D& HEAD, SILK WORM PATHOLOGY SECTION K.S.S.R.D.I, THALAGATTAPURA BANGALORE,
6. DR.D.BONGALE DIVISION CHIEF (MORICULTURE) KARNATATA STATE SERICULTURE RESEARCH & DEVELOPMENT INSTITUTE, KANAKAPURA ROAD BANGALORE-560 062 ..RESPONDENTS
(BY SRI. JAGADEESH MUNDARAGI, AGA FOR R1 AND R2;SRI.K.G.SHANTAPPA, ADVOCATE FOR R-3; SRI. M.S.BHAGWATH, Sr. COUNSEL FOR SRI.K.N.JAYAPRAKASH,ADVOCATE FOR R5; SRI. H.C. SHIVARAMU, ADVOCATE FOR R6),,
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OFTHE CONSTITUTION OF INDIA PRAYING TO CALL FOR THERECORDS LEADING TO THE ISSUE OF GOVT. ORDER DT.24.3.2008 OF THE R1 GOVERNMENT AT ANNEXURE M AND THENOTIFICATION DT. 17.5.2008 OF THE R2 AT ANNEXURE NEXAMINE THEIR CORRECTNESS, AND SET THEM ASIDEHOLDING THEM AS ILLEGAL, ARBITRARY AND MALAFIDE.
WP NO 15880 OF 2007
BETWEEN:
NARAYANA GOWDAS/O LATE NAGE GOWDAAGED ABOUT 50 YEARSSCIENTIST, HEAD MULBERRYAGRONOMY SECTION, MORICULTURE DIVISIONKARNATAKA STATE SERICULTURERESEARCH AND DEVELOPMENT INSTITUTETHALAGATPURA,BANGALORE –560 062 ... PETITIONER
(BY SRI. S V NARASIMHAN, ADVOCATE)
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AND:
1. STATE OF KARNATAKAREP BY ITS SECRETARY TOGOVERNMENTCOMMERCE AND INDUSTRIESDEPARTMENT AND THE CHAIRMAN,GOVERNING COUNCILKSSSRDI, M.S.BUILDINGBANGALORE-01
2. THE COMMISSIONERDEVELOPMENT AND DIRECTORSERICULTURE DEPARTMENTAND THE CHAIRMAN,FINANCE COMMITTEE,KARNATAKA STATE SERICULTURERESEARCH AND DEVELOPMENTINSTITUTE, THALAGHATPURABANGALORE-02 ... RESPONDENTS
(BY SRI.K.G.SHANTHAPPA, ADVOCATE FOR R2;SRI.JAGADEESH MUNDARAGI, AGA FOR R1)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO CONSIDER THE CASE OF THE PETITIONER
FOR APPOINTMENT TO THE POST OF DIRECTOR IN THE R2
INSTITUTE PURSUANT TO THE NOTIFICATION DT. 16.7.2007
VIDE ANX-E, OF R2 AND TO APPOINT HIM TO THE SAID POST IN
CONSIDERATION OF HIS QUALIFICATION AND EXPERIENCE
AND WITH ALL CONSEQUENTIAL BENEFITS.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13.02.2012 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY THE COURT PASSED
THE FOLLOWING:
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O R D E R
Petitioner in WP No.8085/2008 is seeking for
setting aside the Government Order No.CI 10 SLK 2006
dated 24.3.2008 passed by first respondent at
Annexure-M and notification No.KSSRD/EST
/AD/2/2008-09 dated 17.5.2008 issued by second
respondent at Annexure-N with a direction to first
respondent to appoint the petitioner as Director of
Karnataka State Sericulture Research and Development
Institute on the basis of the recommendations sent by
the Selection Committee on 8.10.2001.
2. Petitioner in WP No.15880/2007 is seeking for
Writ of Mandamus to respondents to consider his case
for appointment to the post of Director in second
respondent - Institute pursuant to notification
No.KSSRDI:EST:AD:2:2007-08 dated 16.7.2007
Annexure-E and to appoint him to the said post with all
consequential benefits.
3. Heard Sri P.S. Rajagopal, learned Senior
counsel appearing on behalf of petitioner in WP
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No.8085/2008, Sri.Jagadish Mundaragi, learned
Additional Government Advocate, for respondents 1 & 2,
Sri.K.G.Shanthappa, learned counsel appearing for
respondent No.3- Institute, Sri M.S. Bhagwath, learned
counsel appearing on behalf of respondent No.5 and Sri
P.S. Manjunath, learned counsel appearing on behalf of
respondent No.6 and Sri.S.V.Narasimhan, learned
counsel appearing for petitioner in WP No.15880/2007.
Perused the impugned orders, statement of objections
filed by respondents as also the original files made
available by the learned Government Advocate.
4. The grievance of the petitioner in this Writ
Petition is: first respondent has yielded to pressures
during the last few years in making appointment to the
post of Director of Karnataka State Sericulture Research
and Development Institute (hereinafter referred to as
‘Institute’ for the sake of brevity). According to the
petitioner, the Cadre and Recruitment Regulations,
1997 (hereinafter referred to as `C & R-1997' for the
sake of brevity) prescribed the age limit for the said post
as 50 years and first respondent had issued a
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notification on 23.2.2006 by continuing
Dr.U.D.Bongale, sixth respondent herein as Director,
ignoring the Rules, who functioned in that capacity from
3.5.2006 to 4.1.2007 and thereafter, one more
notification dated 5.1.2007 came to be issued
continuing him as Director of the Institute, which was
questioned by one Dr.S.R.Katti in Writ Petition
No.453/2007 and during the pendency of the Writ
Petition, first respondent issued a notification dated
9.2.2007 amending the Rules by increasing the age limit
for appointment to the post of Director as 55 years and
this court by order dated 26.6.2007 allowed the Writ
Petition with a direction to the first respondent to
appoint a candidate as Director of the Institute in
accordance with Rules; Writ Appeal No.461/2007 filed
challenging said order was disposed of by a Division
Bench of this Court on 14.6.2007 with a direction that
regular appointment to the post of the Institute be made
within four months.
5. Thereafter, first respondent issued its
approval dated 26.6.2007 Annexure-E whereunder
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amendment to the Rules came to be approved under
which the age limit for the post of Director was
prescribed as "below 53 years for internal candidates
on the last date fixed for receipt of application”;
pursuant thereto second respondent issued a
notification dated 15.7.2007 Annexure-F calling for
applications to fill up the post of the Director of the
Institute to which petitioner and 14 others applied and
selection committee selected the petitioner and
recommended on 8.10.2007 to the first respondent to
appoint the petitioner as Director of the Institute.
6. It is contended in the Writ Petition that on
account of fifth respondent sending a representation to
first respondent to increase the maximum age to 55
years, the first respondent withdrew the letter dated
9.2.2007 Annexure-B and letter dated 26.6.2007
Annexure-E by Government Order dated 24.3.2008
Annexure-M on the ground that same was not in
accordance with resolution and accepted the resolution
passed by the Institute in its 44th Governing Council
meeting held on 18.12.2006 and thereby holding the
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eligibility criteria for the internal candidates for the post
of Director in the institute as "below 53 years as on
the date on which the post of Director became
vacant". Thereafter, the first respondent has called for
applications for the post of Director in the Institute vide
Notification dated 7.5.2008 Annexure-N. Hence,
petitioner has questioned Annexure-M and Annexure-N
in this Writ Petition by contending that once selection
process has commenced it could not have been stalled
or restarted by changing the rules of the Game.
7. Petitioner in WP No.15880/2007 has
contended that he is possessing requisite qualification
for being appointed to the post of Director of the
Institute and he has not been called for the interview
though four other candidates are called for interview
and he would become over aged by next recruitment
and contends he has completed Phd. in Sericulture and
he is more suitable than any other candidates in the
Department. On these grounds, he has sought for a
Writ of Mandamus to consider his case for appointment
to the post of Director.
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8. It is the contention of Sri P.S.Rajagopal, that
pursuant to the amendment to the Rules being
approved by the first respondent on 26.6.2007
notification dated 15.7.2007 Annexure-F came to be
issued inviting applications for the post of Director of
the Institute and petitioner submitted his application
along with 14 other candidates and Selection Committee
under the Chairmanship of then Vice Chancellor of the
University of Agricultural Sciences, Bangalore
scrutinised the applications and found that petitioner
and three other candidates were eligible for the post as
per the proceedings of the Selection committee dated
18.9.2007 Annexure-G. Pursuant to the said
proceedings, petitioner was called for interview and
name of the petitioner was recommended on 8.10.2007;
and, on receipt of such recommendation first
respondent ought to have accepted said
recommendation by issuing appropriate orders
appointing him; he submits it was not done since one of
the candidate namely Dr.C.S.Patil, fifth respondent
herein submitted a representation dated 26.11.2007 as
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per Annexure-J requesting first respondent to increase
the age limit for appointment to 55 years and sought for
re-conducting of the interview and pursuant to the said
representation, the first respondent called for comments
from the Commissioner for Sericulture - second
respondent who by communication dated 13.12.2007
Annexure-K recommended to the State Government to
reject the representation of 5th respondent and further
recommended to expedite the process of appointing
Director to the Institute as per the recommendation
already made. However, first respondent instead of
issuing order of appointment, appointed one
Dr.U.D.Bongale on adhoc basis until further orders
which came to be set aside in WP No.453/2007 and
affirmed in WA No.461/2007.
9. He contends that 3rd respondent-Institute is
registered under the Karnataka Societies Registration
Act, 1960 and the Memorandum of Association of the
Institute would go to show that appointment of Director
of third respondent-institute will be made by the
Government under Clause 14 and 19A of the
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Memorandum of Association and State Government is
alone the appointing authority. He would contend that
reason given by the first respondent to withdraw
Annexure-B and Annexure-E was that it was not in
consonance with resolution passed by the Governing
Council of 3rd respondent-institute at its 44th meeting
held on 18.12.1996. According to Sri P.S. Rajgopal,
Governing Council's view is irrelevant and petitioner is
not challenging the said approval dated 26.6.2007
Annexure-E and contends that under sub clause (4) of
clause 10 of the Memorandum of Association of the 3rd
respondent-Institute the Governing Council is having
powers only to perform the functions as enumerated
therein and the proceedings of the Governing council
would have no bearing or impact on appointment of
Director to the Institute is concerned, since the
Government is the appointing authority. He would
draw the attention of the Court to the note sheets of the
Government produced at Annexure-N to contend that
5th respondent has no locus standi to question
petitioner's appointment since he had participated in
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the selection process and had acquiesced himself. He
also contends that first respondent has issued
Annexure-M at the instance and behest of the fifth
respondent as could be seen from the notings in the
order sheet and particularly the noting of the Advisor to
the Governor at internal page 35 at paragraph 263
which would go to show that for the purposes of
bringing fifth respondent within the zone of
consideration, amendment already approved under
Annexure-B dated 9.2.2007 has been withdrawn on
24.3.2008 vide Annexure-M.
10. He contends that Government having initiated
selection process, could not have interdicted in the
middle of selection process at the instance of fifth
respondent by changing the rules of the game. He
would further contend that exercise of power by
Government for cancellation of selection cannot be
arbitrary, but has to be reasonable. Merely because no
indefeasible right is vested in a candidate, it does not
mean that Government can cancel such process
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arbitrarily. In support of his submission he relies upon
the following judgments:
(1) (2008) 4 SCC 171
(2) (2006) 6 SCC 395
(3) (2008) 3 SCC 512
(4) (2000) 9 SCC 283
(5) (1993) 1 SCC 154
On these grounds he submits that Writ Petition be
allowed and prayer sought for in the writ petition be
granted.
11. Per contra, learned Addl. Government
Advocate submits that under Rule 6 sub Rule (3)(b) of
the KCS (General Recruitment) 1977, first anomaly
committee formed to look into anomalies had in its
meeting held on 06.11.2002 recommended for age
relaxation for internal candidates by number of years
the applicant held the post or five years, whichever is
less. The second anomaly committee vide resolution
dated 09.08.2006 and 22.09.2006 proposed for
amendment to the existing C & R Rules 1987 as "below
50 years for external candidates and below 53 years for
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internal candidates". Based on requests from Senior
Scientists and findings of the anomaly committee, the
institute at its 44th Special Governing Council Meeting
held on 18.12.2006, resolved age relaxation as 53 years
on the date on which the vacancy for the post of
Director accrued in case of internal candidates. This
resolution which was forwarded to the Government for
approval came to be modified by fixing the maximum
age limit as 55 years on the date the post became
vacant in respect of internal candidates as per approval
dated 09.02.2007- Annexure-B. However, the State at
the instance of some scientists including the petitioner
re-fixed the age limit as 53 years instead of 55 years
and the age to be reckoned was fixed as on the last date
fixed for receipt of applications instead of the date on
which the post of Director became vacant by order dated
26.6.2007, Annexure-E. It was noticed by the
Government that as per 44th Special Governing Council
Resolution of the Institute dated 18.12.2006 which was
followed by notification dated 9.2.2007 (Annexure-B), all
senior Scientists including the petitioner were eligible to
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apply for the post of Director and no injustice was being
caused to anyone. Hence, it was found by the State
Government that there was no justification for the
petitioner to approach the State by his representation
dated 22.2.2007 to reduce the age limit from 55 years to
53 years and it was found that to eliminate competition,
this was done. It is also stated that after the Selection
Committee made its recommendations after re-
amendment to Rules as approved by the Government on
26.6.2007 Annexure-E when the state was under
Governor’s Rule, a detailed examination of factual
aspects was made and after securing the opinion from
the Law department and on noticing serious lapses in
the process of selection decided to withdraw the letters
dated 9.2.2007 and 26.6.2007 and approved the
resolution dated 18.12.2006 passed by the institute at
its 44th Special Governing Council Meeting. He
contends that Governing Council is empowered to act
and amend the rules and regulations as enumerated
under Rule 10 of the Institute’s Rules and Regulations.
He contends that Governing Council is vested with such
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power and defends the impugned orders. He would
contend that pursuant to Government Order dated
28.3.2008 Annexure-M notification dated 17.5.2008
Annexure-N inviting applications have been issued
calling for filling the post of Director of the Institute and
interview was held on 14.7.2008 and all the six
candidates who had applied, participated in the
interview, including the petitioner herein and fair
opportunity has been given to all the eligible candidates
and as such petitioner cannot be construed as aggrieved
person and none of his legal rights are violated; other
contentions raised in the Writ Petition contrary to facts
have been denied.
12. Mr. Bhagwath contends that third respondent
institute is registered under the provisions of Karnataka
Societies Registration Act, 1960 and Memorandum of
Association and Rules, Regulations of the institute has
been duly approved by the Government. He contends
under sub-rules (2) & (3) of Rule 10, the Governing
Council of the Institute is empowered to add, alter or
amend the Rules and Regulations and bye-laws of the
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institute subject to approval by the Government. He
contends in exercise of such power Rules, Regulations
and bye-laws of the institute known as "Karnataka State
Sericulture Research and Development Institute Bye-
laws, 1981" came to be made and bye-law 23 provides
that only approval of the proposed amendment to any
Rules or bye-laws by the Governing Council, shall be
incorporated in the respective rules. He contends that
Regulations known as "The Karnataka State Sericulture
Research and Development Institute (Cadre and
Recruitment) Rules, 1981" was framed which provided
for mode of filling up of various posts in the institute.
He contends revised recruitment Rules known as "The
Karnataka State Sericulture Research and Development
Institute (Cadre and Recruitment) Regulations, 1997"
came into force from 1998 in the place of existing rules
and as per the said Rules the age limit prescribed for
the post of Director in the said Institute for Direct
recruitment was 50 years and by virtue of direction
given by this court in Writ Petition No.6623/2001 dated
01.03.2006 to consider the representation dated
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5.3.2000 and 06.03.2000 submitted by fifth respondent
and others in accordance with law, it came to be
referred to anomaly committee. Pursuant to the
directions issued by this court, the anomaly committee
recommended for relaxation of age limit as "below 50
years for external candidates and below 53 years for
internal candidates". He contends that after reviewing
the C & R Rules, and considering the recommendations
made by the anomaly committee 3rd respondent-
institute proposed for amending the Rule with regard to
fixing the age. As such the Governing Council in its
44th meeting held on 18.12.2006 resolved to amend the
C & R 1997 and accordingly resolved to amend the
Rules as "below 53 years on the date on which the
vacancy of the post of Director accrued in respect of
the internal candidates only” as per Annexure-R2. He
contends when the said resolution was sent for approval
to the State Government, it was modified as "Below 55
years as on the date on which the post of Director
became vacant in respect of internal candidates
only" as per Annexure-R3. At this juncture, petitioner
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submitted a representation on 22.2.2007 and 28.2.2007
to fix the age to "53 years" for internal candidates as on
the last date fixed for receipt of the applications. The
Commissioner for Sericulture forwarded the petitioner's
representation to the Government for consideration. The
State Government on 26.6.2007 accepted the
recommendation of the Commissioner of Sericulture
and approved C & R – 1997 by fixing the age limit as
below 53 years as on the last date for receipt of
applications and pursuant to the same notification was
issued and applications were called for, received,
proceedings were held by the selection committee and
made its recommendations as per Annexure-G. He
contends that on account of several Scientists being
excluded by virtue of reducing the age as also the date
on which vacancy would arise, representations came to
be submitted to the Government and first respondent -
Government after obtaining necessary opinion,
withdrew the notification dated 09.02.2007 and
26.6.2007 Annexure- B and E and approved the
resolution dated 18.12.2006 passed by the Governing
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Council at its 44th meeting by order dated 24.03.2008
which is impugned in the present writ petition. He
submits that pursuant to the impugned order,
notification has been issued and applications were
called for from eligible candidates and the selection
process is now complete in which the petitioner has also
participated and results have not been announced by
virtue of the interim order passed by this court on
11.7.2008 not to announce the result pending disposal
of the Writ Petition. He contends that petitioner having
participated in the selection process is estopped from
challenging the impugned notifications. He would
further contend that on account of petitioner not
challenging the resolution dated 18.12.2006, the order
of the Government dated 24.3.2008 Annexure-M is only
an order granting approval of the resolution and as
such Writ Petition itself is not maintainable. He would
contend that the State Government has no authority or
jurisdiction to modify or change the authority of the
institution which is a society registered under the
Societies Registration Act and as such the notification
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dated 9.2.2007 and 26.6.2007 vide Annexures B and E
being contrary to the resolution of the Governing
Council dated 18.12.2006 is illegal and void and
contends that impugned order is valid and legal. It is
also submitted that as per clause 19A of the
Memorandum of Regulations which is a non obstante
clause would apply only to Rule 13 to 19. He contends
that in exercise of the power conferred under bye-law
10(3), Cadre and Recruitment Rules have been
formulated which cannot be found fault with. He
submits that Government while withdrawing Annexures
B and E has assigned reasons and particularly in the
note at paragraph 244 vide Annexure-R13 it has
specifically stated that resolution passed by the
Institute at its 44th Governing Council Meeting is final
and binding and as such he contends that the
impugned order dated 24.3.2008 at Annexure-M does
not call for interference.
13. In support of his contention he relies upon
the following judgments:
(1) 2009) 3 SCC 227
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(2) (1997 6 SCC 614
(3) (2003 9 SCC 529
(4) (2007 8 SCC 100
(5) Order dated 15.10.2007 passed in WA
No.15098/2011.
14. Sri K.G. Shanthappa, learned counsel
appearing for third respondent institute would contend
that prior to 1998 Rules under old Rules i.e. 1980, the
age limit prescribed for the post of Director was 50
years and pursuant to order passed by this court in
Writ Petition No.6623/2001 anomaly committee meeting
was convened, which prescribed age limit as 55 years as
per recommendations dated 06.11.2002. He would
contend that post of Director became vacant as on
24.2.2006 and second anomaly committee proposed
amendments to existing C & R Rules-1997 and it
recommended the age limit as 60 years for external
candidates and 53 years for internal candidates. He
would contend that on account of some Senior
Scientists of the Institute making request for relaxation
of the age limit for five years, 44th Special Governing
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Council Meeting of the Institute was convened on
18.2.2006 and it was resolved that age limit for the post
of 'Director' as "below 53 years on the date on which
the vacancy of the post of Director accrued in
respect of internal candidates only". The State while
considering the said resolution sent for approval,
modified the 44th Governing Council Resolution to the
maximum age limit as below 55 years as on the date on
which post of Director became vacant, for wider
competition in selection of merit candidates for the said
post. Thereafter, within a span of four months on the
basis of the representations dated 22.2.2007 submitted
by few scientists of the Institute, including the
petitioner, the age limit was again modified by reducing
and fixing the age limit as “below 53 years on the last
date fixed for receipt of the applications” as per approval
letter dated 26.6.2007 Annexure-E issued by the first
respondent. By virtue of such approval order issued by
the State Government, the last date of receipt of
application was to be reckoned for the purposes of
maximum age limit and not the date on which the post
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became vacant and he contends by virtue of such
amendment, which was made without following the
prescribed procedure, all senior scientists including the
fifth respondent became ineligible to apply and thus
deprived from applying for the post of Director. It is
stated by the learned counsel that on pressure being
exerted by the petitioner to issue appointment order
based on the re-amended C & R Rules dated 26.6.2007-
Annexure-E, the file came to be referred by the State
Government for legal opinion and thereafter, the
representation of fifth respondent also came to be
considered and on detailed factual examination followed
by securing legal opinion from the legal Department the
Government decided to withdraw the orders/approvals
Annexure-B & E since it was found to be contrary to
legal position and as such no infirmity can be found in
the impugned order Annexure-M. He contends that as
on 24.3.2008 namely the date of impugned notification,
petitioner, fifth respondent and Dr.Bongale were
eligible. He would contend if the age limit is taken as
53 years and cut off date as if last date of receipt of
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application is taken then only four candidates would be
eligible. Further, he contends if it is taken as "date on
which vacancy arose” all will become eligible. Thus, he
contends there is wider participation and no one is
deprived of not being considered by virtue of impugned
orders.
15. He contends that two previous Ministers have
taken different views as found at paragraph 197 of the
note sheet at Annexure-N and as such it was referred to
legal department who on scrutiny of entire factual
position have opined that non approval of the resolution
passed at the 44th Special Governing Council Meeting of
3rd respondent-institute is incorrect and as such the
Government has issued the impugned order dated
24.3.2008 Annexure-M withdrawing earlier approval
orders dated 9.2.2007 and 26.6.2007 Annexure-B & E
which is within the power of the Government.
16. He contends that under clause 10(2) of the
Rules and Regulations of the Institute, 1980 the
Governing Council has power to add, alter or abridge
26
any of the objects of the Institute subject to approval by
Government. He submits that if decisions contain
reasons, it is sufficient and contends that decision
making process alone can be gone into by Courts and
not the decision. In support of his submission he has
relied upon the following judgments:
(1) AIR 2010 SC 2794
(2) (2008) 10 SCC 246
17. Sri.P.S.Manjunath, appearing on behalf of
sixth respondent would contend that first respondent
found that the bye-law amended by the Institute which
is a Society Registered Under the Societies Registration
Act, are invalid and without jurisdiction and as such,
issued order dated 24.3.2008 Annexure-M withdrawing
its earlier notifications dated 9.2.2007 and 26.7.2007
Annexures B & E respectively. He contends that if
Government Order dated 24.3.2008 is quashed earlier
notifications dated 9.2.2007 and 26.7.2007 would get
revived which would mean for internal candidates, the
age would be 53 years as on the last date prescribed for
27
the receipt of applications. He would contend the only
beneficiary of this amendment made by the Government
under the impugned order is 5th respondent and further
contends that entire exercise of the petitioner appears to
be for the purpose of excluding competition from
respondents 5 & 6. He submits that sixth respondent
is required to be considered in view of the orders of this
court in Writ Petition No. 16041/2007. He also submits
that petitioner has to demonstrate that bye-laws of the
Institute can be amended by a simple resolution of the
Institute and it need not follow the procedure prescribed
u/s.10 of Karnataka Societies Registration Act read with
Rule 29 of the Rules.
18. In reply, Sri.P.S.Rajgopal would contend that
Rule 10, 12 to 14, 17 and 20 along with 15, 18 and 19
of Memorandum of Association, Governing Council has
no role to play in so far as appointment of Director is
concerned. He would submit that under Rule 10(3)
there is no general power to the Governing Council
since under clause (g) of clause 10(4) power was given to
Governing Council and later on withdrawn with effect
28
from 19.10.2000. He contends that notwithstanding
anything contained in Rules 13 to 19 of Memorandum
of Association, State Government is the appointing
authority under Rule 19A. He contends that Cadre and
Recruitment Rules is not at all applicable since Rule 14
is not covered under Rule 19A. In support of this
submission he relies upon the judgment of this court in
the case of Dr.Giridhar Kamalapurkar Vs Dr.Venugopal
Ram Rao and others reported in 2001 (3) KLJ 467. He
contends if the bye-law provides for the Government to
accept or reject the amendment it would also mean that
it has the power to amend the recommendations or the
decision of the Governing Council. Thus impugned
order suffers from vice of ultravires of Rules and
Regulations and as such it has to be set aside. He
contends that no administrative order can be
retrospective and in support of this proposition, he
relies upon the judgment of Govind Prasad Vs
R.G.Parsad and others reported in (1994) 1 SCC 437 -
para 11. He contends, if it has prospective effect
selection done pursuant to Annexure-B & E will hold
29
good and only Government Order has to be issued by
the first respondent. In support of this proposition, he
relies upon the judgment of the Hon'ble Apex court in
the case of Sonia Vs Oriental Insurance Co. Ltd., and
others reported in (2007) 10 SCC 627 para 10, 11 &
12. He would also contend that petitioner's
participation in the subsequent interview does not wipe
out his right and he submits that if he has participated
in the interview without prejudice to his right as seen
from the records filed in the present Writ Petition and
draws the attention of the court to the definition of the
word 'without prejudice' as defined in Blacks Law
Dictionary 8th Edition at page 1632. He would also
contend that once the fifth respondent has participated
by applying as a candidate in earlier round of selection
he is estopped from contending contrary. And in
support of his submission he relies upon the judgment
of the Hon'ble apex court in the case of University of
Cochin Vs N.S.Kanjoonjamma and others (V.Vasudevan
Vs University of Cochin and others reported in (1997) 4
SCC 426. With regard to the contention raised on cut
30
off date that it cannot be questioned at all, he relies
upon the judgment of the Hon'ble Apex court in the case
of Dr.Ami Lal Bhat Vs State of Rajasthan and others
reported in (1997) 6 SCC 614 para 6.
19. In reply to Sri K.G. Shanthappa's arguments,
Sri.Rajgopal, Senior Advocate contends the then
Director of the Institute has recommended to the first
respondent to continue the process of appointment as
per Annexure-K dated 13.12.2007 and as such he
cannot be allowed to argue against his own
recommendations. He relies upon the judgment of the
Hon'ble apex court in the case of East Coast Railway
and Anr Vs Mahadev Appa Rao and others with
K.Surekha Vs Mahadev Appa Rao and others reported
in AIR 2010 SC 2794. On these grounds he prays for
allowing the Writ Petition.
20. Having heard the learned advocates appearing
for the parties, I am of the considered view that
following points would arise for my consideration:
31
(1) Whether petitioner in W.P. No. 15880/2007
is entitled for any relief as sought for?
(2) Whether the appointment of Director to
the third respondent Institute is governed
by the Cadre and Recruitment Regulations,
1997 or is it by any other
Rules/Regulations?
OR
Whether selection and appointment of
Director to third respondent -Institute is to
be made by the State Government alone?
(3) Whether petitioner has any indefeasible
right to seek for being appointed as the
Director of the third respondent Institute?
(4) Whether the impugned order dated
24.3.2008 Annexure-M is liable to be
quashed or set aside or to be affirmed?
(5) What order?
21. Before proceeding to delve upon the points
formulated herein above it would be necessary to
narrate the background of the case since it has a past
history which has led to present litigation.
BACKGROUND OF THE CASE:
22. Third respondent Institute was initially
established under the name "Karnataka State
32
Sericulture Development Institute" on 10.4.1980 and it
was registered as a Society under the provisions of
Karnataka Societies Registration Act, 1960. The name
of the Institute came to be changed to the present one
i.e. "Karnataka State Sericulture Research and
Development Institute” (hereinafter referred to as
“Institute” for brevity) with effect from 19.1.1994.
23. Fifth respondent herein and two other
scientists had approached this Court by filing Writ
Petition No.6632/2001 seeking for quashing of the age
limit of 50 years prescribed for Selection to the post of
Director under The Karnataka State Sericulture
Research and Development Institute Cadre and
Recruitment Regulations 1997 (hereinafter referred to
as “C & R –1997”). This Court, by order dated
1.3.2006 disposed off the said Writ Petition directing
that anomaly committee constituted by the Institute
shall consider the representations dated 5.3.2000 and
6.3.2000 submitted by fifth respondent and others in
accordance with law. The said anomaly committee held
its proceedings on 09.08.2006 and 22.9.2006 and
33
recommended for relaxation of age limit as "Below 50
years for external candidates and below 53 years for
internal candidates" vide Annexure-R1.
24. The Governing Council of the third
respondent Institute at its meeting held on 18.12.2006
passed a resolution amending C & R -1997 whereby the
age-limit for the post of Director was resolved to be
prescribed as "Below 53 years on the date on which
vacancy of the post of Director accrued in respect of
internal candidates".
25. The said resolution was forwarded by the
Institute for approval of the State Government. The
State Government by its communication dated 9.2.2007
(Annexure-B to the Writ Petition No.8085/2008 and
Annexure-R3 to the statement of objections filed by fifth
respondent) approved the amendment as "below 55
years as on the date on which the post of Director
became vacant in respect of internal candidates
only". Petitioner in Writ Petition No.8085/2008 made
a representation on 22.2.2007 requesting the
34
Government to fix the age at 53 years for internal
candidates and cut off date for the age limit as last date
fixed in the notification for receipt of the applications as
per Annexure-R8. Likewise, some of the scientists of
the institute had also made representations to the
Government to the same effect. Said representation
came to be forwarded by the Government to the third
respondent institute by communication dated 28.2.2007
Annexure-R9. The Director intimated first respondent
Government by communication dated 31.5.2007
Annexure-R6 to reconsider and give approval for fixing
maximum age limit for in-service candidates from 55
years to 53 years to the post of Director, so as to take
further action to fill up the post of Director of third
respondent institute. First respondent accepted the
said recommendation/request made by the Director of
third respondent Institute and conveyed its approval for
amendment of the C & R-1997, by order dated
26.06.2007, Annexure-E. Whereunder the age limit for
the post of Director was fixed as "below 53 years for
35
internal candidates on the last date fixed for receipt
of applications".
26. During this interregnum period i.e., after the
anomaly committee’s recommendation and before
approval of resolution dated 18.12.2006 by the
Government on 09.02.2007 one Dr.S.R.Katti, who was
working as a Scientist-D in third respondent Institute
had approached this court seeking for quashing of the
notification dated 05.01.2007, whereunder the services
of Dr.U.D.Bongale who had been placed as incharge
Director of the third respondent Institute had been
continued as Director till regular Director was appointed
by the Selection Committee. Said notification came to
be set aside by this Court by order dated 27.2.2007 and
it was up held by Division Bench by Judgment dated
14.06.2007 in WA No.461/2007 directing regular
appointment to be made to the post of Director within a
period of four months. Government was also permitted
by Division Bench to post any competent person to hold
the charge of the post of Director until regular
appointment was made.
36
27. Pursuant to the order of approval dated
26.06.2007 (Annexure-E) granted by the Government
third respondent issued a notification dated 15.07.2007
Annexure-F inviting applications for the post of Director
to 3rd respondent Institute, whereunder the age limit
was fixed as "Below 53 years for internal candidates
on the last date fixed for receipt of applications". In
all, 15 applications were received pursuant to the said
notification. Selection Committee held its meeting on
18.09.2007, considered the applications received.
Selection Committee found that as per the qualifications
prescribed under the notification only four persons were
eligible to be considered for the said post, which
included the petitioner amongst other three candidates.
In the said meeting, the committee decided to meet
again and to call for the interview of the eligible
candidates and to take a final decision and to
recommend from amongst them a candidate for
appointment to the post of Director. Petitioner was
informed of the proposed interview to be held on
8.10.2007 at 3.00 p.m. by communication dated
37
28.9.2007 Annexure-H. Committee held its meeting on
8.10.2007 at 3.00 p.m. and after interviewing the
candidates, recommended to the State Government the
candidature of the petitioner (in W.P.8085/2008) to the
post of Director of 3rd respondent institute. The said
recommendation was forwarded by the Chairman of the
Selection Committee to the first respondent Government
intimating the out come of the selection process. Fifth
respondent herein submitted a representation dated
26.11.2007 Annexure-R10 to the first respondent
Government seeking cancellation of said
recommendation of petitioner with a prayer that age
relaxation order issued by the Government dated
26.06.2007 be set aside and to accept the Government
Order dated 09.02.2007 whereunder age limit upto 55
years had been fixed and seeking for issuance of fresh
notification. The first respondent Government after
several deliberations, confabulations and after obtaining
the opinion from the Law Department resolved to
withdraw the approval order dated 09.02.2007
(Annexure-B) and 26.06.2007 (Annexure-E) and granted
38
approval of the amendment as per the resolution passed
by the Governing Council of the third respondent
Institute at its 44th meeting held on 18.12.2006 by
order dated 24.3.2008 Annexure-M and thereby
approving the resolution dated 18.12.2006 passed by
the third respondent Institute whereunder it had been
resolved to fix the age limit for the post of Director as
"below 53 years on the date on which vacancy arises
for internal candidates".
28. Pursuant to the said order Annexure-M
issued by the Government, notification dated 17.5.2008
Annexure-N was issued inviting applications for the
post of Director of the third respondent Institute. At
that point of time petitioner also applied to the post of
Director of the Institute and simultaneously challenged
the Government order dated. 24.03.2008 Annexure-M
and Notification dated. 17.05.2008 Annexure-N in the
present Writ Petition No.8085/2008 on 10.06.2008.
29. This Court by order dated 11.07.2008 has
passed an interim order permitting the Selection
39
Committee to interview all the candidates and not to
announce the results pending disposal of the present
Writ Petition and said order is in force till date.
In this factual background now let me examine the
points formulated hereinabove.
RE POINT NO.1:
30. Petitioner in Writ Petition No.15880/2007 has
sought for a mandamus to direct the respondents to
consider his case for appointment to the post of Director
of the 3rd respondent- Institute pursuant to notification
dated 15.7.2007 - Annexure-F and to appoint him to the
said post, contending interalia that he is possessing
requisite qualification and he is the only candidate out
of other three candidates who were called for interview
who has completed Ph.d in Sericulture and as such, he
contends action of the Selection Committee in not
issuing interview letter to the petitioner though the date
of interview was fixed as 8.10.2007 at 3.00 p.m. is
erroneous and bad in law.
40
31. Petitioner was appointed as Scientist-C and was
working in Agroneum section as Scientist-C. Notification
dated 15.7.2007 came to be issued inviting applications
for the post of Director, whereunder qualification that
has been prescribed is:
"15 (fifteen) years of Post Doctoral ResearchExperience as evidenced by ResearchPublication, of which five (5) years in anybranch of Sericulture in the grade ofScientist-D and above or equivalent"
This is a pre-requisite qualification for considering
application for the post of Director. Petitioner applied
for the said post on 24.08.2007. The Selection
Committee has met on 18.09.2007 and in the
proceedings recorded by it as seen from the original
records said committee has considered all the 15
applications received by it including that of the
petitioner and has found that petitioner is not eligible
for being considered on the ground that he is Scientist-
C and has not worked as Scientist-D for a period of five
years. At this juncture it would be necessary to notice
that an applicant has a right to be considered and mere
inclusion of his name within the zone of consideration
41
would not clothe him with a right to seek appointment
order being issued in his favour even though he does
not fulfill the eligibility criteria fixed. There is no vested
right of the petitioner which has been violated. In that
view of the matter, it cannot be held that non-issuance
of letter of interview by the Selection Committee to be
contrary to the C & R - 1997 or there being violation of
any other provisions. It is also to be noticed that
pursuant to the proceedings of the Selection Committee
held on 08.10.2007 four persons were interviewed and
name of Dr.J. Sukumar (petitioner in Writ petition
8085/2008) had been recommended to the Government
for the post of Director of the third respondent
Institute. Petitioner has not taken any steps to
challenge the said recommendation and even otherwise
the first respondent Government by order dated
24.3.2008 has already withdrawn the orders dated
09.02.2007 and 26.06.2007 by virtue of which
Notification dated 15.07.2007 Annexure-F had been
issued and thereafter the third respondent Institute has
issued fresh notification dated 17.05.2008 Annexure-N
42
calling for applications from eligible candidates and the
selection committee has also met thereafter and had
held the interview on 14.07.2008, which action/orders
have also not been challenged by the petitioner and as
such, petitioner is not entitled for the relief sought for in
the Writ Petition. Accordingly, Writ Petition
15880/2007 stands rejected.
RE POINT NO.2:
32. Notification Annexure-N dated 17.5.2008 was
issued calling for applications for recruitment to the
post of Director in the grade of SCIENTIST - 'F'. The
main thrust of the argument advanced by the learned
counsel for petitioner in this regard is: first respondent
Government by order dated 26.06.2007 Annexure-E had
approved the C & R - 1997 of 3rd respondent institute,
whereunder age limit fixed was "below 53 years for
internal candidates on the last date fixed for receipt of
applications", and for purpose of selecting the
candidates a Selection Committee had been constituted
and pursuant to same a notification dated 15.7.2007
Annexure-F had been issued calling for applications
43
pursuant to which interviews were held and petitioner’s
name was recommended by the said Selection
Committee. When the said factual matrix existed, the
impugned order dated 24.3.2008 Annexure-M has been
passed at the behest of fifth respondent leading to
issuance of fresh notification dated 17.05.2008 and
thereby annulling earlier selection which is illegal.
Petitioner contends that third respondent institute has
been registered under the Societies Registration Act and
appointment to the post of Director will have to be made
by the Government only under clause 14 and clause
19A of the Memorandum of Association and as such,
the appointing authority is only the Government and
none-else. He contends that Cadre and Recruitment
Regulations-1997 is not at all applicable for selection of
Director since Rule 19A of the Memorandum of
Association is in super-session of other Rules as stated
in the Memorandum of Association and as such the
Institute or the Selection Committee has no power to
appoint Director of 3rd respondent Institute and it is the
State Government alone which has right to select and
44
appoint. He contends that Rule 14 of Memorandum of
Association is applicable and Rule 20 of MOA would
clearly go to show that only persons appointed under
Rule 15, 18 and 19 are governed by such bye laws
framed by Governing Council and Director has been
excluded from its purview and as such C&R 1997 is
inapplicable in so far as appointment of Director to 3rd
respondent institute is concerned.
33. The Memorandum of Association (hereinafter
referred to as MOA for brevity) and Cadre Recruitment
Regulations have been produced by the petitioner along
with a memo dated 03.01.2011. As seen from the said
memo, proceedings of the Government of Karnataka and
the order No.CI 166 SLP 80, Bangalore dated 7th March
1981 is also appended thereto would go to show that an
order has been passed by the Government of Karnataka
approving the Memorandum of Association of 3rd
respondent Institute. Thus, there cannot be any
dispute with regard to the approval granted by the first
respondent - State approving the Memorandum of
Association of third respondent institute. The Rules
45
and Regulations of the third respondent Institute is part
and parcel of said Memorandum of Association.
34. Under clause 5 of the Memorandum of
Association, administration of the Institute vests with
the Governing Council.
35. A perusal of clause 10(4)(b) of MOA would go
to show that Governing Council is empowered to make
bye-laws as deemed essential for the regulation of the
business of the Institute.
36. As already noted hereinabove third respondent
Institute has framed Cadre & Recruitment Regulations
known as "The Karnataka State Sericulture Research &
Development Institute Cadre and Recruitment
Regulations 1991, which came to be revised in the year
1997 and duly approved by the Government vide order
No.CI 120 SLS 98 DATED 8.1.1998 and (C & R-1997).
The said C & R- 1997 has been made applicable to all
the employees of the Institute appointed in accordance
with the said Regulations.
46
Rule 2 of C & R-1997 defines various words occurring in the
Cadre and Recruitment Regulations, 1997. Some of the
definitions which are relevant for the purposes of this case
are enumerated hereinbelow.
2. DEFINITIONS:
In these Regulations, unless the context otherwise
requires,
6) 'Director' means the Director of the Institute.
8) 'Direct Recruitment' -means appointmentagainst a post sanctioned for a period exceedingthree years in accordance with these regulationsotherwise than by promotions or transfer fromany Civil Service of Government or Local or otherauthorities but shall not include appointmentmade on contract basis.
37. As per Annexure-I of the C & R 1997 the existing
cadre strength and recommended, classification of posts of
the Institute are specified therein. As per Annexure-II of C&R
–1997 the mode of Recruitment, qualification, age limit have
been prescribed.
38. Rule 13 prescribes for the purpose of Direct
Recruitment, there shall be a Selection Committee and sub
Rule (1) of Rule 13 prescribes a committee comprising of the
persons referred to therein is to be constituted when the post
of a Director of the Institute
47
is to be filled up. As per Annexure-II to the said C & R -
1997 the qualifications for the post of Director has been
specified at item No.1. The age limit prescribed
thereunder was 50 years. Which has been subsequently
amended by the third respondent-Institute and which
came to approved by Government with certain
modification and thereafter Government has retraced its
steps and restored the approval made by 44th Governing
Council Meeting of third respondent-Institute. It is this
Rule in C & R –1997 which is subject matter of
challenge in this writ petition and pursuant
notifications issued thereunder.
39. In order to examine the contentions raised it
would be necessary to note certain facts. Third
respondent Institute has been registered under the
Karnataka Societies Registration Act, 1960 and it is
evidenced from the certificate of Registration dated. 7-3-
1981 filed along with a memo dated 3.1.2011. The first
respondent State has by order dated 7.3.1981 approved
the Memorandum of Association of third respondent
Institute for its adoption so as to commence its activities
48
vide order NO.166 SLP 80, BANGALORE, DATED THE
7TH MARCH, 1981. As noted herein above under clause
5 of the Memorandum of Association, the
administration of the 3rd respondent Institute vests with
the Governing Council and the composition of the
Governing Council is as under:
1) The Secretary to Government,Commerce & Industries department - Chairman
2) The Secretary to Government,Finance Department - Member
3. The Director of Sericulture - Member
4. Professor of Zoology of a
University established by law inKarnataka to be nominated byGovernment in consultation withthe Chancellor - Member
5. The Director,
Central Sericultural ResearchAnd Training Institute, Mysore - Member
6. The Director,Karnataka State SericultureDevelopment Institute, Bangalore - Member
Secretary
40. The Memorandum of Association and the
Rules and Regulations of the third respondent Institute
is part of the said Registration made under the
49
Karnataka Societies Registration Act. The powers and
functions of the Governing Council of third respondent
institute is regulated by Rule 10 of the Rules and
Regulations. Under sub- Rule (3) of Rule 10 the
Governing Council has the power to add, alter or amend
the rules and regulations and bye laws of the institute
consistent with the institute's Registration Act (which
should have been “with the Societies Registration Act”)
and subject to approval of the Government under Rule
10(4)(6) Governing Council is empowered to make bye-
laws as deemed essential for regulation of the business
of the institute. Rule 14 of MOA empowers the
Government to appoint a Director to the 3rd respondent
- Institute which will be for a period of 5 years. Rule
19A provides for the State Government to appoint or
recommend the appointment of the Director and other
staff by direct recruitment or by deputation of officers of
the State Government, notwithstanding anything
contained in Rules 13 to 19 of MOA.
41. In the background of these provisions it is to
be examined whether it is the Government alone which
50
is empowered to appoint a Director of the institute or it
is the Selection Committee which constituted under
Regulation 13 of C & R-1997 which is empowered to
select and send its recommendation to the Government
for making appointment. Hence Rule 14 and 19A of
MOA are extracted, which reads as under:
14 - Appointment of Director:
1. The appointment of Director including firstDirector always be made by the Government
and such appointment shall be for a period offive years.
2. The Director shall be in overall administrativecontrol and management of the Institute.
19A - Powers of the State Government with regard toappointment of staff of the Institute:
Notwithstanding anything contained in Rules 13to 19, the State Government shall have the
authority to appoint or recommend theappointment of the Director and other staff, bydirect recruitment or deputation of officers of theState Government as the State Government mayconsider it appropriate from time to time.
42. In exercise of the Powers Conferred by Rule
10(3) and 10(4)(b) of the MOA of 3rd respondent
Institute, bye-laws of the institute has been framed
51
whereunder constitution of Selection Committee is
provided amongst other provisions. Under clause 2(k) of
the bye laws rules have been defined to mean and
include the Rules and Regulations of the institute.
Clause 9 (1) provides for prescribing Age, experience
and other qualifications for appointment to all posts in
the institute. Clause 2(g) of the Bye-laws defines as to
who is the “Controlling Authority” in relation to posts in
Classes I and II, it would be Governing Council, and in
relation to posts in classes III and IV the Director of the
institute as noted hereinabove. Clause 10 of the bye
laws provides for constitution of a selection committee
for appointment. Under clause 10(1) Selection
Committee has to make recommendations to Governing
Council/Director for appointment of various posts. The
said clause reads as under:
1. There shall be a Selection Committee to
make recommendations to the Governing
Council/ Director for appointments to various
posts. The constitutions of the committee
shall be noted in the Cadre and
Recruitment Rules.
(emphasis supplied by me)
52
43. By virtue of same third respondent-institute
has framed C & R Rules, 1997 as already noted above,
which interalia provides for filling up of various posts in
the third respondent institute. It is to be noticed at this
juncture contention of Sri.Rajagopal, learned Senior
Counsel appearing for the petitioner that Government
alone is the appointing authority even if taken into
consideration for a moment, the C & R -1997 which has
been duly approved by the Government by its order
No.CI 120 SLS 98 Dated 18.04.98 provides for Selection
of Director by a Selection Committee. Under the said C
& R -1997 as already noted hereinabove, Selection
Committee consisting of five persons is provided for
under Rule 13. Likewise for appointment to various
other posts in the third respondent -institute under sub
Rule (2) to (5) of Rule 13 the composition of the
Selection Committee has been enumerated. As per
Annexure-II to the said Regulations it has been specified
that selection to the post of ‘Director’ shall be by
`direct selection' and other requisite qualifications has
also been specified thereunder.
53
44. A combined reading of the above provisions
would clearly go to show that under the Memorandum
of Association, Rules and Regulations and bye laws of
the institute as also C & R - 1997 which is duly
approved by Government the selection to the post of
Director is to be made by a Selection Committee which
recommends to Government for being approved by it.
As such clause 14 or clause 19A of MOA cannot be read
in isolation and a harmonious reading has to be done to
effectuate the purpose for which it is framed and not to
negate it. It would also emerge that under the Rules
and Regulations as well as bye laws, the Government
has been designated as the appointing authority which
has to make appointments on the basis of the
recommendations of the Selection Committee
constituted under C & R Rules, 1997 in so far as posts
of Class I and II. The mode of recruitment for the post
of Director has been specified would be by direct
selection. Admittedly Memorandum of Association and
Rules and Regulations of the institute have been
registered under the Societies Registration Act. In fact
54
C & R - 1997 framed by the third respondent-institute
have also been duly approved by the Government and
there cannot be any qualms on this issue.
45. Under Rule 13(1) of C & R-1997, the post of
Director is required to be filled up by a direct
recruitment by a selection committee comprising of the
members as stated therein namely;
(i) The Vice Chancellor,University of Agricultural SciencesIn Karnataka …Chairman
(ii) The Commissioner & Secretary to
Government of Karnataka,Commerce & Industries Dept. …Member
3. The Commissioner for SericultureDevelopment & Director of Sericulture,Government of Karnataka. …Member
4. The Director of any SericultureResearch Institute. …Member
5. A Senior Professor of Zoology/Botany/Entomology/Sericulture of any
University in Karnataka. …Member
The Chairman of the said committee is the Vice
Chancellor first above named and others are members
of the said selection committee. Under Rule 15, the
55
selection committee would interview the eligible
candidates or select them in accordance with the
procedure indicated in Rule 10 and thereafter such
selection committee under Rule 16(1) will prepare in the
order of merit a list of candidates eligible for
appointment to the cadre or post. Under regulation 17,
the appointing authority would appoint the candidates
whose names are included in the list specified in
Regulation 16(1) and 16(2). Thus, the area within
which the selection committee operates is for the limited
purpose of selecting a candidate from out of the eligible
candidates interviewed and thereafter prepare in the
order of merit a list of candidates eligible for
appointment to the cadre or post. The selection
committee is not the appointing authority. The
‘appointing authority’ is the State Government as
defined under Rule 2 of C & R –1997 insofar as Director
is concerned. Rule 4 provides for method of recruitment
and qualification in relation to each post or categories of
posts as specified in Annexure-II to the said Rules. As
per Annexure-II, the mode of recruitment to the post of
56
Director is by ‘Direct Selection’ and the appointing
authority empowered to appoint Director of 3rd
respondent Institute is Government of Karnataka as
prescribed thereunder. Thus, it can be noticed that
selection committee and appointing authority are two
separate and distinct entities and it cannot be
understood that either selection committee is appointing
the candidates selected by it or the appointing authority
is selecting the candidates. In the instant case, when
the facts are examined in the background of these
Rules, it can be noticed that neither the selection
committee has made any attempts to appoint any
candidate selected by it to the post of Director of the
Institute or the Government has made any attempts to
select the candidates for the post of Director of Institute.
Thus, the role of these two namely ‘selection
committee’ and the ‘appointing authority’ are
independent, separate and distinct. Neither of them are
exercising the role of other nor they are exercising dual
roles.
57
46. It is also to be noticed in the instant case that
in the first instance when the petitioner Dr.J.Sukumar
was recommended by the selection committee, which
was constituted for the purposes of selecting the
Director of the Institute same is accepted by him and in
fact he stakes his claim for being appointed by virtue of
such selection made by said Selection Committee. Even
according to the petitioner, said selection committee
had selected the petitioner and had made
recommendation on 8.10.2007 to the first respondent
Government to appoint him as Director of the Institute.
In other words, petitioner himself does not dispute the
fact of the role of the selection committee as well as the
role of the Government. Thus, petitioner having
participated in the selection process cannot now turn
around and contend that selection process is improper
or the appointment by way of selection is to be made by
the Government of Karnataka alone and not by the
selection committee and in fact such a situation does
not existed at all. In this regard, the judgments of the
Hon'ble Apex Court referred to herein below would
58
clearly go to show that when candidate accepts the
procedure adopted by the selection committee such
candidate cannot turn around thereafter to contend
that selection process itself is improper, particularly
when there is acquiescence. The judgments are as
under:
(i) AMLAN JYOTI BAROOAH-V/S- STATE OFASSAM REPORTED IN (2009) 3 SCC 227
29. The question which, however, arises forconsideration is as to whether despite thesame, we, in exercise of our jurisdictionunder Article 136 of the Constitution ofIndia, should interfere with the impugned
judgement.
30. Appellant concededly did not questionthe appointment 169 candidates. It is idle tocontend that he was not aware thereof. If hewas to challenge the validity and / or legality
of the entire select list in its entirely, heshould have also questioned the recruitmentof 169 candidates which took place as farback as on 4.7.2000.
31. Appellant was aware of his position in
the selection list. He was also aware of thechange in the procedure adopted by theSelection Committee. He appeared at theinterview without any demur whatsoeveralthough was not called to appear for thephysical ability test prior thereto. Appellant
chose to question the appointment of 77candidates not only on the premise that theprocedure adopted by the Selection
59
committee was illegal but also on thepremise that no new vacancy could havebeen filled up from the select list.
32. Appellant, in our opinion, havingaccepted the change in the selectionprocedure sub silentio, by not questioningthe appointment of 169 candidates, in ourconsidered opinion, cannot now be permitted
to turn round and contend that theprocedure adopted was illegal. He isestopped and precluded from doing so.
(ii) (2007) 8 SCC 100- Union of India v/s S. Vinodh
Kumar
“18. It is also well settled that thosecandidates who had taken part in theselection process knowing fully well the
procedure laid down therein were notentitled to question the same. (See MunindraKumar V/s Rajiv Govil) (See also RashmiMishra V/s M.P. Public Service Commission)
47. In that view of the matter I am of the
considered view that Point No.2 has to be held by
concluding that appointment to the post of Director of
third respondent -institute is governed by C & R, 1997
by the mode prescribed namely to be made by the State
Government by considering the recommendation of the
Selection Committee.
60
RE POINT NO. 3 AND 4:
48. The Main thrust of the argument advanced
by Sri.P.S.Rajagopal, learned Senior counsel appearing
for petitioner in this writ petition is that entire selection
process which had been commenced had attained
finality came to be scuttled at the instance of fifth
respondent herein and when the process of selection
had commenced it could not have been stalled or
stopped in the midst by changing the Rules of the game
and such selection process commenced has to reach its
logical end. Before delving upon the point formulated let
me turn my attention to the case- laws on the issue that
governs the process to be adopted while making Direct
Recruitment and relied upon by Learned Counsel for
petitioner:
(i) (2008) 4 SCC 171 - Dhananjay Malik andothers Vs State of Uttaranchal and others
"7. It is not disputed that the writpetitioners- respondents herein participatedin the process of selection knowing fully wellthat the educational qualification was clearlyindicated in the advertisement itself asB.P.E. or graduate with diploma in physical
education. Having unsuccessfullyparticipated in the process of selectionwithout any demur they are estopped from
61
challenging the selection criterion inter aliathat the advertisement and selection withregard to requisite educational qualifications
were contrary to the Rules.
8. In Madan Lal vs. State of J & K, (1995) 3SCC 486, this Court pointed out that whenthe petitioners appeared at the oral interviewconducted by the Members concerned of the
Commission who interviewed the petitionersas well as the contesting respondentsconcerned, the petitioners took a chance toget themselves selected at the said oralinterview. Therefore, only because they didnot find themselves to have emerged
successful as a result of their combinedperformance both at written test and oralinterview, they have filed writ petitions. ThisCourt further pointed out that if a candidatetakes a calculated chance and appears atthe interview, then, only because the result
of the interview is not palatable to him, hecannot turn round and subsequentlycontend that the process of interview wasunfair or the Selection Committee was notproperly constituted.
9. In the present case, as already pointedout, the writ petitioners- respondents hereinparticipated in the selection process withoutany demur; they are estopped fromcomplaining that the selection process wasnot in accordance with the Rules. If they
think that the advertisement and selectionprocess were not in accordance with theRules they could have challenged theadvertisement and selection process withoutparticipating in the selection process. Thishas not been done.
10. In a recent judgment in the case ofMarripati Nagaraja vs. The Government of
62
Andhra Pradesh, (2007) 11 SCR 506 atp.516 SCR this Court has succinctly heldthat the appellants had appeared at the
examination without any demur. They didnot question the validity of fixing the saiddate before the appropriate authority. Theyare, therefore, estopped and precluded fromquestioning the selection process.
11. We are of the view that the DivisionBench of the High Court could havedismissed the appeal on this score alone ashas been done by the learned Single Judge".
49. In the above case the appointments of
Assistant Teachers (Physical Education) was challenged
by the unsuccessful candidates on various grounds.
The learned Single Judge dismissed the writ petition
which came to be reversed in the appeal and same was
assailed in Special Leave Petitions by the selected
candidates. It was held by Apex Court that writ
petitioners had participated in the selection process
knowing fully well about educational qualification
prescribed which had been clearly indicated in the
advertisement and as such it was held that having
unsuccessfully participated in the process of selection
without any demur they are estopped from challenging
the selection. In the instant case on account of a
63
direction issued by Division Bench of this Court in
W.A.461/2007 dated 14.06.2007 the appointment of
Director to the institute was required to be made within
time frame i.e., 4 months from 14.6.2007 and as such
notification dated 15.07.2007 (Annexure-F in
W.P.8085/2008) came to be issued calling for
applications to the post of Director of 3rd respondent
Institute. The Selection Committee on scrutiny of such
applications found four candidates were eligible for the
post as per the C & R Rules and on 11.10.2007 a
representation came to be submitted by the 5th
respondent herein which was in pursuance to the
earlier representations submitted to various authorities
on 23.02.2006, 19.10.2006, 16.07.2007, 06.08.2007
and 14.09.2007 and there was no adjudication of said
representation by the Government. In the meanwhile
the Selection Committee had sent its recommendations
on 08.10.2007 to the State recommending petitioner's
name for being appointed as Director of the Institute.
However, State did not issue any order or publish the
list of selected candidates since the matter was under
64
scrutiny by the Government including the
representation of 5th respondent. The perusal of the
original records made available by the learned
Government Advocate would disclose that at that
relevant point of time the State was under President's
Rule and a decision had to be taken by his excellency
the Governor and thus selection made was at the stage
of consideration. It is well settled principle of law that a
candidate has a right for his name being considered but
does not have a right for being selected. In the instant
case admittedly petitioner's name had been
recommended for being appointed as Director or in
other words the Selection Committee had made the
selection for being approved and appointed by the State.
Even before a decision could have been taken by the
Government, fifth respondent herein had already set in
motion his grievance regarding "age criteria" which had
been prescribed as being erroneous and consequently
selection process also being illegal. The Select List
having not been published by the Government and the
same was still under consideration it cannot be held
65
that mere participation by the fifth respondent in the
selection process would defeat his right to question the
very selection criteria inasmuch as in the instant case
the fifth respondent had already submitted
representations to the authorities bringing to their
notice the anomaly that had crept in the C & R – 1997
much earlier to selection process commenced and he
was pursuing the same before the Government. In this
factual matrix it cannot be held that fifth respondent is
estopped from questioning the said decision of the
Selection Committee made on 08.10.2007. In view of
the same this Judgment does not assist the petitioner.
(ii) (2006) 6 SCC 395 - K.H.Siraj Vs High Court ofKerala and others
73. The appellants/petitioners havingparticipated in the interview in thisbackground, it is not open to theappellants/petitioners to turn roundthereafter when they failed at the interview
and contend that the provision of aminimum mark for the interview was notproper. It was so held by this Court inparagraph 9 of Madan Lal & Ors. Vs. State ofJ & K & Ors. , (1995) 3 SCC 486 as under:"Before dealing with this contention, we
must keep in view the salient fact that thepetitioners as well as the contestingsuccessful candidates being respondents
66
concerned herein, were all found eligible inthe light of marks obtained in the writtentest, to be eligible to be called for oral
interview. Up to this stage there is nodispute between the parties. The Petitionersalso appeared at the oral interviewconducted by the Members concerned of theCommission who interviewed the petitions aswell as the contesting respondents
concerned. Thus the petitioners took achance to get themselves selected at the saidoral interview. Only because they did notfind themselves to have emerged successfulas a result of their combined performanceboth at written test and oral interview, they
have filed this petition. It is now well settledthat if a candidate takes a calculated chanceand appears at the interview, then, onlybecause the result of the interview is notpalatable to him, he cannot turn round andsubsequently contend that the process of
interview was unfair or the SelectionCommittee was not properly constituted. Inthe case of Om Prakash Shukla vs. AkhileshKumar Shukla, 1986 suppl SCC 283, it hasbeen clearly laid down by a Bench of threelearned Judges of this Court that when the
petitioner appeared at the examinationwithout protect and when he found that hewould not succeed in examination he filed apetition challenging the said examination,the High Court should not have granted anyrelief to such a petitioner."
74. Therefore, the writ petition filed by theappellants/petitioners should be dismissedon the ground of estoppel is correct in viewof the above ruling of this Court. Thedecision of the High Court holding to the
contrary is in per curiam without referenceto the aforesaid decisions.
67
50. In this case recruitment was made by the
High Court of Kerala to the post of Munsiff-Magistrate
under Kerala Judicial Service and same was questioned
by the appellants who sought for quashing of the select
list on the ground it is contrary to the principles and
rules relating to reservations. The learned Single Judge
held that selection of some of the candidates as illegal.
Said Judgment came to be questioned by the High
Court of Kerala before Division Bench and by its final
Judgment the High Court allowed the appeal and set
aside the Judgment of the learned Single Judge by
holding that selections and appointments made were
regular in all respects. The Hon'ble Apex Court
dismissed the Special Leave Petition and affirmed the
order of the Division Bench. It was held therein that
candidates who participated in the interview had
knowledge that they had to secure prescribed minimum
pass marks for being selected and being unsuccessful in
interview they could not have turned round and
challenge the said provision of fixation of minimum
marks was improper. Their Lordships have held that
68
such challenge is liable to be dismissed on the ground
of estoppel by invoking section 115 of the Indian
Evidence Act, 1872. In the instant case the proceedings
of the Selection Committee (Annexure-G in
W.P.8085/2008) would clearly go to show that only four
candidates were held to be eligible for being considered
to be appointed as Director of Institute. Fifth
respondent was held to be over aged by 10 months 9
days as on the last date of receipt of application and
consequently it held that he is not eligible. The records
would go to show that fifth respondent was not in the
select list or was not in the zone of consideration. Mere
submission of an application would not disentitle the
fifth respondent to question the selection since he had
been eliminated from the zone of consideration itself as
being over aged when he was simultaneously and
parallelly pursuing his grievance with the authorities by
bringing it to their notice about the disparity with
regard to age criteria. It cannot be held that he had
acquiesced in the selection process and as such he was
estopped from challenging the selection or contending it
69
to be erroneous. Hence, the said Judgment is
inapplicable to the case on hand.
(iii) (2000) 9 SCC 283 - Munna Roy Vs Union ofIndia and others
2. The appellant, pursuant to an
advertisement issued by the RailwayRecruitment Board for the post of CraftTeacher (Bengali Medium), applied for thesame. She possesses qualification of agraduate. On the basis of a written test heldthereafter, she was successful, and then was
called for the interview. But after theinterview was over and a select list waspublished wherein her name also appearedbut as no appointment letter was issued, shemoved the Central Administrative Tribunal.While the application was pending before the
Tribunal, the Railway Recruitment Boardcancelled the panel by order dated 5.9.1996on the ground that there has been sufficientirregularities in the matter of selection, theappellant, therefore, filed an applicationbefore the Tribunal for setting aside the
order of cancellation and directing the Boardto complete the recruitment process. TheTribunal allowed the said application.Against the order of the Tribunal, the matterwas taken to the High Court and the HighCourt having interfered with the order of the
Tribunal, the appellant has approached thisCourt. The High Court while interfering withthe order of the Tribunal, has taken intoconsideration the fact that mere inclusion ofa person's name in the list does not conferany right and, therefore, Mandamus cannot
be issued. The aforesaid enunciation as aproposition of law cannot be disputed.However, if the administrative authority
70
takes a decision and the reasons for suchdecision are erroneous then such a decisioncan be interfered with by Court of Law. In
the case in hand the appellant pursuant toan advertisement had applied for and shehad the requisite qualification. She becamesuccessful in the written test as well as inthe viva-voce. The list of successfulcandidates included her name but the
ground for cancellation of the entire listwithout even informing the appellant wasthat though the minimum qualificationrequired was a matriculate she was agraduate and thus dubious method has beenadopted for being selected. We really fail to
understand that if a candidate possesses aqualification higher than the requiredqualification and the advertisement itselfhad prescribed the same then how can theauthority come to a conclusion that selectionhas been made by adopting a dubious
method. In the aforesaid premises, we haveno hesitation to come to a conclusion thatthe reasons which weighed with theauthorities to quash the selection are notgermane and must be held to be arbitraryand irrational. We, therefore, set aside the
impugned order of the High Court as well asthe order of the concerned authoritiesquashing the selection panel and direct thatthe order of the Tribunal be implemented.
51. In the said case appellant had applied for
the post of Craft Teacher (Bengali Medium) and she was
successful in the written test and was called for
interview. Her name was found in the select list
published. On account of appointment letter not being
71
issued she approached the Central Administrative
Tribunal and same held that there was sufficient
irregularities in the matter of selection and directed the
Board to redo the matter. High Court set aside the order
of the Tribunal which was not interfered by the Hon'ble
Apex Court on the ground that High Court was correct
in holding inclusion of person's name in the list does
not confer any right. Infact this decision assists the
fifth respondent more than the petitioner since
petitioner in the instant case is seeking for issuance of
mandamus to the first respondent to appoint him on
the basis of the recommendation sent by the Selection
Committee on 08.10.2007 whereunder the name of the
petitioner had been recommended by the Selection
Committee for being appointed as Director of the
Institute and admittedly petitioner’s name had not got
crystallized into a select list in the instant case. Hence,
said Judgment does not assist the petitioner in any
manner whatsoever.
(iv) (1993) 1 SCC 154 - Union Territory ofChandigarh Vs Dilbagh Singh and others
72
11. In Shankarasan Das v. Union of India,reported in JT (1991) 2 SC 380, a ConstitutionBench of this Court which had occasion to
examine the question whether a candidate seekingappointment to a civil post can be regarded tohave acquired an indefeasible right toappointment in such post merely because of theappearance of his name in the merit list (selectlist) of candidates for such post has answered the
question in the negative by enunciating thecorrect legal position thus:
"it is not correct to say that if a number ofvacancies are notified for appointment andadequate number of candidates are found fit,
the successful candidates acquire anindefeasible right to b appointment whichcannot be legitimately denied. Ordinarily thenotification merely amounts to an invitation toqualified candidates to apply for recruitmentand on their selection they do not acquire any
right to the post. Unless the relevantRecruitment Rules so indicate, the State isunder no legal duty to fill u p all or any of thevacancies. However, it does not mean that theState has the licence of acting in an arbitrarymanner. The decision not to fill up the
vacancies has to be taken bonafide forappropriate reasons. And if the vacancies orany of them are filled up, the State is boundto respect the comparative merit of thecandidates, as reflected at the recruitmenttest, and no discrimination can be permitted.
This correct position has been consistentlyfollowed by this Court, and we do not find anydiscordant note in the decisions in the Stateof Haryana v. Subbash Chander Marwaha andothers. [1974] 1 SCR 165; Miss NeelimaShangla v. State of Haryana and others,
[1986] 4 SCC 268, or Jitendra Kumar andothers v. State of Punjab and others: [1985] 1SCR 899."
73
12. If we have regard to the above enunciationthat a candidate who finds a place in the
select list as a candidate selected forappointment to a civil post, does not acquirean indefeasible right to be appointed in suchposting the absence of any specific Ruleentitling him for such appointment and hecould be aggrieved by his non- appointment
only when the Administration does so eitherarbitrarily or for no bona fide reasons, itfollows as a necessary concomitant that suchcandidate even if has a legitimate expectationof being appointed in such posts due to hisname finding a place in the select list of
candidates, cannot claim to have a right to beheard before such select list is cancelled forbona fide and valid reasons and notarbitrarily: In the instant case, when theChandigarh Administration which receivedthe complaints about the unfair and
injudicious manner in which select list ofcandidates for appointment as conductors inCTU was prepared by the Selection Boardconstituted for the purpose, found thosecomplaints to be well founded on an enquirygot made in that regard, we are unable to find
that the Chandigarh Administration had actedeither arbitrarily or without bona fide andvalid reasons in cancelling such 0dubiousselect list. Hence, the contentions of thelearned counsel for the Respondents as to thesustainability of the Judgment of CAT under
appeal on the ground of non-affording of anopportunity of hearing to the Respondents(candidates in the select list) is amisconceived one and is consequentlyrejected.
74
52. In the above case applications for filling up
32 vacancies of conductors in Chandigarh Transport
Undertaking (CTU) was invited and Regional
Employment Exchange of the Union Territory of
Chandigarh was required to sponsor the names of
eligible candidates and three member selection board
constituted by Chandigarh administration was required
to prepare a select list of 32 candidates out of the total
number of the applicants. On interview being conducted
a select list of 32 candidates was prepared by the
selection board which was on the basis of the marks
awarded for their educational qualification plus the
marks awarded for their performance at the interview, a
criteria which was said to have been followed by a
Selection Board constituted for a similar purpose in the
year 1953. The select list of 32 candidates was
announced. On account of severe criticism from the
members of both public and the press as to the role of
the members of the Selection Board of favouritism,
nepotism etc., it compelled the Chandigarh
administration to get the issue examined and on such
75
scrutiny it concluded select list of candidates for
appointment as conductors in CTU had not been
prepared by the members of the Selection Board fairly
and judiciously and as such it cancelled the select list of
candidates and constituted a new Selection Board to
prepare a fresh select list of candidates including those
who had been interviewed by the earlier selection board
as per fresh selection criteria prescribed. Those
applicants whose names were found in the select list
approached Central Administrative Tribunal,
Chandigarh and Tribunal set aside the order of he
Chandigarh administration which had cancelled the
earlier select list and directed it to appoint the
candidates from the cancelled list or in other words to
appoint those candidates whose name were found the in
first select list. This Judgment of the Central
Administrative Tribunal came to be set aside by the
Hon’ble Apex Court by holding a candidate selected for
appointment to a civil post does not acquire an
indefeasible right and also it was held in the said
judgment that the decision not to fill up the vacancies
76
had been bonafide taken by Administration for
appropriate reasons. It is this reasoning of the Apex
Court which Sri.P.S.Rajagopal, learned Senior Counsel
appearing for petitioner contends would be applicable to
the facts of the case on the premise that the decision
taken by the Government not to approve the
recommendation made by the Selection Committee is
not with any bonafide reasons but on the other hand
with an intention to accommodate the fifth respondent
alone.
53. In the first instance it is to be noticed that
merely because the petitioner herein had been
recommended by the Selection Committee for being
appointed as Director of the Institute by itself would not
create an indefeasible right in him to be appointed as
Director of third respondent-Institute. A notice inviting
applications from the candidates is an open invitation to
the candidates qualified to apply for such post. Further
even if selected or recommended by the concerned
selection committee it does not create any unqualified
right to such candidate until and unless the
77
recruitment rules itself specifies so. The selection
authority or the authority which approves the selection
even at the stage of considering the recommendation
made by the Selection Committee is entitled to examine
the issue as a whole or in other words it is empowered
to look into as whether selection process was fair and
proper or the relevant rules and regulations applied by
selection committee was in accordance with law or there
being any illegality that had crept in during such
Selection or recommendation as per extant rules or
regulations and if found to be, it is empowered to
withhold the select list or resolve or decide not to issue
appointment letter.
54. In this background when the facts on hand
are examined it would clearly go to show that by
resolution adopted by the institute at its 44th Governing
Council meeting it had made a recommendation
regarding fixation of age for appointment of Director to
the Institute and same came to be modified by the
Government and therefore Government came to
conclusion that it was contrary to provisions of
78
Memorandum of Association and bye laws of the
institute and as such it did not act upon the
recommendation of the Selection Committee but
proceeded to examine the grievance of the aggrieved
persons and as such it cannot be held that either the
Government has acted in arbitrary manner or the
petitioner would get any indefeasible right to be
appointed only on the ground that his name had been
recommended by the Selection Committee. In view of
the same the Judgments relied upon by the petitioner
does not assist him in any manner whatsoever.
55. It is also necessary to observe at this
juncture itself that as to whether the action of the State
in not accepting the recommendations of the Selection
Committee is arbitrary or capricious. As discussed
herein supra, State had accorded its approval to
amendment of C & R - 1997 of the institute on
09.02.2007 vide Annexure-B under which the age for
appointment of Director of Institute had been prescribed
as below 55 years as on the date on which the post of
Director became vacant. If said amendment is applied
79
virtually all candidates who had applied as internal
candidates would have become eligible to be considered
and they could not have been kept outside the zone of
consideration. However, by virtue of further
amendment to C & R -1997 made on 26.06.2007,
Annexure-E the age limit for internal candidates was
reduced to 53 years by fixing the cut off to be the last
date fixed for receipt of applications and admittedly said
amendment was brought within a time gap of five
months from the date of first amendment which was
made on 09.02.2007. Further there was no resolution
passed by the Governing Council of third respondent
institute recommending such amendment as required
under the bye laws of the institute, and as such the first
respondent Government was of the considered view that
resolution passed at the 44th Governing Council meeting
of the institute was in accordance with law which was
required to be approved and in fact had been approved
but came to be retraced by it by further amendment on
26.06.2007 Annexure-E and same being contrary to the
C & R-1997 and bye laws of the institute the appointing
80
authority namely Government did not except the
recommendation of the Selection Committee which had
recommended the name of the petitioner for being
appointed as the Director of 3rd respondent Institute.
56. The Hon'ble Supreme Court while
considering as to what constitutes arbitrariness has
held in the case of East Coast Railway and another Vs
Mahadev Appa Rao and others reported in AIR 2010 SC
2794 as under:
"8. There is no quarrel with the well settledproposition of law that an order passed by a
public authority exercisingadministrative/executive or statutory powersmust be judged by the reasons stated in theorder or any record or filecontemporaneously maintained. It follows inthe infirmity arising out of absence of
reasons cannot be cured by the authoritypassing the order stating such reasons in anaffidavit filed before the court where thevalidity of such order is under challenge".
"13. It is evident from the above that whileno candidate acquires an indefeasible rightto a post merely because he has appeared inthe examination or even found a place in theselect list, yet the State does not enjoy anunqualified prerogative to refuse an
appointment in an arbitrary fashion or todisregard the merit of the candidates asreflected by the merit list prepared at the
81
end of the selection process. The validity ofthe State's decision not to make anappointment is thus a matter which is not
beyond judicial review before a competentWrit court. If any such decision is indeedfound to be arbitrary, appropriate directionscan be issued in the matter".
57. In the instant case State has filed its
statement of objections on 22.06.2011 and at paragraph
11 and 17 it has been contended as under:
"11.On recommendation of the SelectionCommittee after re-amendment of C & RRules dated 26.06.2007 when the State wasunder Governor Rule on pressure putforthby the petitioner for approval, after detailedexamination of factual aspects and
circumstances followed by legal opinion fromthe law department, having noticed a seriouslapses on legal aspects in the process ofselection against procedure and rules, thethen Government decided to withdraw boththe letters dated 09.02.2007 and 26.06.2007
and approved the resolution dated18.12.2006 of the 44th Special GoverningCouncil, as per the impugned G.O dated24.03.2008.
17. If the State found at any stage, the
selection was tainted with illegality always itis open for it to correct the things. In thecontext, the C & R Rules under Notificationdated 09.02.2007 and 25.06.2007 werefound illegal and are opposed to existing lawon legal opinion by the Law Department and
hence, the State under its statutory powerspassed impugned orders, which are justifiedin the circumstances of the case".
82
58. Keeping the principles enunciated by their
Lordships in the matter of East Coast Railways case
referred to supra in mind and contention raised by
Government in its Statement of objections as extracted
hereinabove, when facts on hand are examined with
reference to the contention raised by the learned
counsel for petitioner about there being non application
of mind while passing the impugned order and there
being no basis for the same being passed, it is noticed
from the original records that a representation dated
22.02.2007 had been submitted by petitioner as also
representation by other scientists of the third
respondent - institute to the Secretary- Commerce and
Industry, Government of Karnataka requesting the
Government to fix the maximum age limit for internal
candidates as 55 years as on last date for receiving the
applications. The said representations came to be
forwarded by the Under Secretary - (Silk) Commerce
and Industry to the third respondent- institute by
covering letter bearing No.36 2006 dated 28.02.2007 as
83
noted in paragraph 49 and 50 of the note sheet of the
file bearing C.No.27858. Based on the said letter
received from the Government of Karnataka, the
Director of the third respondent-institute requested the
Government to reconsider its earlier approval granted
on 09.02.2007, Annexure-B and give approval for fixing
maximum age limit for in service candidates from 55
years to 53 years to the post of Director. There was no
resolution passed by the Governing Council in this
regard. However, the recommendation made by the
Director of the third respondent-institute vide letter
dated 31.05.2007 came to be accepted by the Secretary,
Mines, Textiles, Small Scale Industries, Commerce and
Industries Department as per note found at paragraph
58 of the note sheet of the same file. The said
acceptance came to be approved by the Minister for Silk
as found in the same paragraph of the note sheet at
internal page 20.
59. It would be relevant to observe that if the
resolution dated 18.12.2006 passed at 44th Governing
Council of 3rd respondent Institute had been approved
84
by the State Government and notification had been
issued by the third respondent-institute calling for
applications to the post of Director all Senior Scientist
working in the third respondent-institute including the
petitioner and respondent Nos. 5 and 6 would have
become eligible to apply. However, by virtue of changing
the age from 55 to 53 years the level playing field in the
process of recruitment became automatically uneven.
In other words Senior Scientists working in the third
respondent–institute would systematically got
eliminated if the age is taken as below 53 years by
taking into consideration the last date fixed for
receipt of applications then only four candidates
would become eligible. However, if the last date is
taken as the date on which the vacancy arose all will
fit into eligibility criteria. The notings found in the
note sheet at paragraphs 49 to 62 would clearly go to
show that the State Government having accorded its
approval for amendment of C & R – 1997 of the third
respondent-institute on 09.02.2007 vide Annexure-B
retraced its steps within a short span of four months as
85
noted hereinabove and made further amendment on
26.06.2007 vide Annexure-E based on the
recommendation letter dated 31.07.2007, Annexure-R-6
of the Director of institute without there being any
resolution passed by the Governing Council in this
regard.
60. On account of a direction issued in
W.A.No.461/2007 dated 14.06.2007 to make regular
appointment to the post of Director of the institute, the
third respondent-institute as well as the Government
were required to comply with the order passed by
Division Bench and as such 3rd respondent Institute
proceeded to issue notification dated 15.07.2007-
Annexure-F calling for applications for the post of
Director and the selection committee held its
proceedings on 18.09.2007 and made its
recommendations as per Annexure-G. In the
meanwhile fifth respondent herein who had submitted
earlier representation, submitted one more
representation dated 11.10.2007 to the Governor of
Karnataka and to the Chief Secretary which was in
86
continuation to earlier representation. Same came to be
noted by the Deputy Secretary in the note sheet at
paragraph 189 of the file C.No.26929 and forwarded the
file to the Governor followed by recommendation of the
Secretary to Government, Commerce and Industries
Department to approve the recommendation made by
the selection committee on 18.09.2007-Annexure-G.
Same came to be placed before the adviser to the
Governor of Karnataka since at the relevant point of
time the State of Karnataka was under the President's
Rule. After examining the matter adviser to the
Governor is said to have discussed the issue with
concerned officials and has made a note on 09.11.2007
at paragraph 197 as under:
"Two previous Ministers incharge had takendifferent views on the age limit for internalcandidates. The file may be put up fororders of the Minister concerned in theincoming Government".
61. On account of the President's Rule being
promogulated in the State of Karnataka once again the
file was ordered to be placed before the Principal
Secretary to the Governor. The Principal Secretary to
87
Government of Karnataka vide his notings in paragraph
212-216 of the note sheet of the same file was of the
opinion that second amendment made by the State
dated 26.06.2007 as per Annexure-E was not in line
with the decision of the 44th Governing Council meeting
of the third respondent -institute held on 18.12.2006
and as such he pointed out that course of action is to
place the Governing Council resolution dated
18.12.2006 in a special general meeting convened for
the special purpose and take it forward from there. He
also recommended for seeking opinion from Law
Department. As such it came to be placed before the
Additional Secretary to Government (Opinion) Law,
Justice and Human Rights Department. He has opined
as under:
"The Karnataka State Sericulture Researchand Development Rules and Regulations,1980 as well as Cadre and Recruitment
Rules, 1997 can be amended only byfollowing the procedure contained in Section10 of Karnataka Societies Registration Act,1960 r/w Rule 29 of the KSSDI Rules andRegulations , 1980. The approval of StateGovernment to the modified Cadre and
Recruitment Rules, 1997 vide its letter No.CI26 SLK 06 dated 26.06.2007 fixing the upperage limit of 53 years as on the last date of
88
the receipt of the applications for the post ofDirector and appointment made pursuant toit is not in accordance with the provisions of
law and rules applicable. Such appointmentmay not sustain if challenged in the court oflaw".
Sd/- (R.S.Patil)
Additional Secretary to Government (Opinion) Law, Justice & Human Rights Department
62. This opinion came to be approved by the Law
Secretary, Principal Secretary to Government,
Commerce and Industries Department and file being
sent for taking further steps in the matter, the Deputy
Secretary made further recommendation to accept the
resolution passed by the Governing Council at its
special 44th meeting held on 18.12.2006 and it has been
opined as under:
Paragraph 249 - According to this, the internalcandidates who have applied for the post of Director andappeared for the interview held on 08.10.2007 can be
classified as below:
SL.NO. NAME OF THEINTERNALCANDIDATE
AS AT18.04.1998(ORIGINAL 50YEARS)
1. DR.J.SUKUMAR, SD INELIGIBLE
2. DR.SRINIVAS R KATTI,SD
ELIGIBLE
89
3. DR.SUGUN RAJIV SD INELIGIBLE
4. DR.G.VEERANNA SD INELIGIBLE
5. DR.C.S.PATIL SD INELIGIBLE
6. DR.U.D.BONGALE,FORMER DIRECTOR
INELIGIBLE
PARAGRAPH 250 - If Governing Council resolutiondated 18.12.2006 is accepted and deemed to beoperational w.e.f. 18.12.2006 the following
consequences will emerge
SL.NO. NAME OF THEINTERNALCANDIDATE
ELIGIBILITYCRITERIA OFINTERNALCANDIDATES
1. DR.J.SUKUMAR, SD ELIGIBLE
2. DR.SRINIVAS R KATTI,SD
ELIGIBLE
3. DR.SUGUN RAJIV SD ELIGIBLE
4. DR.G.VEERANNA SD ELIGIBLE BUTNOT CALLEDFOR INTERVIEWAS PER
NOTIFICATIONDATED16.07.2007
5. DR.C.S.PATIL SD INELIGIBLE
6. DR.U.D.BONGALE,FORMER DIRECTOR
INELIGIBLE
63. In this background further opinion was
sought for from the law department and thereafter
opinion came to be issued by the law department on
03.03.2008 which reads as under:
"Since, the Government orders dated09.02.2007 and 26.06.2007 referred to in
90
sub para (1) and (2) of para 245 n/f arestated to be not based on the resolution ofGoverning Council of the institute, which
alone has authority to add or alter or amendthe rules and regulation and bye-law of theinstitute are liable to be withdrawn andcancelled as stated in para 251(a) n/f. Theeligibility for internal candidates fixed "below53 years as on the date on which the post of
Director became vacant" being based on theresolution dated 18.12.2006 of theGoverning Council can be approved by theGovernment. In case if such approval isaccorded by the Government, the internalcandidates below the age of 53 years as on
the date on which the post of Directorbecame vacant would be eligible to be calledfor interview for the post of Director eventhough the amendment is give effect fromthe date of resolution. In such case the dateof post of Director falling vacant would be
the determining date for the purpose ofdeciding eligibility for calling for theinterview of internal candidates".
Sd/- (R.S.Patil)
Additional Secretary to Government (Opinion) Law, Justice & Human Rights Department
64. The said note came to be approved by the Law
Secretary, Principal Secretary - Mines, Textiles,
Commerce and Industries, adviser to Governor of
Karnataka and it is thereafter the impugned orders have
been passed by the State. At this juncture it would be
relevant to note the stand of the State. In the statement
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of objections filed it has been asserted by the State that
at any stage of the selection if it is found that selection
is tainted with illegality it is open for it to correct its
mistakes and contends that in this context it was found
that notification dated 09.02.2007 and 25.06.2007 were
found to be illegal and opposed to the existing law and
as such impugned orders have been passed. It would
be necessary to note at this juncture itself that mere
selection of the candidate does not confer any right in
such a candidate unless it crystalises into an order and
C & R – 1997 would lend credence to the said
proposition namely Regulation 16 (4) which reads as
under:
"The selection list of candidates should benotified in the order of merit for the posts orcategories of posts. Mere inclusion ofname/s of candidates in the select list doesnot confer any right in favour of suchcandidates for such appointment".
(Emphasis supplied by me)
65. In that view of the matter also the contention
of the petitioner that selection process once commenced
should culminate in issuing appointment order cannot
92
be accepted. It is also to be observed that petitioner
himself has submitted a representation on 22.02.2007
Annexure-R-8 whereunder he has sought for
amendment to C & R Rules. Hence petitioner is
estopped from contending that C & R Rules are
inapplicable for the purposes of applying the same to
appoint a candidate for the post of Director of the
Institute.
66. These facts and the various notings at
different levels of the Government would clearly go to
show that the decision taken by the Government to pass
order dated 24.03.2008 at Annexure-M cannot be
construed either as arbitrary, capricious or without
application of mind. The voluminous notings and the
deliberations having taken place at various levels of the
Government cannot be construed or held either as
capricious or arbitrary. The said decision arrived by the
State is after due application of its mind to the facts on
hand with reference to the Memorandum of Association,
bye laws and C & R rules. Hence, the said decision
cannot be held as without assigning any reasons. The
93
reasons has been recorded in the files maintained by
the State and the said reasonings found from the
notings would clearly go to show that State had applied
its mind before proceeding to pass the impugned orders.
Hence said contention deserves to be rejected and
accordingly it is rejected.
67. One another contention raised by the
learned counsel for petitioner on this issue is with
regard to the "cut off date" fixed for being considered to
be eligible for applying to the post of Director.
68. Prior to the amendment in the year 2007 as
per C & R Rules the mode of recruitment to the post of
Director was by direct selection and apart from other
essential qualifications prescribed, the age limit had
been fixed as 50 years. In the 44th Governing Council
meeting of third respondent institute it was
recommended by resolution to fix the age as “below 53
years on the date on which the vacancy of the post
Director accrued in respect of internal candidates only”.
Same was sent to approval. However, the Government
94
while considering the recommendation of the 44th
Governing Council meeting fixed the age limit as “below
55 years as on the date on which the post of Director
became vacant”. In the instant case the post became
vacant on 24.02.2006 after the term of Dr.Bhongale
came to an end. If the cut off date is taken as 53 years
and is deemed to be operational from 18.12.2006
petitioner becomes eligible and fifth respondent would
become ineligible. However, if the resolution of the 44th
Governing Council is accepted namely the age as 53
years as on the date on which the post of Director
became vacant both petitioner, fifth respondent and
Dr.Bhongale would have become eligible. Hence, the
contention of learned counsel for petitioner that
Government erred in fixing the cut off date as the date
on which the post of Director became vacant has to be
set aside, cannot be accepted. The Hon'ble Apex Court
while considering the powers of authorities to fix the cut
off date for determining the maximum or minimum age
prescribed for a post has held, that it is within the
discretion of the rule making authority or the employer.
95
It has also been held such cut off date cannot be fixed
with any mathematical precision in the case of Dr.Amit
Lal Bhat Vs State of Rajasthan and others reported
in (1997) 6 SCC 614 which reads as under:
5. This contention, in our view, is not
sustainable. In the first place the fixing of acut off date for determining the maximum ofminimum of minimum age prescribed for apost of not, per se, arbitrary. Basically, thefixing of a cut off date for determining themaximum or minimum age required for a post,
is in the discretion of the Rule-makingAuthority or the employer as the case may be.One must accept that such a cut off datecannot be fixed with an mathematicalprecision and in such a manner as wouldavoid hardship in all conceivable cases. As
soon as a cut off date is fixed there will besome persons who fall on the right side of thecut off date and some persons who will fall onthe wrong side of the cut off date. That cannotmake the cut off date, per se, arbitrary unlessthe cut off date is so wide off the mark as to
make it wholly unreasonable. This view wasexpressed by this court i n Union of India andanother etc. V. M/s. Parameswaran MatchWorks etc. (AIR 1974 S.C. 2349) and has beenreiterated in subsequent cases. In the cases ofA.P. Public Service Commission, Hyderabad
and another v. . Sharat Chandra and Ors.(1990 2 SCC 669) the relevant service rulestipulated that the candidate should not havecompleted the age of 26 years on the 1st day ofJuly of the year in which the selection is made.Such a cut off date was challenged. This Court
considered the various steps required in theprocess of selection and said, "when such arethe different steps in the process of selection
96
the minimum age of suitability of a candidatefor appointment cannot be allowed to dependupon any fluctuating or uncertain date. If the
final stage of selection is delayed and moreoften it happens for various reasons, thecandidates who are eligible on the date ofapplication may find themselves eliminated atthe final stage for no fault of theirs. The date toattain the minimum or maximum age must,
therefore, be specific and determinate as on aparticular date for candidates to apply and forthe recruiting agency to scrutinise theapplications". This Court, therefore, held thatin order to avoid uncertainly in respect ofminimum or maximum age of a candidate.
Which may arise if such an age is linked to theprocess of selection which may taken anuncertain time, it is desirable that such a cutoff date should be with reference to a fixeddate. Therefore, fixing in independent cut offdate, far from being arbitrary, makes for
certainty in determining the maximum age.
6. In the case of Union of India and Anr. v.Sudhir Kumar Jaiswal (1994 4 SCC 212) thedate for determining the age of eligibility wasfixed at 1st of August of the year in which the
examination was to be held. At the time whenthis cut off date was fixed, here used to be onlyone examination for recruitment. Later on, apreliminary examination was also introduced.Yet the cut off date was not modified. TheTribunal held that after the introduction of the
preliminary examination the cut off date hadbecome arbitrary. Negativing this view of theTribunal and allowing the appeal. This CourtCited with approval the decision of this Courtin Parmeshwar Match Works case (supra) andsaid that fixing of the cut off date can be
considered as arbitrary only if it can be lookedupon as so capricious or whimsical as to invitejudicial interference. Unless the date is grossly
97
unreasonable, the court would be reluctant tostrike down such a cut off date.
7. In the present case, the cut off date hasbeen fixed by the State of Rajasthan under itsRules relating to various services withreference to the 1st of January following theyear in which the applications are invited. Allservice Rules are uniform on this point.
Looking to the various dates on which differentdepartments and different heads ofadministration may issue their advertisementsfor recruitment, a uniform cut off date hasbeen fixed in respect of all suchadvertisements as 1st January of the year
following. This is to make for certainty. Such auniform date prescribed under all serviceRules and Regulations makes it easier for theprospective candidates to understand theireligibility for applying for the post in question.Such a date is not so wide off the mark as to
be construed as grossly unreasonable orarbitrary. The time gap between theadvertisement and the cut off date is less thana year. It takes into account the fact that afterthe advertisement, time has to be allowed forreceipt of applications, for their scrutiny, for
calling candidates for interview, for preparing apanel of selected candidates and for actualappointment. The cut off date, therefore,cannot be considered as unreasonable. It was,however, strenuously urged before us that theonly acceptable cut off date is the last date for
receipt of applications under a givenadvertisement. Undoubtedly, this can be apossible cut off date. But there is no basis forurging that this is the only reasonable cut offdate. Even such a date is liable to question ingiven circumstances. In the first place, making
a cut off date dependent on the last date forreceiving applications, makes it more subjectto vagaries of the department concerned,
98
making it dependant on the date when eachdepartment issues an advertisement, and thedate which each department concerned fixes
as the last date for receiving applications. Aperson who may fail on the wrong side of sucha cut off date may well contend that the cut offdate is unfair, since the advertisement couldhave been issued earlier: Or in the alternativethat the cut off date could have been fixed later
at the point of selection or appointment. Suchan argument is always open, irrespective of thecut off date fixed and the manner in which it isfixed. That is by this court has said in the caseof Parameshwaran Match Works(supra) andlater cases that the cut off date is valid unless
it is so capricious or whimsical as to be whollyunreasonable. To say that the only cut off datecan be the last date for receiving applications,appears to be without any basis. In our viewthe cut off date which is fixed in the presentcase with reference to the beginning of the
Calendar year following the date of application,cannot be considered as capricious orunreasonable. On the contrary, it is less proneto vagaries and is less uncertain".
69. As to what would be the effect when a cut off
date is fixed for fulfilling the prescribed qualification
relating to age by a candidate for appointment and the
effect of any non prescription came to be analysed by
the Hon'ble Apex Court in the case of Shankar
K.Mandal and others Vs State of Bihar and others
reported in 2003 (9) SCC 519 after considering its
99
earlier judgments and laid down the principles as
under:
5. Pursuant to the directions contained in theearlier judgment of the High Court as affirmedby this Court, a fresh exercise wasundertaken. Since the present appellants were
not selected, writ petitions were filed beforethe High Court. In the writ petition which wasfiled by 55 persons and disposed of by theDivision Bench the conclusions wereessentially as follows:(1) Some of the writpetitioners (Writ petitioners Nos. 5, 18, 23, 28,
41 and 53) were over age at the time of theirinitial appointment and their cases were,therefore, wholly covered by the directionsgiven by the High Court, and they were notentitled to relaxation of age;(2) So far as writpetitioners Nos. 6, 26, 30 and 55 are
concerned, the stand was that they had notcrossed the age limit at the time of making theapplications for appointment and, therefore,were within the age limit at the time of initialappointment and were, therefore, entitled torelaxation of age in terms of the judgment
passed by the High Court earlier and affirmedby this Court. This plea was turned down onthe ground that what was relevant forconsideration related to the age at the time ofinitial appointment and not making of theapplication;(3) As regards writ petitioner
No.24, he was under age at the time ofappointment. He was permitted to file arepresentation before the Director of PrimaryEducation and the High Court ordered thathis case would be considered afresh;(4)Inrespect of writ petitioners Nos. 9 and 17, it
was noted that they were refused absorptionon the ground that they had not made anyapplication in response to advertisement
100
issued pursuant to the order passed by thisCourt. Since no material was placed tosubstantiate this stand and no reasons had
been communicated for non-absorption,direction was given to considerrepresentations if made by them within onemonth from the date of judgment. The saidjudgment is under challenge in C.A.No.916/1999. Appellants have taken the
stand that in terms of this Court's judgment,a person who was not over age on the date ofinitial appointment was to be considered.Though it was conceded before the High Courtthat they were over age at the time of initialappointment, much would turn as to what is
the date of initial appointment. The HighCourt had not considered as to what was theapplicable rule so far as the eligibilityregarding age is concerned. Learned counselappearing for the respondent-State howeversubmitted that having made a concession
before the High Court that they were over ageon the date of appointment, it is not open tothe appellants to take a different stand. Thecrucial question is whether appellants wereover age on the date of their initialappointment. It is true that there was
concession before the High Court that theywere over age on the date of initialappointment. But there was no concessionthat they were over age at the time of makingthe application. There was no definite materialbefore the High Court as to what was the
eligibility criteria so far as age is concerned.No definite material was placed before theHigh Court and also before this Court to give adefinite finding on that aspect. What happenswhen a cut off date is fixed for fulfilling theprescribed qualification relating to age by a
candidate for appointment and the effect ofany non-prescription has been considered bythis Court in several cases. The principles
101
culled out from the decisions of this Court(See Ashok Kumar Sharma and Ors.v.Chander Shekhar and Anr. (1997 (4) SCC 18,
Bhupinderpal Singh v. State of Punjab (2000(5) SCC 262 and Jasbir Rani and ors. v. Stateof Punjab and Anr. (2002 (1) SCC 124) are asfollows:
(1) The cut off date by reference to which theeligibility requirement must be satisfied bythe candidate seeking a public employmentis the date appointed by the relevant servicerules;
(2) If there is no cut off date appointed by the
rules then such date shall be as appointed forthe purpose in the advertisement calling forapplications; and
(3) If there is no such date appointed then theeligibility criteria shall be applied by reference
to the last date appointed by which theapplications were to be received by thecompetent authority.
6. It has, therefore, to be decided by theauthorities as to which of the three conditions
indicated above were applicable to the facts ofthe case. In the absence of definite material,we think it appropriate to direct theauthorities to take a decision within a periodof four months from today, as to whether theappellants or one of them was eligible by
applying the tests indicated above. Thesedirections shall apply to the writ petitionerswho are appellants in the present appeal andto nobody else. The other directions given bythe High Court so far as the writ petitionersNos. 9, 17 and 24 are concerned do not
warrant any interference as there has been nochallenge by the State Government".
102
70. In the instant case by the impugned order
the age limit has been fixed as "below 53 years as on the
date on which the post of Director became vacant" by
restoring the resolution passed by Governing Council of
3rd respondent at its 44th Governing Council meeting
held on 18.12.2006. The fixing of a cut off date is in the
domain of the rule making authority. Whenever a cut
off date is fixed there will always be some persons who
would fall within the eligible criteria and some persons
outside the eligibility criteria. In the instant case on
hand earlier the age was fixed at 50 years came to be
amended at the 44th Governing Council meeting of the
Institute and it was fixed as 53 years as on the date on
which the vacancy accrued. This resolution when sent
for approval to the Government by the institute came to
be modified as 55 years at the first instance and later
on re-amended as 53 years but fixing the cut off date as
the last date fixed for receipt of applications. It is by
virtue of fixing the last date of receipt of application that
the candidate should be 53 years instead of the date on
which the post became vacant results in systematic
103
elimination of certain candidates including the fifth
respondent herein and as such representations were
submitted which ultimately came to be accepted. In
this background the Governing Council took into
consideration the recommendations of the anomaly
committee and resolved to fix the age as "below 53
years as on the date on which the post became
vacant" which amendment has been approved by the
first respondent-Government by impugned order dated
24.03.2008 Annexure-M. By virtue of such amendment
it would neither prejudice the petitioner nor the fifth
respondent or six respondent. However sixth respondent
having attained the age of superannuation at present it
would have no effect whatsoever on his application. In
that view of the matter neither prejudice or injustice
would be caused to any of the parties by impugned
order. In that view of the matter, I am of the considered
view that Point No.3 and 4 formulated hereinabove has
to be held in the negative i.e., against the petitioner.
71. The age limit initially prescribed for the
appointment to the post of Director was 50 years.
104
Pursuant to the direction issued by this court on
01.03.2006 in W.P.6623/2001 directing the Anamoly
Committee constituted by the institute to consider the
representations of fifth respondent and others seeking
relaxation of qualification and age limit, the Anamoly
Committee recommended for relaxation of age limit as
"below 50 years for external candidates and below 53
years for internal candidates" vide Minutes of the
recommendation dated 22.09.2006 (Annexure-R-1 in
W.P.8085/2008). The said recommendations made by
the Anamoly Committee was placed before the
Governing Council of the third respondent-institute at
its 44th meeting held on 18.12.2006 (Annexure-R-2). In
the said meeting it was resolved by the Governing
Council of 3rd respondent to recommend to the
Government to amend the C & R – 1997 in so far as
appointment to the post of Director of the third
respondent-institute particularly with regard to age
criteria as "below 53 years on the date on which
vacancy of the post of Director accrued in respect of
internal candidates only". The said resolution of the
105
Governing Council of third respondent -institute on
being forwarded to the State Government, came to be
approved with a modification namely instead of
maximum 53 years it was modified as "below 55 years
as on the date on which the post of Director became
vacant in respect of internal candidates only".
Subsequently few scientists aggrieved by such
amendment are said to have submitted representations
to the Government including the petitioner, herein
through Commissioner of Sericulture requesting to relax
the age to "53 years" and to fix the cut-off date as "last
date of application" as the relevant date. The said
representation on being forwarded by the Commissioner
of third respondent-institute to the State Government
came to be considered and recommendation was
accepted by granting approval to amend the C & R
Rules by fixing the age limit as "below 53 years for
internal candidates on the last date fixed for receipt
of applications" vide approval date.26.06.2007
Annexure-E. It is pursuant to this amendment
approved by the State Government, Notification dated
106
15.07.2007, Annexure-F came to be issued by the third
respondent -institute calling for applications from
eligible candidates. It is at this juncture rival
contentions of the parties namely as to the validity of
the approval of amendment accorded by the State as per
Annexure-E requires to be considered, since petitioner
claims that by virtue of said amendment having been
approved by the State as per Annexure-E by fixing the
age limit as below 53 years for internal candidates on
the last date fixed for receipt of applications came to
changed by withdrawing said approval under impugned
order dated 24.03.2008 Annexure-M since it would
amount to changing the rules of the Game particularly
when recruitment process had commenced by which
time a right had accrued to petitioner and more
particularly when the applications had already been
invited for selection and selection committee had also
considered the applications received and had resolved to
recommend the name of the petitioner.
72. Admittedly the Governing Council of the
third respondent-institute at its 44th meeting held on
107
18.12.2006 had resolved to amend the C & R Rules as,
“below 53 years on the date on which vacancy of the
post of Director accrued in respect of internal
candidates only". However, the State Government did
not accept the said resolution passed by Governing
Council of the third respondent-institute but accorded
approval to amend the said rule with modification
namely by fixing the age limit as "below 55 years as on
the date on which the post of Director became
vacant in respect of internal candidates only". As
noted herein supra, the Commissioner for Sericulture
vide letter dated 31.05.2007, Annexure-R-6 forwarded
the representations of 7 Scientists including that of the
petitioner to the State by recommending and requesting
the state government to reconsider its decision and for
fixing the age as "below 53 years as on the last date
of application for internal candidates". Based on the
said recommendation and without there being any
resolution passed by the Governing Council of the third
respondent -institute the State Government approved
the recommendation and fixed the age limit as "below
108
53 years on the last date fixed for receipt of
applications". This amendment dated. 26.06.2007 as
per Annexure-E approved by the State Government was
not in consonance with the resolution passed by 3rd
respondent Governing Council at its 44th Meeting held
on 18.12.2006. In the said meeting it was resolved to
fix the age at 53 years so also in the second approval
(Annexure-E) accorded by the State Government.
However, the date of vacancy to be reckoned was fixed
by the Governing Council in its 44th meeting as "from
the date on which vacancy of the post of Director
accrued" which was modified as "on the last date
fixed for receipt of applications". The State
Government within a short span of four months
accorded its approval of this amendment sought for by
petitioner by changing the rules of recruitment as per
approval dated 26.06.2007, Annexure-E. This approval
order was retraced by the Government and order dated
24.03.2008 Annexure-M impugned herein was issued
which has been already held hereinabove to be legal.
109
In view of the aforesaid discussions this court is of
the considered view that appointment of director to the
third respondent-institute is to be made by the State
Government after considering the recommendations
made by Selection Committee constituted under C & R –
1997. Petitioner would not get any indefeasible right to
seek for being appointed as director of third respondent-
institute merely because his name had been
recommended in the earlier selection process which
admittedly has not been accepted by the State
Government. Hence the impugned order dated
24.03.2008 is hereby affirmed.
Re: Point No.5:
For the reasons aforesaid, I pass the following:
ORDER
(1) Writ Petition No. 15880/2007 and Writ
Petition No. 8085/2008 are hereby dismissed.
(2) Respondents 1 to 3 in Writ Petition
8085/2008 are at liberty to proceed to appoint