Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.6465 OF 2015 (Arising out of S.L.P.(Civil) No.9266 of 2012)

Madras Institute of Development Studies and Another     …..Appellant(s)

versus

Dr. K. Sivasubramaniyan and others     ..Respondent(s)

with

CIVIL APPEAL No.6466 OF 2015 (Arising out of SLP (Civil) No.10022 of 2012)

   Dr. S. Anandhi and others       ….Appellant(s)

versus

Dr. K. Sivasubramaniyan and others      ..Respondent(s)

 JUDGMENT

M. Y. EQBAL, J.  

Leave granted.

2. These appeals by special leave are directed against the

Judgment  and order  dated  09.01.2012 passed  by  the  High

1

Page 2

Court  of  Judicature  at  Madras  in  W.A.  No.  167  of  2008,

whereby  the  order  passed  by  the  learned  Single  Judge

dismissing the writ  petition filed by respondent No.1 herein

has  been  reversed  and  the  order  dated  14.8.2006  of  the

Appellant No.-Institute approving appointment of Respondent

Nos. 2 to 6 (namely Dr. S. Anandhi, Dr. Brinda Viswanathan,

Dr.  L.  Venkatachalam,  Dr.  Ajit  Menon  and  Dr.  Kripa

Ananthpur)  to  the  post  of  Associate  Professor  has  been

quashed.

3. The facts of the case lie in a narrow compass.

4. The appellant Institute issued an advertisement calling

for  applications  for  the  positions  of  Professor,  Associate

Professor  and  Assistant  Professor.   The  said  advertisement

contained a description of the three qualifications required to

be  possessed  by  the  candidate.   Several  persons  including

respondent  No.1-writ  petitioner  submitted  application  for

appointment  to  the  post  of  Associate  Professor.   The

short-listing of the candidates was done by the Director of the

Institute  in  consultation  with  the  Chairman  after  informal

2

Page 3

consultation with senior Professors for evolving the criteria for

short-listing  of  the  candidates.   The  Selection  Committee

consisting  of  three  noted  Social  Scientists  as  contemplated

under  the  Rules  conducted  interviews  and  recommended  a

panel  of  five  names.   Thereafter,  the  Executive  Council  by

Order dated 14.8.2006 approved the appointment of various

persons  to  the  posts  of  Professor,  Associate  Professor  and

Assistant  Professor.   Since  the  Institute  had  advertised  for

three posts, the first three i.e. respondent nos. 2, 3 and 4 were

initially approached for the post of Associate Professor.

5. The  respondent  No.1-writ  petitioner  challenged  the

aforesaid decision dated 14.8.2006 on the ground  inter alia

that  the  selection  was  not  done  strictly  as  per  the

qualifications  mentioned in the advertisement and that the

respondent  No.1-writ  petitioner  having  fulfilled  all  the

requirements ought to have been selected to one of the three

vacancies of Associate Professor.  It was also alleged by the

respondent No.1-writ petitioner that there has been infraction

of the recruitment rules.  

3

Page 4

6. The  appellant  institute  denied  and  disputed  the

allegation regarding the infraction of the recruitment rules and

further denied and disputed the allegations of irregularities in

the selection process.  

7. The  learned  Single  Judge  of  the  Madras  High  Court

dismissed the writ  petition by a reasoned judgment  on two

grounds.  Firstly, it was held that the writ petition was not

maintainable inasmuch as the Institute is not a “State” within

the meaning of Article 12 of the Constitution of India.  The

learned  Single  Judge  secondly  held  that  there  is  no

discrepancy with regard to the qualification mentioned in the

advertisement and the service rules.  Finally, learned Single

Judge held that respondent No.1-writ petitioner having taken

part  in  the  selection  process  without  raising  any  objection

cannot  challenge  the  selection  process  after  being  declared

unsuccessful by not including his name in the Selection List.  

8. Aggrieved by the said judgment, the respondent preferred

the writ appeal before the Division Bench of the Madras High

4

Page 5

Court.  The Division Bench allowed the appeal and reversed

the order passed by the learned Single Judge.  On the issue of

maintainability  of  writ  petition,  the  Division  Bench  in  the

impugned order held that the duties being performed by the

appellant-Institute are in the nature of  public function and,

therefore,  it  would  come  within  the  ambit  of  ‘State’  under

Article 12 of the Constitution of India.  The Division Bench on

the merit of the case came to the conclusion that there is a

variation in the advertisement from the prescribed rules and

as  such  the  entire  selection  process  is  vitiated  in  law.

According to the Division Bench, the advertisement issued by

the Institute and the constitution of Selection Committee are

totally  contrary to  the Rules,  consequently,  the  order  dated

14.8.2006  approving  the  appointment  of  the  respondent  is

liable to be quashed.  

9. Hence, the present appeals by special leave.

10. We  have  heard  learned  counsel  appearing  for  the

appellants  and  the  contesting  respondents  including  the

selected candidates.

5

Page 6

11. Mr.  N.L.  Rajah,  learned  counsel  appearing  for  the

appellant-Institute,  assailed  the  judgment  passed  by  the

Division  Bench  on  various  grounds.  On  the  question  of

maintainability of the writ petition, it was submitted that the

appellant-Institute  was  not  created  by  any  statute.  It  was

founded as a trust and no part of the corpus of the Institution

was held by the Government.  The participation of the State in

the affairs of the Institution   is not under any special statute.

The Division Bench, therefore, has not correctly appreciated

the facts and the law while coming to the conclusion that the

appellant Institute is a State.

12. Mr.  Rajah,  learned  counsel  further  contended  that

although the grievance of the writ petitioner is that he has not

been selected but no relief has been prayed to consider him to

the said post.  The relief claimed in the writ petition is only to

quash the decision by which aforesaid respondents have been

selected.

6

Page 7

13. Lastly,  learned  counsel  submitted  that  the  respondent

writ  petitioner  participated  in  the  selection  process  without

challenging the alleged variance in the advertisement and the

rules  and  without  challenging  the  constitution  of  the

Committee.   He  cannot  thereafter  challenge  the  same  after

being declared unsuccessful for the said post.  

14. On  the  other  hand,  Ms.  V.  Mohana,  learned  senior

counsel  appearing  for  the  respondent  writ  petitioner,

supported the finding recorded by the Division Bench of the

High  Court.   Learned  counsel  contended  that  the

qualifications  prescribed  in  the  advertisement  are  totally  in

adherence with the Rules.  According to the learned counsel,

the entire proceeding for appointment is vitiated by reason of

variance  in  the  advertisement  and  the  rules  and  also

irregularity  in  the  constitution  of  the  Committee  who

conducted interview for selection of the candidates.

15. Indisputably,  the  Madras  Institute  of  Development

Studies (MIDS) is governed by its Faculty Recruitment Rules,

2001.  The Rules apply  to the selection and appointment  of

7

Page 8

persons  to  the  post  of  Assistant  Professor  (Research

Associates), Associate Professor (Fellow) and Professor we are

here  concerned  with  the  qualifications  required  for

appointment  of  a  person to the post  of  Associate  Professor.

The Rules read as under:-

“Associate Professor (Rule) Good  academic  record  with  a  doctoral degree or equivalent published work with five years of experience of teaching and/or research.”

16. The  qualification  mentioned  for  the  post  of  Associate

Professor in the advertisement reads as under:- “Associate Professor (ADVT) Good  academic  record  with  a  doctoral degree in Social Sciences, with at least 5 (five)  published  papers  in  reputed national/international  journals/  edited volume-  or  equivalent  thereof-  and experience  of  research/teaching  at University/national  level  research institutions.”  

17. From a reading of the necessary qualifications mentioned

in  the  Rules  and  the  advertisement,  it  is  manifest  that  a

candidate must have a good academic record with a doctoral

degree  with  5  years  experience  in  research/teaching  at

University or National level research Institute.

8

Page 9

18. The  contention  of  the  respondent  no.1  that  the

short-listing  of  the  candidates  was  done  by  few  professors

bypassing the Director and the Chairman does not appear to

be  correct.  From  perusal  of  the  documents  available   on

record  it appears that short-listing of the candidates was done

by the Director in consultation with the Chairman and also

senior  Professors.   Further  it  appears  that  the  Committee

constituted for  the purpose of  selection consists  of  eminent

Scientists,  Professor  of  Economic Studies and Planning and

other  members.   The  integrity  of  these  members  of  the

Committee  has  not  been  doubted  by  the  respondent-  writ

petitioner.  It is well settled that the decision of the Academic

Authorities about the suitability of a candidate to be appointed

as Associate Professor in a research institute cannot normally

be  examined by  the  High Court  under  its  writ  jurisdiction.

Having  regard  to  the  fact  that  the  candidates  so  selected

possessed  all  requisite  qualifications  and  experience  and,

therefore,  their  appointment  cannot  be  questioned  on  the

9

Page 10

ground of lack of qualification and experience.  The High Court

ought not to have interfered with the decision of the Institute

in appointing respondent nos. 2 to 4 on the post of Associate

Professor.  

19. Be that as it may, the respondent, without raising any

objection  to  the  alleged  variations  in  the  contents  of  the

advertisement and the Rules, submitted his application and

participated in the selection process by appearing before the

Committee of experts.  It was only after he was not selected for

appointment, turned around and challenged the very selection

process.  Curiously enough, in the writ petition the only relief

sought  for  is  to  quash  the  order  of  appointment  without

seeking any relief as regards his candidature and entitlement

to the said post.

20. The  question as  to  whether  a  person  who consciously

takes part in the process of  selection can turn around and

question the method of selection is no longer res integra.

21. In Dr. G. Sarana  vs.  University of Lucknow & Ors.,

(1976) 3 SCC 585, a similar question came for consideration

10

Page 11

before a three Judges Bench of this Court where the fact was

that   the  petitioner  had applied  to  the  post  of  Professor  of

Athropology   in  the  University  of  Lucknow.   After  having

appeared before the Selection Committee but on his failure to

get  appointed,  the  petitioner  rushed  to  the  High  Court

pleading bias against him of the three experts in the Selection

Committee consisting of five members.  He also alleged doubt

in  the  constitution  of  the  Committee.   Rejecting  the

contention, the Court held:-

“15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise  even  his  little  finger  against  the constitution  of  the  Selection  Committee.  He seems to  have  voluntarily  appeared before  the committee  and  taken  a  chance  of  having  a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in  Manak  Lal’s  case where  in  more  or  less similar  circumstances,  it  was  held  that  the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:

11

Page 12

“It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found  that  he  was  confronted  with  an unfavourable  report,  he  adopted  the  device  of raising the present technical point.”

22. In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3

SCC 486, similar view has been reiterated by the Bench which

held that:-

“9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being  respondents  concerned  herein,  were  all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between  the  parties.  The  petitioners  also appeared at the oral interview conducted by the Members  concerned  of  the  Commission  who interviewed  the  petitioners  as  well  as  the contesting  respondents  concerned.  Thus  the petitioners  took  a  chance  to  get  themselves selected at the said oral interview. Only because they  did  not  find  themselves  to  have  emerged successful  as  a  result  of  their  combined performance  both  at  written  test  and  oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because  the  result  of  the  interview  is  not palatable  to  him,  he  cannot  turn  round  and subsequently  contend  that  the  process  of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash  Shukla v.  Akhilesh  Kumar  Shukla1 it has been clearly laid down by a Bench of three

12

Page 13

learned  Judges  of  this  Court  that  when  the petitioner appeared at the examination without protest  and when he found that  he would not succeed  in  examination  he  filed  a  petition challenging  the  said  examination,  the  High Court should not have granted any relief to such a petitioner.

23. In Manish Kumar Shahi vs. State of Bihar, (2010) 12

SCC 576, this Court reiterated the principle laid down in the

earlier judgments and observed:- “We also agree with the High Court  that  after having  taken  part  in  the  process  of  selection knowing fully well  that  more than 19% marks have  been  earmarked  for  viva  voce  test,  the petitioner is not entitled to challenge the criteria or process of selection.  Surely, if the petitioner’s name had appeared in the merit list, he would not  have  even  dreamed  of  challenging  the selection.  The petitioner invoked jurisdiction of the  High  Court  under  Article  226  of  the Constitution of India only after he found that his name does not figure in the merit list prepared by  the  Commission.   This  conduct  of  the petitioner  clearly  disentitles  him  from questioning the selection and the High Court did not  commit  any error  by refusing  to  entertain the writ petition.”

24. In the case of Ramesh Chandra Shah and others  vs.

Anil Joshi and others, (2013) 11 SCC 309, recently a Bench

of this Court following the earlier decisions held as under:-

“In view of the propositions laid down in the above noted judgments, it must be held that

13

Page 14

by  having  taken  part  in  the  process  of selection  with  full  knowledge  that  the recruitment  was  being  made  under  the General  Rules,  the respondents  had waived their  right  to question the advertisement  or the  methodology  adopted  by  the  Board  for making  selection  and  the  learned  Single Judge  and  the  Division  Bench  of  the  High Court committed grave error by entertaining the grievance made by the respondents.”

25. So far as the finding recorded  by the Division Bench on

the  question  of  maintainability  of  the  writ  petition  on  the

ground  that  the  appellant  Institute  is  a  ‘State’   within  the

meaning of Article 12 of the Constitution, we are not bound to

go into that question, which is kept open.

26. Taking into consideration the entire facts of the case and

the law laid down by this Court in a catena of decisions, we

are  of  the  definite  opinion  that  the  Division  Bench  has

committed  grave  error  in  law  by  passing  the  impugned

judgment  reversing  the  order  passed  by  the  learned  Single

Judge.

14

Page 15

27. We,  therefore,  allow  these  appeals,  set  aside  the

impugned judgment and order passed by the Division Bench

in  Writ  Appeal  No.167  of  2008  and  hold  that  the  writ

petitioner-respondent has no merit in the case inasmuch as

there is no illegality in the decision dated 14.08.2006 taken by

the  appellant-Institute  for  appointment  of  aforesaid

respondent nos. 2 to 6 to the post of Associate Professor.   

……………………J. (M.Y. Eqbal)

……………………J. (Arun Mishra)

New Delhi August 20, 2015

15

Page 16

16