MADRAS INST.OF DEV. STUDIES Vs K. SIVASUBRAMANIYAN .
Bench: M.Y. EQBAL,ARUN MISHRA
Case number: C.A. No.-006465-006465 / 2015
Diary number: 8053 / 2012
Advocates: ANIL KUMAR TANDALE Vs
VIJAY KUMAR
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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
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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
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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.
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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
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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.
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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.
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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
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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.
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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
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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
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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:
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“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
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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
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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.
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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
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