Karnataka High Court
Dr Leena S vs State Of Karnataka on 20 September, 2017
Author: G.Narendar
Bench: G.Narendar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
WRIT PETITION No. 12907/2017 (S-RES)
C/w W.P13427/2017 (S-RES)
WP No.12907/2017 (S-RES)
BETWEEN
DR. LEENA S
W/O G KIRAN RAO SAVANTH,
AGED ABOUT 36 YEARS,
R/AT NO.1153, 2ND MAIN,
7TH BLOCK, HOSAKEREHALLI,
BANASHANKARI III STAGE,
BANGALORE-560085. ... PETITIONER
(BY SRI. RAKSHIT K N, ADV.)
AND
1. STATE OF KARNATAKA
REP. ITS PRINCIPAL SECRETARY,
DEPARTMENT OF MEDICAL EDUCATION,
VIDHANA SOUDHA,
BANGALORE-560001.
2. THE DIRECTOR
KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY,
DR. M.H.MARIGOWDA ROAD,
BANGALORE-560029.
3. DR MAHANTESH A.S
S/O A B ANGADI,
AGED ABOUT 43 YEARS,
R/AT NO.3035, 14TH CROSS,
6TH MAIN, BANASHANKARI II STAGE,
BANGALORE-560070. ... RESPONDENTS
2
(BY SMT. K.C.KAVITA, HCGP FOR R-1,
SRI. M.V.SESHACHALA FOR
ARAVIND V CHAVAN FOR R2,
SRI. HARISHA D N FOR C/R-3,
SRI. V A MOHANRANGAN FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE FINAL SELECTION LIST ISSUED BY R-2 DATED
17.3.2017 AT ANNEXURE-G ETC.
W.P.13427/2017 (S-RES)
BETWEEN
DR. RASHMI
AGED ABOUT 33 YEARS,
D/O. MR. C.RUDRAIAH,
RESIDING AT NO.39, 1ST MAIN,
1ST CROSS, BASAVA LAYOUT,
B.S. PALYA, KENGERI CHECK POST,
BENGALURU-560 060. ... PETITIONER
(BY SRI. NISHANTH A V ALONG WITH
GIRISH KUMAR & GURUDUTT, ADVOCATES)
AND
1. THE PRINCIPAL SECRETARY
DEPARTMENT OF HEALTH AND
FAMILY WELFARE (MEDICAL EDUCATION),
ROOM NO.301, 3RD FLOOR,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. KIDWAI MEMORIAL INSTITUTE
OF ONCOLOGY
GOVERNMENT OF KARNATAKA
AUTONOMOUS INSTITUTION,
DR. M.H. MARIGOWDA ROAD,
3
BENGALURU-560 029,
REPRESENTED BY ITS DIRECTOR.
3. A. S. MAHANTESH
S/O. A.B.ANGADI,
AGED ABOUT 42 YEARS,
RESIDING AT NO.3035,
14TH CROSS, 6TH MAIN,
BANASHANKARI 2ND STAGE,
BENGALURU-560 070.
4. DR. MAHANTESH C.E.
S/O. CHANNAVEERAPPA. E,
C/O. SHANTHAMMA, MAJOR,
NO.239, 5TH CROSS,
K.G. NAGAR, BYADRAHALLI,
BENGALURU-560 091. ... RESPONDENTS
(BY A.G.SHIVANNA, AGA FOR R1,
SRI. M.V.SESHACHALA - SR.COUNSEL FOR
SRI. ARAVIND V CHAVAN - ADV. FOR R2,
SRI. HARISHA D N FOR C/R-3,
SRI. V A MOHAN RANGAM FOR R3,
SRI. R D PANCHAM FOR R4.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE NOTIFICATION DTD:17.3.2017 VIDE ANNEXURE-P
IN SO FAR AS THE R-3 & 4 ARE CONCERNED ETC.
THESE WRIT PETITIONS COMING ON FOR 'HEARING-
INTERLOCUTARY APPLICATION' THIS DAY, THE COURT MADE
THE FOLLOWING:
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ORDER
Heard the learned counsels for the petitioners in both the writ petitions, the learned senior counsel on behalf of the second respondent-Institute in both the petitions, the learned counsel for the contesting respondent No.3 in W.P.No.12907/2013 and the learned counsel for the contesting respondents 3 and 4 in the connected writ petition -
W.P.No.13427/2011. This 3rd respondent is common in both the writ petition.
2. Both the writ petitions are taken up for disposal by the consent of the parties and also in the light of the fact that the writ petitions involve a challenge to the appointments made to the post of Asst. Surgeon - [Dental] in the services of the second respondent-Institute which specializes in treatment of patients suffering from a particular type of a disease and has been created as an autonomous body and governed by its bye-laws, Rules and having framed its Cadre Recruitment Rules and Regulations. 5
3. That the second respondent-Institute is created as an autonomous body, the business and the governance of the second respondent-Institute is vested in the Governing Council, constituted by the Memorandum of Association.
4. Both the writ petitions are preferred calling in question the appointments of the third respondent, who is common in both the writ petitions, and the appointment of the fourth respondent in W.P.No.13427/2017, both of whom have been appointed to the post of Asst. Surgeon - Dental.
5. The facts are as under :-
The petitioners are applicants for the post of Asst. Surgeon-Dental and that they had submitted their applications in response to the notification issued by the second respondent bearing No.KMIO/EST-1/51/2016-17 dated 6.7.2016 under the said notification.
5.1 Applications were invited for 8 (eight) posts of Asst. Surgeons and out of the 8 posts, two posts 6 were reserved to the candidates who had completed and acquired a BDS Degree. The eligibility criteria and the mode of selection was also notified in the notification. That pursuant to the applications, the selection committee, as constituted under Clause (c) of bye-law 12 of the general bye-laws, invited and interviewed the applicants including the petitioners on 18.10.2016 and in the interview, the selection committee has adopted the following parameters to adjudge the abilities of the candidates on a comparative basis. The parameters/criteria adopted by the Selection Committee in respect of the Asst.
Surgeon BDS are as follows :-
i) Experience in Oncology Institute (3 marks)
ii) Cancer Detection Camps (four marks)
iii) Extra curricular activity/sports (1 mark)
iv) Paper publication (1 mark)
v) Paper presentation (1 mark) & lastly
vi) the average of all internal maximum marks.7
In respect of Asst. Surgeon MBBS, the following criteria was adopted by the selection committee viz. :-
1) Post graduate qualification (5 marks)
2) MBBS gold medalist( 2 marks)
3) Extra Curricular activity sports ( 2 marks)
4) Paper publication (2 marks)
5) Paper presentation (2 marks)
6) Experience (2 marks) &
7) Average of all the internals (maximum 5 marks) 5.2 The selection committee on the basis of the adopted criteria has awarded marks to the various candidates and has concluded that respondents 3 and 4 had secured the maximum marks and accordingly, recommended their names for selection.
5.3. Pursuant to the said recommendation, the second respondent-Institute issued a notification dated 28.11.2016 notifying the candidates, who have been provisionally selected under the notification dated 6.7.2016.
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5.4 Aggrieved, the petitioners submitted their objections in writing.
In the objections set out by the first petitioner it was pointed out that the third respondent is aged 43 years and has been selected contrary to the Cadre and Recruitment Rules and that the selection is unethical and vitiated by malafides. It is also pointed out that no posts have been reserved for various categories and have simply stated that the posts have been carried forward.
5.5. It is also pointed out that the provisional select list is contrary to the Government Order DPAR 8 SEHEMA dated 20/6/1995, as no reservations have been made under each cadre and that the reservations to the post ought to have been in respect of all 8 posts notified and ought not to have considered the reservations in respect of Asst. Surgeon BDS and Asst. Surgeon MBBS separately. 9
5.6. The second petitioner, in fact, has raised objections even prior to the conduct of the interview. In fact, the objection preferred is targeted against the provision inthe advertisement, which enables the relaxation of age limit by the Selection Committee.
5.7. In fact, the second petitioner, in her objections, has placed reliance on the rulings of the Apex court and this Court viz. SLP (C) No.7999/94 disposed of on 9.5.1994, W.P.No.35839/2000 disposed of on 5.4.2002, W.P.Nos.289 to 322 of 2003 disposed of on 22.1.2003 and has contended that the power to relax the age limit is vested with the State and no other body is empowered to do the same. It is further pointed out in the said objection that, as per the Government Notification bearing No.DPAR 07 SRR 94 dated 21.7.1997, the candidates must have attained the age of 21 years and must not have attained the age of 35 years as on the last date of application and that the upper age limit will be relaxed by 5 years in respect of SC/ST and 3 years in 10 respect of other backward categories and further relaxation is permissible in respect of Ex.servicemen and members of the armed forces.
5.8. It is also stated that further relaxation of 10 years is applicable only in respect of persons who are physically handicapped and widows and that the relaxation is permissible in respect of the above stated class of persons only and that the second respondent-Institute, though being a autonomous institution, is sponsored and funded by the State of Karnataka and hence has followed the service Rules as framed by the State. In fact, the second petitioner has stated in categorical terms that she has strong objection to the clause permitting relaxation of the upper age limit.
5.9. Admittedly the said objection by the second petitioner has not been considered at all. Pursuant to the publication of the provisional select list, the second petitioner was not selected. In the subsequent representation, addressed to the Governing Council 11 of the second respondent Institute, one of the primary objection raised by the second petitioner is that none of the selection committee members had possessed dental science background and questions posed to her related to politics, sports and news and has expressed doubts as to how the selection committee has evaluated persons in the provisional list.
5.10. The second objection is regarding malafides. It is stated that though she had applied seeking for issuance of a copy of the Institute bye- laws and though the application for the same was submitted way back on 24-10-2016, the same has not been furnished. She further alleges that on the other hand, her personal information has been furnished to respondent No.3 in order to enable him to lodge a caveat petition against the petitioner and similarly situated applicants and it is alleged that the Director has influenced the selection of the third and fourth respondents.
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5.11. The third objection is that the cadre and recruitment Rules have been amended and tweaked at the behest of the vested interest with the malafide intention of facilitating the selection of the candidates of their choice.
5.12. The next objection is that the amendment is on account of the Director of the Institute misleading the Governing Council with the intent of ensuring the recruitment of the respondent.
It is alleged that the third respondent has not attended a single cancer detection camp and hence it is contended that the Director has a vested interest in ensuring the selection of Dr.A.S.Mahantesh.
5.13. She further places reliance on another notification dated 21.7.1997 No.DPAR/2007 SRR 94 and states the classes of people who are entitled to the relaxation of age limit and maximum number of years for which age limit can be relaxed and hence she contends that the notification entitling the 13 selection committee to relax the age limit is contrary to the aforesaid Govt. notification.
5.14. The 6th objection is with regard to the members who constitute the selection committee. It is stated that as per the bye-law 12, the selection committee in respect of the Asst. Surgeons ought to consist of the following members :-
1) The Director would be the Chairman;
2) A nominee from the Director of Medical Education would be the member;
3) A nominee of the Vice Chancellor of Bengaluru University would be the member;
4) Deputy Secretary to Government of Karnataka, Health and Family Welfare would be the member;
5) One expert in the concerned subject nominated by the Chairman of the Governing Council would be the member;
6) Head of Department of the concerned subject of the Institute would be the member &
7) The administrative officer would be member Secretary to the said Selection committee.14
In the interview held on 18.10.2016 it is alleged that only the following were present i.e.
1) The Director
2) Incharge medical superintendent
3) Nominee from the Rajiv Gandhi University of Health Sciences
4) Nominee from the social Welfare Department &
5) Chief Administrative Officer.
It is further stated that though the Institute has a separate Oral Surgery department, headed by an expert, possessing knowledge of dentistry and though such a person was required to be a part of the selection committee, he did not partake in the process and it is stated that this is a reflection of the vested interest the Director possessed and was done with the intention of manipulating the selection process in order to ensure the selection of the candidate of his choice.
5.15. The 7th objection is that the 3rd respondent has passed BDS examinations after multiple 15 attempts and has secured only 55% of marks, whereas the petitioner had completed the BDS in a single attempt securing 64%.
5.16. The 8th objection is that the publication of the provisional list ought to have been preceded by publication of the marks secured by the applicants in the interview and that the marks ought to have been made known on the same date itself.
5.17. The 9th objection is with regard to the failure to reserve the seats in the various reservation categories and this is yet again pointed out as an instance of the malafide attempt by the second respondent to screen information and thereby enable the selection of a candidate of their choice and hence requested cancellation of the provisional list. 5.18. Similar objection/representation is also made to the Secretary, Medical Education Department, Government of Karnataka.
16
6. The second respondent has placed on record Annexure R3, the consolidated statement consisting of the remarks by the Director himself and as per the note sheet he has recommended for rejection of the objections in the light of the remarks prepared by him. The said consolidated statement is prepared and signed by the Director of the second respondent
- Institute, who incidentally presided as the Chairman of the selection committee.
7. It is also not made known as to whether any comments were called from the selected candidates or whether the objection were put to the selected candidates, as some of the answers to some of the allegations were within domain of and the personal knowledge of respondent No.3 alone and it is also not made known whether inputs were obtained from the selection committee as, there are certain allegations against the selection committee itself i.e. no pertinent questions were asked and the questions posed 17 related to general topics such as politics, sports and news.
8. In the remarks prepared by the Director, who is the Chairman of the Selection Committee, it is stated that the third respondent has been selected as he has put in more than 16 years of service in the second respondent Institute and that he has participated in several cancer detection camps and he has more than 10 years experience in the Oncology Institute and that as per the Cadre and Recruitment Rules (C & R) Rules, preferences ought to be given to those who had gained experience while working in a institute of Oncology and those who have worked in health camps and that the third respondent was selected taking into consideration his experience of more than 10 years with the Institute. It is further stated that as per Rule 6(3)(b) of the Karnataka Civil Service (General Recruitment) Rules 1977, the maximum age limit for appointment shall be deemed to be enhanced in the case of a candidate 18 who is or was holding the post under the Government or a Local Authority or a Corporation established by a State Act or Central Act and in view of the above provision, the age limit of the third respondent could be relaxed upto 10 years.
9. That the vacancies have been clubbed together and classified according to the policy of reservation as prescribed for direct recruitment in GO No.DPAR:8:SBC:1995-20.6.1995 read with GO No.DPAR:18:SBC:2005 Dt.6.6.2005. Out of the 08 vacancies notified, 03 were earmarked for GM, 01 for 371(j). 01 for II(a), 01 for III (b), 01 for SC and 01 for ST and that out of the 8 vacancies notified, only 6 (six) candidates (MBBS) have been selected and 2 (two) BDS candidates, who have been more meritorious, have been considered and selected under GM Category and the objector who hails from the IIIB category has not been considered. 19
10. A perusal of the consolidated statement would reveal that the objections raised by the second petitioner on 7.10.2016, even prior to the conduct of the interview, have not been considered. No material is placed nor an argument is advanced to demonstrate otherwise.
11. In respect of the objections raised by the second petitioner regarding publication of the provisional select list, it is stated in the remarks coloumn that the selection committee was headed by the Director who is a Doctor by profession. That he possesses a post graduate degree in Anaesthesia and the Medical Superintendent-Incharge, who is a member is a professional man, with a rich experience in medical education. They have assessed the eligibility and the suitability of the candidates during the course of the interview. It is further stated that, assessing the general knowledge of the candidate is also an integral part of the interview and the allegations are unfounded. The third respondent has 20 completed 42 years, and 7 months and is working on an adhoc basis for the past 16 years. He has participated in several Cancer Detection camps. He has got 10 years experience in an Oncology Institute and according to the C & R Rules prescribed for the post, preference must be given to persons who have participated in health camps organized by the department of Oncology. The selection committee by recording reasons in appropriate cases may relax the upper age limit. The Selection Committee has decided to relax the upper age limit of the third respondent as per Rule 6(3)(b) of the Karnataka Civil Service (General Recruitment) Rules 1977 which states that the maximum age limit may be relaxed in respect of a candidate who is or was holding a post under the Government or a local authority etc.
12. That the committee was headed by the Director who is a Doctor by profession with post graduate in Anesthesia and the medical superintendent who is a professional man with rich 21 experience in medical education. That there is no provision in the Recruitment Rules of the Institute to publish the marks secured by the candidates in the interview and that the reservations was in accordance with the reservation as prescribed by the State Govt. and hence recommended for approval of the selection list.
13. This Court had secured the file relating to the appointment i.e. notification in the appointments.
From a perusal of page 13 of the note sheet, it can be observed that the objections have been considered, listed and remarks have been prepared against each item of objections and for the reasons stated, the remarks are requested to be accepted and it is requested that the provisional selection list may be finalized by rejecting the objection. It is stated as follows:
"the objections are listed and remarks are made against each item of the objections for the reasons stated in the statement, the provisional selection list may be finalized by 22 rejecting the objection as signed by the Director"
14. From the reading of the above, it is obvious that the objections were considered by the Director and he has prepared his remarks and put up the remarks for consideration and rejection of the objections. The said note sheet bears the signature of the Principal Secretary to the Govt. Health and Family Welfare Department (Medical Education) dated 29.12.2016 and signed by the Deputy Secretary to Govt. Family Welfare Department, medical education on 28.1.2017. Thereafter the notification dated 17.3.2017 publishing the final selection list has been issued.
Aggrieved the petitioners are before this Court.
15. This Court vide order dated 4.4.2017 was pleased to stay the appointment of the third respondent pending disposal of the writ petition. 23 In the second writ petition, interim order making appointments of the fourth respondent subject to the final outcome of the writ petition was passed.
16. Contentions : (in W.P.No.12907/2017) The learned counsel for the petitioner contends that as per the notification the age limit stipulated in respect of various classes of candidates is, 40 years in respect of SC and ST candidates, 38 years in respect of Category IIB, IIIA and IIIB and 35 years for the candidates belonging to the general merit. That the above age limit specified is also in accordance with the provisions of the Karnataka Civil Services (General Recruitment) Rules 1977 and the Karnataka Civil Services (Probation) Rules, 1977.
17. That even as per the general bye-laws of the second respondent, the second respondent-Institute have adopted the Karnataka Civil Services (General Recruitment) Rules 1977 and no provision is made for relaxation of age in case of direct recruitment and 24 that the selection of the third respondent, who is aged about 43 years, is contrary to the general bye- laws. He would draw the attention of the Court to Annexure-D being the application submitted by the third respondent wherein the date of birth is stated to be 27.12.1973 and as on the last date of filing the application he was aged about 43 years.
18. It is further stated that vide notification dated 28.11.2016, publishing the provisional list of selected candidates, the unsuccessful candidates were also called upon to submit their objections.
19. That the petitioner submitted her objections within the stipulated time, copy of which is placed on record as Annexure-F to the petition. That without considering the objections, the impugned notification dated 17.3.2017, publishing the final recruitment list was issued. That the respondents 1 and 2 have failed to adhere to their bye-law and the Rules of Recruitment and is contrary to the Cadre and Recruitment Rules.
25
20. The learned counsel for the first petitioner contended that the power to relax the upper age limit was not vested in the selection committee. The learned counsel for the petitioner would contend that as per the paper publication the age limit prescribed in respect of the various classes of applicants was 35 years in respect of the general category, 38 years in respect of applicants belonging to II(B), III(A) & III(B) categories and 40 years in respect of the applicants from the SC and ST category and that relaxation of upper age limit was to be considered by the selection committee in accordance with the institute bye laws. He would draw attention to the Cadre and Recruitment Rules and would contend that the age limit is 40 years. As per the notification the upper age limit specified was 35 years and hence the selection committee could not have relaxed the upper age limit beyond 40 years.
21. He would also contend that no reservation of posts in respect of 3B category is provided in the 26 notification. He would contend that the selection of the third respondent who was aged 43 years, to be more precise 42 years and 7 months as on the last date of submission of the applications, was illegal.
22. He would further contend that the insertion of the power to relax age limit has not been authorized by the Governing Council and he would draw the attention to Ex.R1 produced along with the statement of the objections preferred by the second respondent. He would further take the Court through Annexure-R6 produced by the second respondent along with the additional statement of objections dated 22.8.2017, where the governing council in its 45th meeting held on 12.5.2014 at 3.30 p.m has resolved as stated below :-
The modification as approved and passed by the governing council is listed at item No.16 which reads as follows:-
"Item No.16 : Modification of Cadre & Recruitment Rules for the post of Asst. Surgeon: 27 ¸ÀºÁAiÀÄPÀ ±À¸a Àæ QvÀìPg À À ºÀÄzÉÝUÉ ªÀÈAzÀ ªÀÄvÀÄÛ £ÉêÀÄPÁw ¤AiÀĪÀÄUÀ¼À §zÀ¯ÁªÀuÉ §UÉÎ The proposal was approved. Out of 17 posts of Asst. Surgeon-to consider 16 posts as Medical and one post as Dental and the age limit can be relaxed to 40 years.
¥À¸ æ ÁÛª£ À A É iÀÄ£ÀÄß C£ÀĪÉÆâ¸À¯Á¬ÄvÀÄ. ®¨såÀ «gÀĪÀ 17 ¸ÀºÁAiÀÄPÀ ±À¸Àa æ QvÀìPg À À ºÀÄzÉÝUÀ¼° À è 16 ºÀÄzÉÝU½ À UÉ ªÉÊzÀåQÃAiÀÄ ºÁUÀÆ MAzÀÄ ºÀÄzÉÝUÉ zÀAvÀ ªÉÊzÀåQÃAiÀÄ ¥ÀzÀ«AiÀÄ£ÀÄß vÉUz É ÄÀ PÉƼÀî®Ä ºÁUÀÆ ªÀAiÉÆëÄwAiÀÄ£ÀÄß 40 ªÀµð À UÀ½UÉ ¤UÀ¢¥ ü Àr¸À®Ä ¸ÀÆa¸À¯Á¬ÄvÀÄ."
23. The learned counsel would draw the attention of the court to the proposal that was placed before the Governing Council which is listed as item No.16. Item No. 16 of the agenda reads as follows:-
"Item 16: Modification of Cadre and Recruitment Rules for the post of Asst Surgeon ¸ÀºÁAiÀÄPÀ ±À¸ÀÛçaQvÀìPg À À ºÀÄzÉÝUÉ ªÀÈAzÀ ªÀÄvÀÄÛ £ÉêÀÄPÁw ¤AiÀĪÀÄUÀ¼À §zÀ¯ÁªÀuÉ §UÉÎ."
The above subject matter is placed before in Governing Council meeting held on 26.8.2013. The Governing Council deferred the consideration of the 28 subject and directed to place it in the next Governing Council meeting, for taking appropriate decision.
"This Institute is a Super Specialty Hospital treating Cancer patients and offering high degree of patient care. The institute is regularly conducting cancer detection camps all over Karnataka throughout the year. The number of Cancer Detection Camps has increased after entry into Memorandum of Understanding (MOU) with Government of Karnataka for conduction the programme under NCPCDS programme. As there is an acute shortage of manpower to work in the Department of Cancer Detection Clinic and at present the officer's holding the post of Asst. Surgeon will also be shortly retiring (June 2014) and the said post would also be going to fall vacant, it is difficult to get the trained and experienced Doctors in the Dept. of Cancer Detection Clinic. It is also submitted that among six sanctioned posts of Asst. Surgeons, 1 post be modified as proposed."29
EXISTING Sl Category Mode of Minimum Age limit Scale of No Of post Recruitment Qualification the post 01 Asst. By Direct a) Should be holder SC/ST - 28100-
Surgeon Recruitment of degree in 40 yrs, 50100
medicine of any Cat-I
-2 Years University Cat.IIA,
Probationary established by law IIIB-38yrs.
period in India. GM-35yrs
b) Preference will be
given to those with
post graduate
qualification;
c) Experience in
Oncology and
Academic and
professional
attainment preferred.
PROPOSED
Sl Category Mode of Minimum Qualification Age limit Scal
No Of post Recruitment e of
the
post
01 Asst. By Direct a) Should be holder 40 yrs 28100-
Surgeon Recruitment of degree in BDS of Age Limit: 50100
any University Relaxable
-2 Years established by law in in Spl.
Probationary India. Circumsta
period b) Preference will be nces for
given to those who which
have worked with reasons to
various Health be
Camps in an recorded
Oncology based in writing.
institute.
c) Experience of
atleast 10 years-work
experience in
Oncology institute
may be preferred.
24. He would contend that though the above proposal was placed, a reading of the resolution passed would demonstrate that the proposal has not been accepted in toto and the Governing council had relaxed the age upto 40 years only.
30
25. He would further point out that out of the 17 posts, the resolution decided to convert 1 (one) post for dental and fix the age limit as 40 years. The resolution by the Governing Council does not reflect the vesting of any power in the selection committee or any other authority to relax the age limit. That the amendment carried out to the Rules is beyond the resolution adopted and passed in the governing council and hence the same is illegal.
26. He would further submit that no minimum qualification is stipulated in the resolution in respect of the post for Assistant Surgeon-(MBBS). He would further draw the attention of the Court to Rule 10(3) of the Rules and Regulations of the Institute where it reads as under :-
"10. Powers and functions of the Governing Council (3) The Governing Council shall also have the power to add, alter or amend the Rules and Regulations and Bye-laws of the Society consistent with the Societies Registration Act and subject to approval of the Government of Karnataka."31
He would contend that the bye-laws have not received the approval of the Government. He would point out that the objections have not been considered and disposed off in a manner known to law.
27. He would further draw the attention of the court to bye-law No.12 providing for the constitution of the selection committee and draw the attention of the court to clause 2 of bye-law 12 which details the selection committee in respect of the posts of Asst. Professors /Lecturers/Research Assistants / Surgeons. Constituents of the Committee are as follows:-
1) Director to be the Chairman
2) Nominee of the Director of the Medical
Education to be the member
3) The nominee of the Vice Chancellor of the
Bangalore University to be the member
4) Deputy Secretary of the Government of
Karnataka, Health and Family Welfare to be the member 32
5) One expert in the concerned subject to be nominated by the Chairman of the GC to be the member
6) Head of the department in the concerned subject of the Institute to be a member
7) Administrative Officer of the Institute who is to be Member Secretary of the Committee And would draw the attention of the court to Annexure R9 said to be the proceedings of the Selection Committee as per the notification No.KM10/EST-1/51/2016-2017 dt:06.07.2016.
28. He would point out that the members who have affixed the signatures are not those who are entitled to be appointed as members of the selection committee.
29. He would contend that the selection committee constituted, is violative of Clause (c) of bye-law 12. He would contend that the Registrar (Evaluation), Rajiv Gandhi University has affixed his signature on 10.11.2016 and he is not entitled to be a member. He would further 33 point out that the Deputy Director (Medical Education) is also not entitled to be a member of the Committee.
30. He would point out that the other signatory is the Joint Secretary on behalf of the Joint director, Social Welfare Department, who is also not entitled to be appointed to the Committee and he would point out that out of 5 signatories, three signatories are persons who are not entitled to constitute the selection committee and he would submit that the constitution of the very selection committee is illegal and consequently the said selections by the committee are also vitiated. He would submit that out of 7 members who constitute the committee, only two members i.e. the Chairman of the selection committee, who is the Director of the Institute and the Chief Administrative Officer, who is the Member Secretary of the Committee, have legitimately participated in the selection committee meetings and the remaining were ineligible to participate in the meetings of the selection committee. 34
31. He would further contend that the mandatory prior approval of the State Govt. is not forthcoming and hence the amendment is bad on this count also.
32. The learned counsel for the second petitioner apart from reiterating the contentions raised by the counsel for the first petitioner with regard to the power of the selection committee to relax the age limit beyond the age of 40 years and with regard to the validity of the amendment, would buttress the argument regarding the legality of the selection committee and would draw the attention of the court to Annexure-M, which is an objection preferred by the second petitioner to the Chairman of the Governing Council, and Annexure N which is addressed to the Secretary, Government of Karnataka, Medical Education Department.
33. He would draw the attention of the Court to the first objection. He would contend that it was specifically pointed out to the Chairman that, none of the selection Committee members had any Dental Science background as is required by the general bye-laws. He would draw the 35 attention to the 'member' referred to in sl.no.(v) of clause
(c) of bye-law 12, wherein it is stated; (v) one expert in the concerned subject to be nominated by the Chairman of the Governing Council. He would also submit that no head of department in the concerned subject was also present. It is also alleged that the questions posed related to politics, sports and news and expressed serious doubt regarding the method of evaluation of the candidates.
34. It is pertinent to note that the representations were addressed to the Chairman of the Governing Council and the Secretary, Dept. of Health and Family Welfare (Medical Education). To sum up, the petitioners and other objectors had, in fact, pointed fingers at the selection committee, more particularly the Director of the Institute, who is the Chairman of the selection committee.
35. The writ petitions came to be resisted by the second respondent-Institution. They have filed detailed statement of objections and the third respondent has also filed a detailed statement of objections. The Institution has also filed an additional statement of objection and 36 pursuant to the direction of this court, have also placed two files relating to the selection of the third and fourth respondents and also the register maintained by the selection committee evidencing the fact of meeting of the members of the selection committee on 18.10.2016. That apart, the Institute has also placed before this Court the comparative statement of marks awarded by the selection committee in a tabular form.
36. It is contended by the learned Senior counsel appearing for the Institute, that the second respondent- Institute came to be established as an autonomous institution by the Govt. of Karnataka vide G.O.No.HFW 43 MSD dt.27.12.1979. That it came to be constituted as a Society under the Karnataka Societies Registration Act of 1960 on 8.1.1980. That the Governing council is the supreme authority responsible for achieving the objects of the society and for the overall administration of the Institute.
That in November 1980 the Government of India decided to develop the Institute as a regional centre for cancer research.
37
37. It is contended by the learned senior counsel that the petitioners who have participated in the selection process by responding to the notification dt.6.7.2006, cannot now turn around and question the very process and the regulation and are estopped from doing so and he would place reliance on the law laid down by the Hon'ble Apex court in this regard in the case of University of Cochin, represented by its Registrar, University of Cochin - vs- N.S.Kanjoonjamma & others reported in (1997)4 SCC 426 wherein it was held by the Apex Court that the first respondent having applied for and having remained unsuccessful, she is estopped from challenging the correctness of the procedure for having participated in the same. It is submitted that similarly in the instant case also the petitioners having participated in the process and being not successful cannot turn around and challenge the process itself. In para 3 the respondent has extracted a portion of the notification regarding the fixation of upper age limit for desiring candidates. It reads as follows :- 38
Age limit : for SC/ST category 1 to 40 years for category IIA, IIB, IIIA, IIIB- 38 years and for GM 35 years on the last date prescribed for submissions of the applications (Relaxation in upper age limit to the candidate will be considered by the Selection Committee in accordance with institution Bye-laws"
And would contend that knowledge of the rule enabling the Institute to relax age limit must be attributed to the petitioners. Hence, the present contention that the age barred candidate has been selected cannot be countenanced as it is in the teeth of the principles of estoppel.
38. It is further contended by the learned senior counsel that the petitioners' contention that only the State Govt. has the power to relax the upper age limit and the Institute is not vested with such power is unsustainable.
39. Learned Senior counsel would contend that the Institute being an autonomous body has framed its own rules and regulations apart from the general bye-laws and 39 the cadre recruitment rules. He would draw the attention of the court to bye-law 11 which reads as under :-
"11(1) Age, experience and other qualifications for appointment to all posts in the Institute shall be s prescribed under the Cadre and Recruitment Rules. Relaxation, if any, may be provided for in the said Rules."
40. The Learned Senior Counsel further submits that the Governing council in its 45th meeting held on 12.5.2014 had authorised relaxation of the upper age limit in special circumstances for which reasons ought to be recorded in writing and would draw the attention to the proceedings drawn up and contained in the note sheet to the file which reads as under. :
"It may be pointed out here that the upper age limit prescribed for the post of Asst surgeon is 35 years for GM, 38 years for OBC and 40 years for SC/ST, Cat-I, Dr.Mahantesh A.S belongs to GM category. His date of birth is 27.12.1973. He has completed 42 years, 7 months of age as on the last date prescribed for receipt of application. But he is working in the Institution in various 40 capacities on ad hoc basis for the last 16 years. He has participated in several Cancer Detection camps. He has also got experience of more than 10 years in the Oncology Institute. According to the Cadre and Recruitment Rules prescribed for the Asst. Surgeon (BDS), preference must be given to those who have worked with health Camps in Oncology based Institute with the experience of at least 10 years in Oncology Institute. The Selection Committee by recording reasons in appropriate cases may relax the upper age limit prescribed. The Selection committee considering the experience gained by the Dr.A.S.Mahantesh in the Institute of Oncology for more than 10 years, decided to relax the upper age limit" .
41. Learned Senior counsel would further draw the attention of the court to the amendment that was proposed to the Cadre & Recruitment Rules and would take the court to Sl.No.47 which pertains to the post of Asst.
Surgeons wherein the mode of recruitment is said to be by direct recruitment and prior to the amendment, the age limit was fixed at maximum 35 years age. The minimum qualification then prescribed was a degree in medicine and 41 it was stipulated that preference would be given to those a) with post graduate qualification b) experience in Oncology and academic and professional attainment. .
42. Pursuant to the amendment the age limit came to be increased to 40 years and the minimum qualification came to be amended to read a) should be holder of a degree in BDS of any university established by law in India
b) preference will be given to those who have worked with various health camps in oncology based institute c) experience of atleast 10 yrs. in oncology based institute may be preferred.
43. Learned Senior counsel would contend that the selected candidates - R3 and R4 alone had the prescribed qualification and hence R3 and R4 were selected and that their selection is fully in compliance with the rules and regulations of the institute and the respondent cannot be faulted of the same. It is contended that the petitioners do not possess the prescribed minimum qualification of having participated in health camps organised by an Oncology based institute and having 10 years experience 42 in an Oncology based institute and as the selected candidates satisfied these two norms, they have been selected for the post of Asst. Surgeon.
44. He would further contend that the objections raised by the petitioners have been considered and replied and hence the allegations stand answered. He would draw the court's attention to Ann.R3. A perusal of the same would demonstrate that it is a summation of the objections raised by various candidates and the corresponding remarks by the Director of the second respondent-Institute who incidentally headed the selection committee as its chairman.
45. The learned Senior counsel would further contend that the allegation of improper formation of the selection committee has to be rejected in toto. He would contend that the committee was headed by the Director of the Institute who possesses a post graduation degree in Anesthesia and is backed by two decades of rich experience at the institute and that independent professionals like the Registrars (Evaluation), Rajiv Gandhi 43 University, Deputy Director of Medical Education, Member Secretary and the nominee of the Social Welfare Department constituted the selection committee and participated in the process and that the constitution of the committee is as per the bye-law and rules. That the date of the selection was intimated to the candidates and on the said date, a majority of the members constituting the selection committee had assembled and concluded the proceedings for selection.
46. It is further contended by the learned Senior counsel that the petitioners have not alleged and proved any malafides. It is contended by the learned senior counsel that the question of separate approval of the amendment by the State Govt. is superfluous as the Governing Council itself is headed by the Hon'ble Minister for Medical Education, Govt. of Karnataka and in sum and substance the Governing council is the Medical Education Dept. for the Government of Karnataka and in this regard he would place reliance on note 2 of Rule 30(5) read with Rule 33(1) of the Karnataka Govt. (Transaction of 44 Business) Rules 1977 and he would contend that the Minister incharge is authorised to approve the amendment to C and R Rules and hence the contention that the amendment has not been approved is liable to be rejected at the threshold. He would also place reliance on Annexure R9 produced along with the additional statement of objections to demonstrate that the authorities have recorded the reasons for relaxation of the rule as contemplated in the cadre and recruitment rules. The learned Senior counsel would contend that the charge of a subject expert not being part of selection committee is misplaced and incorrect.
47. He would contend that the post of Asst.
Surgeon-BDS has been created for the purpose of facilitating Cancer Detection Camps to be held throughout the State. Enlarging the said submission he would submit that the focal duty of the Asst. Surgeon BDS is to hold camps and educate people about the effect of illness and for early detection of the illness. That the purpose of holding camps is to enable the detection of the disease at 45 an early stage and the Asst. Surgeon BDS is equipped to discharge this function. That in view of such a requirement, an amendment came to be incorporated in the C and R Rules as under :-
"(b) Preference will be given to those who have worked with various health camps in an Oncology based Institute"
48. He would submit that in view of the above, no subject expert is required and the Director who is an Anesthetist (PG) would be in a position to assess the capabilities of the candidates. Hence, the Chairman being the HOD of the palliative care unit was the appropriate person to assess the capabilities of the candidates aspiring for the post of Asst. Surgeon BDS. He would attempt to dissuade this court to attach any importance to the presence of the Resident Medical Officer who was made the In-charge Medical Superintendent of the Institute.
49. The learned senior counsel would also place before the Court the duties and responsibilities of a Asst. Surgeon to buttress his argument regarding the special 46 qualifications prescribed under the amended C & R Rules. Learned senior counsel would contend that as per file note bearing file No.KMIO EST/I/51/16-17, the authorities have recorded the reasons for relaxing the age under the special circumstances and that the selection committee has approved the same by circulation. He would contend that as no minimum quorum is fixed under the bye-laws of the C and R rules, a decision of the majority would suffice to meet the requirements of law. In this regard he would place reliance on the ruling of the Apex Court reported in 1972(3) SCC 383 Supreme Court Cases (Shri Ishwar Chandra -Vs- Shri Satyanarain Sinha and others) and would draw the attention of this Court to para 10 of the said judgment which reads as under :-
" 10. This letter clearly negatives the assumption in the High Court's order that Shinde was trying to keep out Justice Naik from the meeting. On the other hand, Shinde in that letter had requested Justice Naik to on his part to keep Justice Naik away from the meeting. There is also nothing in the materials on the record to show that the correspondence cited above was perused by the Chancellor either at the time when the show-47
cause notice was given to the appellant or at the time of making the impugned order. It cannot, therefore, be assumed that the Governor was influenced by the above correspondence. It is rather unfortunate that the appellant's writ petition was dismissed in limine and without a proper appreciation of all the relevant facts. There is little doubt that the impugned order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delved into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the writ petition in limine which, in our view, was not justified. It is also not denied that the meeting held by two of the three members on April, 4, 1970, was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a 48 valid meeting and matters considered thereat cannot be held to be invalid. "
50. He would contend that the deliberation of the selection committee need not be recorded and in this regard he would place reliance on the ruling of the Apex Court reported in 2008 (14) SCC 306 (B.C.Mylarappa alias Dr. Chikkamylarappa -Vs- Dr. R.Venkatasubbaiah and others) and draw the attention to para 29 which reads as follows :-
" 29 It is not in dispute that there is no rule or regulation requiring the Board to record reasons. Therefore, in our view, the High Court was not justified in making the observation that from the resolution of the Board selecting the appellant for appointment, no reason was recorded by the Board. In our view, in the absence of any rule or regulation requiring the Board to record reasons and in the absence of malafides attributed against the members of the Board, the selection made by the Board without recording reasons cannot be faulted with."49
51. He would further rely on the ruling reported in 2010(12) SCC 576 (Manish Kumar Shahi -Vs- State of Bihar & others) to contend that the petitioners having participated in the selection process have thereby acquicised with the said process and are estopped from calling in question the recruitment process.
52. He would further place reliance on the rulings of the Apex Court reported in (2013) 11 SCC 309 (Ramesh Chandra Shah and others -Vs- Anil Joshi and others) and draw the attention of the court to para 24 which reads as follows :-
" 24. In view of the propositions laid down in the abovenoted 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 selection and the learned Single Judge and the Division Bench of the High Court committed grave 50 error by entertaining the grievance made by the respondents. "
53. He would further rely on the ruling of the Apex Court to 2014 (16) SCC 187 (Ranjan Kumar and others - Vs- State of Bihar and others) with particular reference to para 14 and would contend that the petitioners who do not possess the minimum qualification as per Clauses (b) and
(c) of the amended rule are not entitled to maintain the writ petitions.
" 14. The next submission which has been presented before us is that when the respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated. In this connection, it is apt to refer to the principle stated in Om Prakash Shukla v. Akhilesh Kumar Shukla. In the said case a three - Judge Bench, taking note of the fact that the petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realised that he would not succeed in the examination, held that the writ petitioner 51 should not have been granted any relief by the High Court. "
54. Learned counsel for the respondent No.3 would submit that the concept of bye-laws is alien to the societies constituted under the Societies Registration Act, 1960 and would submit that only a memorandum of association and rules and regulations as envisaged under the Act are relevant for the administration of the society. In this regard he would place reliance on "Blacks Law Dictionary' to define a bye-law and he would also place reliance on the judgment rendered by the Hon'ble Apex Court and reported in AIR 2017 Supreme Court 697 (State of Tripura & others -Vs- Nikhil Ranjan Chakraborty and others.)
55. As regards the other contentions of the petitioners, he would submit that he adopts the arguments of the learned Senior counsel.
56. He would also draw the attention of the court to Ann.R3, a service certificate, to demonstrate the fact that the 3rd respondent has more than 10 years experience in 52 the Oncology Institute. He would also draw the attention of the court to various certificates evidencing the participation of the third respondent in various conferences and also the seminars.
57. Learned counsel for the fourth respondent would contend that the petitioners have no complaint regarding the age of the respondents and he would submit that the writ petition is bad for non-joinder of parties and he would adopt the contentions of the learned senior counsel.
58. In reply to the submissions of the learned Senior Counsel, the learned counsel for the first petitioner, would submit that the provisions of Rule 33(1) of the Transaction of the business Rules is not applicable and the mere fact as the Minister appending his signature to the file as the Chairman of the Governing council would not suffice or meet the requirement of law, i.e., approval by the Government, and that independent proceedings seeking approval is mandatory in view of the fact that it involves multiple departments. He would submit that the general 53 council is headed by the Health Minister whereas the proceedings are signed by the Minister for Medical Education. There is substance in the contention.
59. Learned counsel for second petitioner would submit that, the contention on behalf of the respondent that majority of the members of the selection Committee had participated in the proceedings is erroneous. He would submit that only three of seven members nominated under the bye-law were present and the remaining two members who have appended their signatures to the proceedings of the Selection Committee are not even eligible to be designated as members under bye-law 12(c).
He would draw the attention of the court to Regulation 12(c) of the Bye-laws of the second respondent- Institute, wherein one of the selectors is the nominee of the Director of Medical Education.
Further he would draw the attention to bye-law 12 clause (c) in conjunction with Annexure-R9, produced along with the additional statement of objections, by the 54 respondent No.2-Institute and would point out that the Registrar (Evaluation), Rajiv Gandhi University of Health Sciences, the Joint Registrar, Social Welfare Department are not designated as members of the selection committee under the bye-law.
He would also submit that there is no material on record to demonstrate that the notice was issued to all members of the Selection Committee in accordance with the bye-law. He would further contend that the proposal that was placed before the Governing Council enabling age relaxation without fixation of upper age limit has not been approved by the Governing Council and what is approved by the Governing Council is capping the age limit at 40 and in the light of the said fact, the selection of the respondents is contrary to the Rules and Regulations and he would contend that the relaxation of age is permissible only upto the age of 40 and nothing beyond. He would further contend that mere participation of the Minister as Chairman of the Governing Council would not tantamount to deemed approval of the Government. He would place 55 reliance on note (2) to Sub Rule (5) of Rule 30 of Karnataka Government (Transaction of Business) Rules, 1977 which reads as follows :-
(2) Where sanction of approval of Government is required for any proposal from any company, society, local body or other institution it shall be examined by the department concerned in the same manner as a case belonging to such Department.
He would contend that in the light of the admission by the learned Senior Counsel that the hospital as a Centre of Higher Education falls within the domain of the Ministry of Medical Education as per Schedule 7 of the Karnataka Government (Allocation of Business) Rules, 1977. The rule ought to have been approved by the said department and a mere appendage of signature by the Health Minister as Chairman of the Governing Council would not amount to compliance of the bye-law.
He would draw the attention of the court to Rules 10(3) of the Rules and Regulations empowering the Governing Council to amend the Rules and Regulations 56 and bye-laws of the Society to the approval of the Government. He would submit nowhere is there even a whisper that the Government has approved such amendment. Lastly he would contend that the selection of respondents 3 and 4 is not in consonance with the amended Rules of Recruitment.
60. This Court after hearing the parties was pleased to direct the second respondent Institute to place before the Court the file relating to the selection. The learned Senior Counsel has placed before the Court the original files that is, one pertaining to the issue of notification calling for applications, the interview notice and draft copy of the applications to be filled up by the candidates maintained by the office of the second respondent-Institute. The other file pertains to the approval of the candidates recommended by the selection committee and one register evidencing the meeting of the selection committee. The relevant page in the register, is the page facing the page numbered as 108 and the members who have signed the Register evidencing their 57 presence is the Director, nominee of the Director of Medical Education and nominee of the Vice Chancellor of the Rajiv Gandhi University, Deputy Secretary to Government of Karnataka, Medical Education, nominee from the department of Social Welfare, Medical Incharge Superintendent and Chief Administrative Officer and original of the consolidated marks list signed by the Director and Chairman of the Selection Committee.
61. The original statement of marks awarded by the various members of the committee under various heads of criteria adopted by the selection committee in respect of both the candidates from the stream of medicine and BDS.
62. This Court proceeds to examine the relevant provisions pertaining to the constitution of the selection committee to determine as to where the selection committee has been validly constituted and as to whether the selection committee has acted and conducted the proceedings in accordance with the bye-laws more particularly as per the bye-law 12(c).
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63. It is not in dispute, that the selection committee, to select the candidates for the post of Asst. Surgeon ought to be in compliance with Clause (c ) of bye-law No.12 of the Society Bye-laws and comprise of members named under bye-law 12(C).
Under 12(c) of the bye-law the following are designated to constitute the selection committee; they are :-
(c) FOR THE POST OF ASST. PROFESSORS/LECTURERS/ RESEARCH ASSISTANTS/RESIDENTS
(i) The Director .. Chairman
(ii) A Nominee of the Director of Medical Education .. Member
(iii) A Nominee of the Vice-Chancellor of Bangalore University ... Member
(iv) Deputy Secretary to Government of Karnataka, Health & F.W. .. Member
(v) One Expert in the concerned subject to be nominated by the Chairman of the Governing Council .. Member
(vi) Head of the Department in the concerned subject of the Institute .. Member
(vii) Administrative Officer ... Member-
Secretary
64. As per Pay and Recruitment Rules and Conditions of Service Rules & Miscellaneous Provisions 59 Rules of 1991 adopted by the Institute for its better governance provides for the function of the selection committee. Rule 8 of the aforesaid Rules leads to the functions of the selection committee :
a) That the selection committee shall meet at Bangalore
b) It shall examine the credentials of all applicants, who are being considered for appointment to the posts by deciding the procedure for conducting the selection.
c) It shall prepare a panel of names in the order of merit;
d) Where a candidate has applied for any post, it shall be open to the selection committee to recommend the candidate for appointment to any other post whether it be equivalent or higher or lower than the post applied for.
65. In essence it stipulates that the selection committee ought to meet at Bengaluru; secondly it ought to examine the credentials of all applicants who are being considered for appointment of posts by deciding such 60 procedure and thereafter it is required to prepare the panel of names in the order of merit and lastly it is open to the selection committee to recommend the name of the candidate to a post higher or lower than the one for which he or she applied for.
66. From a reading of the above bye-law No.12, it is apparent that the constitution and constituents of the selection committee is pre-determined and ought to be in accordance with the bye-law of the Institute only.
67. Apparently it is not in dispute that the persons who were present and constituted the selection committee are the Director, the Administrative Officer, Deputy Director Medical Education, the Registrar (Evaluation) Rajiv Gandhi University and Joint Director of the Social Welfare Department.
68. Neither the Registrar (Evaluation) Rajiv Gandhi University nor the Joint Director, Social Welfare Department, are persons who are designated as members as per Bye-law 12(c). As per Bye-law 12(c) the nominee has 61 to be a nominee of the Bangalore University whereas the selection committee comprised of the nominee of the Rajiv Gandhi University. There is nothing on record to demonstrate that the Registrar (Evaluation) Rajiv Gandhi University has been nominated by the Vice Chancellor of the Bangalore University. So much so, the files do not even disclose as to which authority has nominated the Joint Director, Social Welfare Department.
69. The Joint Director is not nominated by any of the authorities under bye-law 12(c). Hence, two members who are ineligible to participate in the selection committee have taken part in the process. That apart it is seen that the designated members at Sl.No.4 i.e. Deputy Secretary to Government of Karnataka, Health and Family Welfare has not participated in the proceedings, so also the subject expert and the head of the department in the concerned subject of the Institute are conspicuous by their absence. The subject expert has to be nominated by the Chairman of the Governing Council. It is not in dispute that the head of the department in respect of the BDS graduates would 62 have been the HOD of Oral Oncology. The existence of such a department is not denied.
70. The very constitution of the selection committee prima facie appears to be contrary to the bye-laws, Rules and Regulations of the second respondent-Institute. Consequently vitiating the selection process.
71. That apart on a perusal of the two original files placed before the Court, there is no material on record to indicate the meeting of the selection committee on any other date apart on 18.10.2016.
72. From a perusal of Annexure-9 it is seen that the same is signed by the Registrar (Evaluation) on 10.11.2016 and others have not noted the dates on which they affixed their signatures.
73. The Selection Committee, ought to meet at Bengaluru and no right to pass any resolution or conduct any proceedings by way of Circulation is provided under the Rules. Whereas such a procedure is provided in respect of governing council meetings, where the 63 resolutions can be approved by way of circulation. This finding is further buttressed by the record of proceedings of the selection committee produced as Annexure-R9 on page 2 after detailing the members present, it is stated as follows :-
"All the Selection Committee Members were invited to the interview by serving Meeting notice well in advance and also they were informed over Telephone. The Deputy Secretary to Government, Medical Education Dept. expressed his inability to attend the interview. A Nominee from the Dept. of Social Welfare Dept. Sri H. Rangamurthy, Gazzetted Manager, Joint Director's office, Social Welfare Dept. Bangalore(Urban) attended the interview on 18.10.2016 and reviewed the Selection process and signed the attendance register. The other members were present and signed in the register. The Selection Committee after taking note of the situation, conducted the interview. The marks awarded by the individual Selection Committee members and signed by them in separate sheets have been kept in records."
On the last page of the proceedings it is seen that the Deputy Director, Medical Education, who, as per the 64 respondents, is said to have been absent from the meeting has appended his signature as if he was part of the proceedings himself. As noted above, the proceedings of the selection committee cannot be by circulation whereas, the Registrar, Rajiv Gandhi University has appended his signature on 10.11.2016. There is no material on record to demonstrate that the selection committee met on 10.11.2016 and deliberated about the selection of the candidates.
74. With regard to the procedure adopted by the selection committee for the purpose of evaluating the candidates, leaves much to desire.
75. Under the notification applications were invited for 8 posts of Asst. Surgeons, out of which it was stated, two posts were in respect of the candidates who have completed their BDS and 6 candidates who have completed their MBBS degrees. Both the BDS candidates and the MBBS candidates have been placed on the same footing for the purpose of said posts. It is not in dispute 65 the qualification prescribed under the Cadre and Recruitment Rules and as detailed in the notification.
(a) Should be holder of degree in BDS of any university established by law in India ;
(b) Preference will be given to those who have worked with various health camps in an oncology based Institute ;
(c) Experience of atleast 10 years work experience in Oncology Institute may be preferred.
76. Subsequently the governing council in its 45th meeting is said to have approved the proposed amendment. Under the said proposed amendment, the minimum qualification stipulated would change i.e. he should be a holder of degree in BDS and it was stated that preference would be given to those who have worked with various health camps in an oncology based institute and it is stated that the candidate should possess a minimum work experience of 10 years in an Oncology Institute. 66
77. It is pertinent to note that the C & R Rules, earlier stipulated a MBBS degree as the minimum prescribed qualification. By the subsequent amendment the said minimum requirement has been altered to one of BDS Degree.
78. The second respondent has, in fact, placed a copy of the agenda of the 45th meeting of the governing council and the agenda for modification of the C& R Rules was listed as item No.16. On perusal of the proposal, which is said to have been accepted in toto, it is seen that the minimum qualification stipulated, regarding possessing of MBBS degree has been omitted.
79. A literal and conjoint reading of the proposal placed before the Committee and adopted, would indicate such an eventuality, thereby rendering vulnerable the selection of the 6 (six) candidates who possessed MBBS degrees.
80. It is also not clarified whether the criteria detailed at Sl. (a) (b) & (c) applied to all the candidates or 67 applies only to holders of BDS degrees. It is also not clear as to whether the Rules as it previously existed has been retained.
81. The only conclusion a prudent person could arrive at is that the Rule as it then existed has been substituted by the proposed modification. If that be so, the second respondent could not have selected any of the candidates who possessed MBBS degrees.
82. The entire process, post notification is submerged in opacity. There is absolutely no clarity with regard to the fact if a meeting of the selection committee had been convened either prior or post 18.10.2016. The said factor assumes significance in the light of the fact that the selection committee has adopted different criteria to adjudge the candidates, in respect of the same post, that is, a different set of criteria in respect of the BDS candidates and the candidates who are MBBS degree holders. This is made obvious from a perusal of the mark list said to have been prepared by the members of the 68 selection committee. The selection committee adopted dual standards in respect of one post.
83. In respect of the candidates who possessed MBBS degrees, the following criteria was adopted by the selection committee in respect of the selection held on the same date :-
i) post graduate qualification;
ii) MBBS gold medalist;
iii) Extra curricular activities/sports
iv) paper publication;
v) paper presentation;
vi) experience
vii) average of all internals In respect of the candidates possessing BDS degrees, the following criteria was adopted by the selection committee :-
1) Experience in Oncology Institute;
2) Cancer detection camps attended;
3) Extra curricular activity/sports; 69
4) Paper publication;
5) Paper presentation;
6) Average of all internals Thus, it is apparent that the selection committee has adopted different yardstick in respect of the candidates who possessed BDS degrees.
84. It is seen that the selection is to a common post of Assistant Surgeon. But no reasons are assigned as to why there is insistence upon experience with an Oncology Institute and attendance of cancer detection camps only in respect of the candidates who possessed BDS degrees.
85. Further it is also not made known as to how the members of the committee, apart from the Chairman of the Selection Committee who is an Anesthetist and a Medical Superintendent who is a Doctor by profession, are eligible to assess the proficiency of the candidates under the first two criteria i.e. 1) experience in Oncology institute and 2) Cancer detection camps attended.
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86. It is apparent that none of the other members viz. the nominee of the Vice Chancellor, Rajiv Gandhi University, nominee of the Director of Medical Education and the Deputy Secretary of the Social Welfare Department or the Chief Administrative Officer are medically trained persons and equipped with sufficient knowledge to assess the proficiency of the candidates under the said headings. It is also not placed on record as to when the selection committee decided to adopt this different yardstick in respect of the candidates possessing MBBS degree and the candidates possessing BDS degree. Apparently, the record reveal that the only date on which the selection committee met, if it could be called as one, was on 18.10.2016 i.e. after the publication of the notification inviting applications. Under the notification no such criteria was intimated to the applying candidates. If this dichotomy and yardstick had been published in the notification inviting applications, it would have lead to litigations at the notification stage itself. It is apparent that the Director of the Institute has resorted to such subterfuge to achieve a pre-determined result. The criteria having not been 71 notified and having been subsequently adopted by the Selection Committee after the commencement of the process, certainly tantamounts to changing the rules of the game after the game has commenced, which in the considered opinion of the court is impermissible. There is not even a scrap of paper available in the records that such a dual standard or different yardstick has been deliberated and adopted by the selection committee.
87. The tweaking of the rules/the adoption of the dual standards for assessing candidates to the same post all appears to be a pre-determined exercise in order to favour the selected candidates viz. the third respondent, who is common in both the writ petitions, and the fourth respondent in the second writ petition.
88. The entire exercise appears to have been orchestrated by the Director of the Institute with the sole objective of and malafide intention of ensuring appointments of the selected candidates. The stipulation regarding work experience in an Oncology Institute and experience in cancer detection camps and that too 72 stipulating minimum experience of 10 years is designed solely to aid and advance the selection of respondents 3 and 4. Unfortunately from the records it is apparent that only the third respondent has worked for more than 10 years in an Oncology Institute i.e. in the second respondent- Institute only. The fourth respondent even as per his own records has been in the employment of the second respondent- Institute for only nine years and seven months and hence his selection is also vitiated even as per the norms adopted by the second respondent-Institute.
89. In this regard a perusal of the application is also relevant. The applications issued to the BDS candidates and MBBS candidates is one and the same, as it should be as it relates to one category of post, i.e., Assistant Surgeon, and only a degree in BDS is prescribed as the minimum educational qualification.
90. That apart, from the records submitted by the third respondent it is neither discernible nor do they disclose any material of him having acquired any special skills with regard to the cancer detection or cancer treatment. 73 Though it is declared that he has participated in cancer detection centers and camps organized by the second respondent, it is not made known in what capacity he has participated in the camps. Whether he was invited to the camps as a technical expert or merely he was a participant? Not a single certificate is placed on record either by the third or fourth respondent to demonstrate the fact that they have acquired any special skills with regard to the cancer detection or performance of any ancillary duties. From the criteria stipulated what a prudent person could infer is that the candidate must possess some skills with regard to cancer detection or cancer treatment. For otherwise if no such special skill is required, then the said stipulation is rendered meaningless.
91. The selection committee comprises of persons who were ineligible to adjudge such skills also. In totality the picture that emerges is that the process of selection has been given a semblance of transparency by a public invitation. But by both prior or post notification actions, the entire process has been subverted to achieve a pre- 74 determined result. Candidates who had secured post graduate degree in Dental Science and candidates who have out scored respondents 3 and 4 in the marks and grades both in the bachelors and post graduate degrees, have been ignored, merit has been given a go-by and it has been sacrificed at the altar of convenience to enable the Chairman of the committee i.e. the Director of the Institute to achieve the vested interest of selection of candidates in whom he was interested. This subversion commenced from the stage of the amendment of the Rules and continued till the stage of interview, where the Selection Committee without any prior intimation and even without arriving at any conclusion to adopt different yardsticks proceeded on those lines. The adoption of different yardstick is per se arbitrary and it is apparent that it is on the dictates of a vested interest.
92. This considered view of this court is fortified by the law laid down by the Hon'ble Apex Court in the case of K.Manjusree Vs. State of A.P. and another reported in (2008) 3 SCC 512 has held as follows:
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16. The Rules did not prescribe any procedure for selection. When the posts were advertised, the only criterion for selection that was mentioned was that the selection will be by holding a written examination followed by an interview. The manner of holding written examinations and interviews, the marks for written examination and interview, whether the candidates should secure any minimum marks in the written examination and/or interview, were all yet to be decided.
24. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier resolutions dated 24.7.2001 and 21.2.2002 and held that what was adopted on 30.11.2004 was only minimum marks for written examination and not for the interviews.
Therefore, introduction of the requirement of minimum marks for interview, after the entire 76 selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them P. K. Ramachandra Iyer v. Union of India 1984 (2) SCC 141, Umesh Chandra Shukla v. Union of India 1985 (3) SCC 721, and Durgacharan Misra v. State of Orissa 1987 (4) SCC 646.
25. In Ramachandra Iyer (supra), this Court was considering the validity of a selection process under the ICAR Rules, 1977 which provided for minimum marks only in the written examination and did not envisage obtaining minimum marks in the interview. But the Recruitment Board (ASRB) prescribed a further qualification of obtaining minimum marks in the interview also. This Court observed that the power to prescribe minimum marks in the interview should be explicit and cannot be read by implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. This Court held that as there was no power under the rules for the Selection Board to prescribed the additional qualification of securing minimum marks in the interview, the restriction was impermissible and had a direct impact on the merit 77 list because the merit list was to be prepared according to the aggregate marks obtained by the candidates at written test and interview. This Court observed :
Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high up in the merit list was likely to be rejected on the ground that he has not obtaining minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtaining qualifying marks at viva voce test. This was impermissible and contrary to rules and the merit list prepared in contravention of rules cannot be sustained.
26. In Umesh Chandra (supra), the scope of the Delhi Judicial Service Rules, 1970 came up for consideration. The rules provided that those who secured the prescribed minimum qualifying marks in the written examination will be called for viva voce; and that the marks obtained in the viva voce shall be added to the marks obtained in the written test and the candidates ranking shall depend on the 78 aggregate of both 27 candidates were found eligible to appear for viva voce on the basis of their having secured the minimum prescribed marks in the written examination. The final list was therefore, expected to be prepared by merely adding the viva voce marks to the written examination marks in regard to those 27 candidates. But the final list that was prepared contained some new names which were not in the list of 27 candidates who passed the written examination. Some names were omitted from the list of 27 candidates who passed the written examination. It was found that the Selection Committee had moderated the written examination marks by an addition of 2% for all the candidates, as a result of which some candidates who did not get through the written examination, became eligible for viva voce and came into the list. Secondly, the Selection Committee prescribed for selection, a minimum aggregate of 600 marks in the written examination and viva voce which was not provided in the Rules and that resulted in some of the names in the list of 27 being omitted. This Court held neither was permissible. Dealing with the prescription of minimum 600 marks in the aggregate this Court observed :
There is no power reserved under Rule 18 of the Rules for the High Court to fix its own minimum 79 marks in order to include candidates in the final list. It is stated in paragraph 7 of the counter-affidavit filed in Writ Petition 4363 of 1985 that the Selection Committee has inherent power to select candidates who according to it are suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service. But on going through the Rules, we are of the view that no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because clause (6) of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial Service. The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an addition requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause (6) of the Appendix.. We are of the view that the Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix. We are, therefore, of the view that the exclusion of the names of certain candidates, who 80 had not secured 600 marks in the aggregate including marks obtained at the viva voce test from the list prepared under Rule 18 of the Rules is not legal.
27. In Durgacharan Misra (supra), this Court was considering the selection under the Orissa Service Rules which did not prescribe any minimum qualifying marks to be secured in viva voce for selection of Munsifs. The rules merely required that after the viva voce test the State Public Service Commission shall add the marks of the viva voce test to the marks in the written test. But the State Public Service Commission which was the selecting authority prescribed minimum qualifying marks for the viva voce test also. This Court held that the Commission had no power to prescribe the minimum standard at viva voce test for determining the suitability of candidates for appointment of Munsifs.
28. In Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve 2001 (10) SCC 51, this Court observed that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. In this case the position is much more serious. Here, not only the rules of the game were 81 changed, but they were changed after the game has been played and the results of the game were being awaited. That is unacceptable and impermissible.
29. The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the 82 candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.
93. Another astonishing fact which has come to light is the fact that the Director, at whom fingers have been pointed, has acted as a Judge and Jury in his own case. The allegations have been pointedly made against him. The remarks to these allegations are prepared by him and forwarded to the department for approval. To say the least, a pathetic attempt to cover up his own shortcomings and the misdemeanors committed by him in the selection process and he eulogizes himself. It is stated that being an anesthetist, he has acquired vast knowledge in palliative care. It is not known as to how the experience of palliative care is sufficient to adjudge the proficiency of a candidate in Dental Science. It is not in dispute that there is an oral Oncology Department and the bye-laws also stipulated that the head of the department ought to have been a 83 member of the said selection committee. Had there been a participation from such a member, probably it would have given the selection a semblance of respectability.
94. It is further astonishing to know that the selection of candidates is done by non-medical professionals who are incapable of adjudging the proficiency of the candidates.
95. In view of the above discussions, this Court is of the considered opinion that the selection of the third respondent and fourth respondents is contrary to the bye- laws and the Cadre and Recruitment Rules and is also vitiated by malafides.
96. Accordingly, the writ petitions are allowed. The notification dated 17.3.2017 bearing No.KMIO/EST- 1/51/2016-17, produced as Annexure-P is quashed insofar as it relates to the selection of respondent No.3, who is common in both the writ petitions and respondent No.4 in W.P.No.13427/2017.
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In view of the order allowing the writ petitions, I.A.3/2017 filed in W.P.No. 12907/2017 for modification of the order dated 4.4.2017 does not survive for consideration.
Sd/-
JUDGE CT-HR rs