MADRAS INST.OF DEV. STUDIES & ANR. Vs. K. SIVASUBRAMANIYAN & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 6465 of 2015, Judgment Date: Aug 20, 2015
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 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 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.
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 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.
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.
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 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.
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 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 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:
“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 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 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.
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