Karnataka High Court
Dr J Sukumar vs State Of Karnataka on 27 July, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 27TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P. NO.8085/2008
C/W.
W.P. NO.15880/2007 (S-RES)
W.P. NO.8085/2008
BETWEEN:
DR J SUKUMAR
AGED ABOUT 52 YEARS
S/O N S JAYARAJ
SCIENTIST D MULBERRY PATHOLOGY AND
MICROBIOLOGY SECTION,
MORICULTURE DIVISION,
KARNATAKA STATE SERICULTURE
RESEARCH AND DEVELOPMENT INSTITUTE
THALAGHATTAPURA,
KANAKAPURA ROAD,
BANGALORE-560 062 ... PETITIONER
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR M/S P.S.
RAJGOPAL ASSOCIATES, ADVOCATES)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
COMMERCE AND INDUSTRIES
DEPARTMENT
VIKASA SOUDHA,
DR. AMBEDKAR VEEDHI
BANGALORE-560 001
2. COMMISSIONER FOR SERICULTURE
DEVELOPMENT AND
DIRECTOR OF SERICULTURE
GOVERNMENT OF KARNATAKA
5TH FLOOR, M.S.BUILDING
DR. AMBEDKAR VEEDHI
BANGALORE-560 001
2
3. DIRECTOR
KARNATAKA STATE SERICULTURE
RESEARCH AND DEVELOPMENT
INSTITUTE, THALAGATTAPURA,
KANAKAPURA ROAD
BANGALORE-560 062
4. S. KRISHNA KUMAR, IAS (Retd.)
AGED ABOUT 62 YEARS
FORMERLY ADVISOR TO GOVERNOR OF
KARNATAKA, R/AT NO 118,
7TH CROSS, RMV II STAGE,
BANGALORE-560 094
5. DR. C.S.PATIL
S/o LATE SHIVARUDRAPPA GOWDA
AGED 54 YEARS, SCIENTIST
D& HEAD, SILK WORM PATHOLOGY SECTION
K.S.S.R.D.I, THALAGATTAPURA
,
BANGALORE
6. DR.D.BONGALE
DIVISION CHIEF (MORICULTURE)
KARNATATA STATE SERICULTURE RESEARCH
& DEVELOPMENT INSTITUTE, KANAKAPURA ROAD
BANGALORE-560 062 ..RESPONDENTS
(BY SRI. JAGADEESH MUNDARAGI, AGA FOR R1 AND R2;
SRI.K.G.SHANTAPPA, ADVOCATE FOR R-3; SRI. M.S.
BHAGWATH, Sr. COUNSEL FOR SRI.K.N.JAYAPRAKASH,
ADVOCATE FOR R5; SRI. H.C. SHIVARAMU, ADVOCATE FOR R6)
,,
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS LEADING TO THE ISSUE OF GOVT. ORDER DT.
24.3.2008 OF THE R1 GOVERNMENT AT ANNEXURE M AND THE
NOTIFICATION DT. 17.5.2008 OF THE R2 AT ANNEXURE N
EXAMINE THEIR CORRECTNESS, AND SET THEM ASIDE
HOLDING THEM AS ILLEGAL, ARBITRARY AND MALAFIDE.
WP NO 15880 OF 2007
BETWEEN:
NARAYANA GOWDA
S/O LATE NAGE GOWDA
AGED ABOUT 50 YEARS
SCIENTIST, HEAD MULBERRY
AGRONOMY SECTION, MORICULTURE DIVISION
KARNATAKA STATE SERICULTURE
RESEARCH AND DEVELOPMENT INSTITUTE
THALAGATPURA,
BANGALORE -560 062 ... PETITIONER
(BY SRI. S V NARASIMHAN, ADVOCATE)
3
AND:
1. STATE OF KARNATAKA
REP BY ITS SECRETARY TO
GOVERNMENT
COMMERCE AND INDUSTRIES
DEPARTMENT AND THE CHAIRMAN,
GOVERNING COUNCIL
KSSSRDI, M.S.BUILDING
BANGALORE-01
2. THE COMMISSIONER
DEVELOPMENT AND DIRECTOR
SERICULTURE DEPARTMENT
AND THE CHAIRMAN,
FINANCE COMMITTEE,
KARNATAKA STATE SERICULTURE
RESEARCH AND DEVELOPMENT
INSTITUTE, THALAGHATPURA
BANGALORE-02 ... RESPONDENTS
(BY SRI.K.G.SHANTHAPPA, ADVOCATE FOR R2;
SRI.JAGADEESH MUNDARAGI, AGA FOR R1)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO CONSIDER THE CASE OF THE PETITIONER
FOR APPOINTMENT TO THE POST OF DIRECTOR IN THE R2
INSTITUTE PURSUANT TO THE NOTIFICATION DT. 16.7.2007
VIDE ANX-E, OF R2 AND TO APPOINT HIM TO THE SAID POST IN
CONSIDERATION OF HIS QUALIFICATION AND EXPERIENCE
AND WITH ALL CONSEQUENTIAL BENEFITS.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13.02.2012 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY THE COURT PASSED
THE FOLLOWING:
4
ORDER
Petitioner in WP No.8085/2008 is seeking for setting aside the Government Order No.CI 10 SLK 2006 dated 24.3.2008 passed by first respondent at Annexure-M and notification No.KSSRD/EST /AD/2/2008-09 dated 17.5.2008 issued by second respondent at Annexure-N with a direction to first respondent to appoint the petitioner as Director of Karnataka State Sericulture Research and Development Institute on the basis of the recommendations sent by the Selection Committee on 8.10.2001.
2. Petitioner in WP No.15880/2007 is seeking for Writ of Mandamus to respondents to consider his case for appointment to the post of Director in second respondent - Institute pursuant to notification No.KSSRDI:EST:AD:2:2007-08 dated 16.7.2007 Annexure-E and to appoint him to the said post with all consequential benefits.
3. Heard Sri P.S. Rajagopal, learned Senior counsel appearing on behalf of petitioner in WP 5 No.8085/2008, Sri.Jagadish Mundaragi, learned Additional Government Advocate, for respondents 1 & 2, Sri.K.G.Shanthappa, learned counsel appearing for respondent No.3- Institute, Sri M.S. Bhagwath, learned counsel appearing on behalf of respondent No.5 and Sri P.S. Manjunath, learned counsel appearing on behalf of respondent No.6 and Sri.S.V.Narasimhan, learned counsel appearing for petitioner in WP No.15880/2007. Perused the impugned orders, statement of objections filed by respondents as also the original files made available by the learned Government Advocate.
4. The grievance of the petitioner in this Writ Petition is: first respondent has yielded to pressures during the last few years in making appointment to the post of Director of Karnataka State Sericulture Research and Development Institute (hereinafter referred to as 'Institute' for the sake of brevity). According to the petitioner, the Cadre and Recruitment Regulations, 1997 (hereinafter referred to as `C & R-1997' for the sake of brevity) prescribed the age limit for the said post as 50 years and first respondent had issued a 6 notification on 23.2.2006 by continuing Dr.U.D.Bongale, sixth respondent herein as Director, ignoring the Rules, who functioned in that capacity from 3.5.2006 to 4.1.2007 and thereafter, one more notification dated 5.1.2007 came to be issued continuing him as Director of the Institute, which was questioned by one Dr.S.R.Katti in Writ Petition No.453/2007 and during the pendency of the Writ Petition, first respondent issued a notification dated 9.2.2007 amending the Rules by increasing the age limit for appointment to the post of Director as 55 years and this court by order dated 26.6.2007 allowed the Writ Petition with a direction to the first respondent to appoint a candidate as Director of the Institute in accordance with Rules; Writ Appeal No.461/2007 filed challenging said order was disposed of by a Division Bench of this Court on 14.6.2007 with a direction that regular appointment to the post of the Institute be made within four months.
5. Thereafter, first respondent issued its approval dated 26.6.2007 Annexure-E whereunder 7 amendment to the Rules came to be approved under which the age limit for the post of Director was prescribed as "below 53 years for internal candidates on the last date fixed for receipt of application"; pursuant thereto second respondent issued a notification dated 15.7.2007 Annexure-F calling for applications to fill up the post of the Director of the Institute to which petitioner and 14 others applied and selection committee selected the petitioner and recommended on 8.10.2007 to the first respondent to appoint the petitioner as Director of the Institute.
6. It is contended in the Writ Petition that on account of fifth respondent sending a representation to first respondent to increase the maximum age to 55 years, the first respondent withdrew the letter dated 9.2.2007 Annexure-B and letter dated 26.6.2007 Annexure-E by Government Order dated 24.3.2008 Annexure-M on the ground that same was not in accordance with resolution and accepted the resolution passed by the Institute in its 44th Governing Council meeting held on 18.12.2006 and thereby holding the 8 eligibility criteria for the internal candidates for the post of Director in the institute as "below 53 years as on the date on which the post of Director became vacant". Thereafter, the first respondent has called for applications for the post of Director in the Institute vide Notification dated 7.5.2008 Annexure-N. Hence, petitioner has questioned Annexure-M and Annexure-N in this Writ Petition by contending that once selection process has commenced it could not have been stalled or restarted by changing the rules of the Game.
7. Petitioner in WP No.15880/2007 has contended that he is possessing requisite qualification for being appointed to the post of Director of the Institute and he has not been called for the interview though four other candidates are called for interview and he would become over aged by next recruitment and contends he has completed Phd. in Sericulture and he is more suitable than any other candidates in the Department. On these grounds, he has sought for a Writ of Mandamus to consider his case for appointment to the post of Director.
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8. It is the contention of Sri P.S.Rajagopal, that pursuant to the amendment to the Rules being approved by the first respondent on 26.6.2007 notification dated 15.7.2007 Annexure-F came to be issued inviting applications for the post of Director of the Institute and petitioner submitted his application along with 14 other candidates and Selection Committee under the Chairmanship of then Vice Chancellor of the University of Agricultural Sciences, Bangalore scrutinised the applications and found that petitioner and three other candidates were eligible for the post as per the proceedings of the Selection committee dated 18.9.2007 Annexure-G. Pursuant to the said proceedings, petitioner was called for interview and name of the petitioner was recommended on 8.10.2007; and, on receipt of such recommendation first respondent ought to have accepted said recommendation by issuing appropriate orders appointing him; he submits it was not done since one of the candidate namely Dr.C.S.Patil, fifth respondent herein submitted a representation dated 26.11.2007 as 10 per Annexure-J requesting first respondent to increase the age limit for appointment to 55 years and sought for re-conducting of the interview and pursuant to the said representation, the first respondent called for comments from the Commissioner for Sericulture - second respondent who by communication dated 13.12.2007 Annexure-K recommended to the State Government to reject the representation of 5th respondent and further recommended to expedite the process of appointing Director to the Institute as per the recommendation already made. However, first respondent instead of issuing order of appointment, appointed one Dr.U.D.Bongale on adhoc basis until further orders which came to be set aside in WP No.453/2007 and affirmed in WA No.461/2007.
9. He contends that 3rd respondent-Institute is registered under the Karnataka Societies Registration Act, 1960 and the Memorandum of Association of the Institute would go to show that appointment of Director of third respondent-institute will be made by the Government under Clause 14 and 19A of the 11 Memorandum of Association and State Government is alone the appointing authority. He would contend that reason given by the first respondent to withdraw Annexure-B and Annexure-E was that it was not in consonance with resolution passed by the Governing Council of 3rd respondent-institute at its 44th meeting held on 18.12.1996. According to Sri P.S. Rajgopal, Governing Council's view is irrelevant and petitioner is not challenging the said approval dated 26.6.2007 Annexure-E and contends that under sub clause (4) of clause 10 of the Memorandum of Association of the 3rd respondent-Institute the Governing Council is having powers only to perform the functions as enumerated therein and the proceedings of the Governing council would have no bearing or impact on appointment of Director to the Institute is concerned, since the Government is the appointing authority. He would draw the attention of the Court to the note sheets of the Government produced at Annexure-N to contend that 5th respondent has no locus standi to question petitioner's appointment since he had participated in 12 the selection process and had acquiesced himself. He also contends that first respondent has issued Annexure-M at the instance and behest of the fifth respondent as could be seen from the notings in the order sheet and particularly the noting of the Advisor to the Governor at internal page 35 at paragraph 263 which would go to show that for the purposes of bringing fifth respondent within the zone of consideration, amendment already approved under Annexure-B dated 9.2.2007 has been withdrawn on 24.3.2008 vide Annexure-M.
10. He contends that Government having initiated selection process, could not have interdicted in the middle of selection process at the instance of fifth respondent by changing the rules of the game. He would further contend that exercise of power by Government for cancellation of selection cannot be arbitrary, but has to be reasonable. Merely because no indefeasible right is vested in a candidate, it does not mean that Government can cancel such process 13 arbitrarily. In support of his submission he relies upon the following judgments:
(1) (2008) 4 SCC 171 (2) (2006) 6 SCC 395 (3) (2008) 3 SCC 512 (4) (2000) 9 SCC 283 (5) (1993) 1 SCC 154 On these grounds he submits that Writ Petition be allowed and prayer sought for in the writ petition be granted.
11. Per contra, learned Addl. Government Advocate submits that under Rule 6 sub Rule (3)(b) of the KCS (General Recruitment) 1977, first anomaly committee formed to look into anomalies had in its meeting held on 06.11.2002 recommended for age relaxation for internal candidates by number of years the applicant held the post or five years, whichever is less. The second anomaly committee vide resolution dated 09.08.2006 and 22.09.2006 proposed for amendment to the existing C & R Rules 1987 as "below 50 years for external candidates and below 53 years for 14 internal candidates". Based on requests from Senior Scientists and findings of the anomaly committee, the institute at its 44th Special Governing Council Meeting held on 18.12.2006, resolved age relaxation as 53 years on the date on which the vacancy for the post of Director accrued in case of internal candidates. This resolution which was forwarded to the Government for approval came to be modified by fixing the maximum age limit as 55 years on the date the post became vacant in respect of internal candidates as per approval dated 09.02.2007- Annexure-B. However, the State at the instance of some scientists including the petitioner re-fixed the age limit as 53 years instead of 55 years and the age to be reckoned was fixed as on the last date fixed for receipt of applications instead of the date on which the post of Director became vacant by order dated 26.6.2007, Annexure-E. It was noticed by the Government that as per 44th Special Governing Council Resolution of the Institute dated 18.12.2006 which was followed by notification dated 9.2.2007 (Annexure-B), all senior Scientists including the petitioner were eligible to 15 apply for the post of Director and no injustice was being caused to anyone. Hence, it was found by the State Government that there was no justification for the petitioner to approach the State by his representation dated 22.2.2007 to reduce the age limit from 55 years to 53 years and it was found that to eliminate competition, this was done. It is also stated that after the Selection Committee made its recommendations after re- amendment to Rules as approved by the Government on 26.6.2007 Annexure-E when the state was under
Governor's Rule, a detailed examination of factual aspects was made and after securing the opinion from the Law department and on noticing serious lapses in the process of selection decided to withdraw the letters dated 9.2.2007 and 26.6.2007 and approved the resolution dated 18.12.2006 passed by the institute at its 44th Special Governing Council Meeting. He contends that Governing Council is empowered to act and amend the rules and regulations as enumerated under Rule 10 of the Institute's Rules and Regulations.
He contends that Governing Council is vested with such 16 power and defends the impugned orders. He would contend that pursuant to Government Order dated 28.3.2008 Annexure-M notification dated 17.5.2008 Annexure-N inviting applications have been issued calling for filling the post of Director of the Institute and interview was held on 14.7.2008 and all the six candidates who had applied, participated in the interview, including the petitioner herein and fair opportunity has been given to all the eligible candidates and as such petitioner cannot be construed as aggrieved person and none of his legal rights are violated; other contentions raised in the Writ Petition contrary to facts have been denied.
12. Mr. Bhagwath contends that third respondent institute is registered under the provisions of Karnataka Societies Registration Act, 1960 and Memorandum of Association and Rules, Regulations of the institute has been duly approved by the Government. He contends under sub-rules (2) & (3) of Rule 10, the Governing Council of the Institute is empowered to add, alter or amend the Rules and Regulations and bye-laws of the 17 institute subject to approval by the Government. He contends in exercise of such power Rules, Regulations and bye-laws of the institute known as "Karnataka State Sericulture Research and Development Institute Bye-
laws, 1981" came to be made and bye-law 23 provides that only approval of the proposed amendment to any Rules or bye-laws by the Governing Council, shall be incorporated in the respective rules. He contends that Regulations known as "The Karnataka State Sericulture Research and Development Institute (Cadre and Recruitment) Rules, 1981" was framed which provided for mode of filling up of various posts in the institute. He contends revised recruitment Rules known as "The Karnataka State Sericulture Research and Development Institute (Cadre and Recruitment) Regulations, 1997"
came into force from 1998 in the place of existing rules and as per the said Rules the age limit prescribed for the post of Director in the said Institute for Direct recruitment was 50 years and by virtue of direction given by this court in Writ Petition No.6623/2001 dated 01.03.2006 to consider the representation dated 18 5.3.2000 and 06.03.2000 submitted by fifth respondent and others in accordance with law, it came to be referred to anomaly committee. Pursuant to the directions issued by this court, the anomaly committee recommended for relaxation of age limit as "below 50 years for external candidates and below 53 years for internal candidates". He contends that after reviewing the C & R Rules, and considering the recommendations made by the anomaly committee 3rd respondent-
institute proposed for amending the Rule with regard to fixing the age. As such the Governing Council in its 44th meeting held on 18.12.2006 resolved to amend the C & R 1997 and accordingly resolved to amend the Rules as "below 53 years on the date on which the vacancy of the post of Director accrued in respect of the internal candidates only" as per Annexure-R2. He contends when the said resolution was sent for approval to the State Government, it was modified as "Below 55 years as on the date on which the post of Director became vacant in respect of internal candidates only" as per Annexure-R3. At this juncture, petitioner 19 submitted a representation on 22.2.2007 and 28.2.2007 to fix the age to "53 years" for internal candidates as on the last date fixed for receipt of the applications. The Commissioner for Sericulture forwarded the petitioner's representation to the Government for consideration. The State Government on 26.6.2007 accepted the recommendation of the Commissioner of Sericulture and approved C & R - 1997 by fixing the age limit as below 53 years as on the last date for receipt of applications and pursuant to the same notification was issued and applications were called for, received, proceedings were held by the selection committee and made its recommendations as per Annexure-G. He contends that on account of several Scientists being excluded by virtue of reducing the age as also the date on which vacancy would arise, representations came to be submitted to the Government and first respondent -
Government after obtaining necessary opinion, withdrew the notification dated 09.02.2007 and 26.6.2007 Annexure- B and E and approved the resolution dated 18.12.2006 passed by the Governing 20 Council at its 44th meeting by order dated 24.03.2008 which is impugned in the present writ petition. He submits that pursuant to the impugned order, notification has been issued and applications were called for from eligible candidates and the selection process is now complete in which the petitioner has also participated and results have not been announced by virtue of the interim order passed by this court on 11.7.2008 not to announce the result pending disposal of the Writ Petition. He contends that petitioner having participated in the selection process is estopped from challenging the impugned notifications. He would further contend that on account of petitioner not challenging the resolution dated 18.12.2006, the order of the Government dated 24.3.2008 Annexure-M is only an order granting approval of the resolution and as such Writ Petition itself is not maintainable. He would contend that the State Government has no authority or jurisdiction to modify or change the authority of the institution which is a society registered under the Societies Registration Act and as such the notification 21 dated 9.2.2007 and 26.6.2007 vide Annexures B and E being contrary to the resolution of the Governing Council dated 18.12.2006 is illegal and void and contends that impugned order is valid and legal. It is also submitted that as per clause 19A of the Memorandum of Regulations which is a non obstante clause would apply only to Rule 13 to 19. He contends that in exercise of the power conferred under bye-law 10(3), Cadre and Recruitment Rules have been formulated which cannot be found fault with. He submits that Government while withdrawing Annexures B and E has assigned reasons and particularly in the note at paragraph 244 vide Annexure-R13 it has specifically stated that resolution passed by the Institute at its 44th Governing Council Meeting is final and binding and as such he contends that the impugned order dated 24.3.2008 at Annexure-M does not call for interference.
13. In support of his contention he relies upon the following judgments:
(1) 2009) 3 SCC 227 22 (2) (1997 6 SCC 614 (3) (2003 9 SCC 529 (4) (2007 8 SCC 100 (5) Order dated 15.10.2007 passed in WA No.15098/2011.
14. Sri K.G. Shanthappa, learned counsel appearing for third respondent institute would contend that prior to 1998 Rules under old Rules i.e. 1980, the age limit prescribed for the post of Director was 50 years and pursuant to order passed by this court in Writ Petition No.6623/2001 anomaly committee meeting was convened, which prescribed age limit as 55 years as per recommendations dated 06.11.2002. He would contend that post of Director became vacant as on 24.2.2006 and second anomaly committee proposed amendments to existing C & R Rules-1997 and it recommended the age limit as 60 years for external candidates and 53 years for internal candidates. He would contend that on account of some Senior Scientists of the Institute making request for relaxation of the age limit for five years, 44th Special Governing 23 Council Meeting of the Institute was convened on 18.2.2006 and it was resolved that age limit for the post of 'Director' as "below 53 years on the date on which the vacancy of the post of Director accrued in respect of internal candidates only". The State while considering the said resolution sent for approval, modified the 44th Governing Council Resolution to the maximum age limit as below 55 years as on the date on which post of Director became vacant, for wider competition in selection of merit candidates for the said post. Thereafter, within a span of four months on the basis of the representations dated 22.2.2007 submitted by few scientists of the Institute, including the petitioner, the age limit was again modified by reducing and fixing the age limit as "below 53 years on the last date fixed for receipt of the applications" as per approval letter dated 26.6.2007 Annexure-E issued by the first respondent. By virtue of such approval order issued by the State Government, the last date of receipt of application was to be reckoned for the purposes of maximum age limit and not the date on which the post 24 became vacant and he contends by virtue of such amendment, which was made without following the prescribed procedure, all senior scientists including the fifth respondent became ineligible to apply and thus deprived from applying for the post of Director. It is stated by the learned counsel that on pressure being exerted by the petitioner to issue appointment order based on the re-amended C & R Rules dated 26.6.2007- Annexure-E, the file came to be referred by the State Government for legal opinion and thereafter, the representation of fifth respondent also came to be considered and on detailed factual examination followed by securing legal opinion from the legal Department the Government decided to withdraw the orders/approvals Annexure-B & E since it was found to be contrary to legal position and as such no infirmity can be found in the impugned order Annexure-M. He contends that as on 24.3.2008 namely the date of impugned notification, petitioner, fifth respondent and Dr.Bongale were eligible. He would contend if the age limit is taken as 53 years and cut off date as if last date of receipt of 25 application is taken then only four candidates would be eligible. Further, he contends if it is taken as "date on which vacancy arose" all will become eligible. Thus, he contends there is wider participation and no one is deprived of not being considered by virtue of impugned orders.
15. He contends that two previous Ministers have taken different views as found at paragraph 197 of the note sheet at Annexure-N and as such it was referred to legal department who on scrutiny of entire factual position have opined that non approval of the resolution passed at the 44th Special Governing Council Meeting of 3rd respondent-institute is incorrect and as such the Government has issued the impugned order dated 24.3.2008 Annexure-M withdrawing earlier approval orders dated 9.2.2007 and 26.6.2007 Annexure-B & E which is within the power of the Government.
16. He contends that under clause 10(2) of the Rules and Regulations of the Institute, 1980 the Governing Council has power to add, alter or abridge 26 any of the objects of the Institute subject to approval by Government. He submits that if decisions contain reasons, it is sufficient and contends that decision making process alone can be gone into by Courts and not the decision. In support of his submission he has relied upon the following judgments:
(1) AIR 2010 SC 2794 (2) (2008) 10 SCC 246
17. Sri.P.S.Manjunath, appearing on behalf of sixth respondent would contend that first respondent found that the bye-law amended by the Institute which is a Society Registered Under the Societies Registration Act, are invalid and without jurisdiction and as such, issued order dated 24.3.2008 Annexure-M withdrawing its earlier notifications dated 9.2.2007 and 26.7.2007 Annexures B & E respectively. He contends that if Government Order dated 24.3.2008 is quashed earlier notifications dated 9.2.2007 and 26.7.2007 would get revived which would mean for internal candidates, the age would be 53 years as on the last date prescribed for 27 the receipt of applications. He would contend the only beneficiary of this amendment made by the Government under the impugned order is 5th respondent and further contends that entire exercise of the petitioner appears to be for the purpose of excluding competition from respondents 5 & 6. He submits that sixth respondent is required to be considered in view of the orders of this court in Writ Petition No. 16041/2007. He also submits that petitioner has to demonstrate that bye-laws of the Institute can be amended by a simple resolution of the Institute and it need not follow the procedure prescribed u/s.10 of Karnataka Societies Registration Act read with Rule 29 of the Rules.
18. In reply, Sri.P.S.Rajgopal would contend that Rule 10, 12 to 14, 17 and 20 along with 15, 18 and 19 of Memorandum of Association, Governing Council has no role to play in so far as appointment of Director is concerned. He would submit that under Rule 10(3) there is no general power to the Governing Council since under clause (g) of clause 10(4) power was given to Governing Council and later on withdrawn with effect 28 from 19.10.2000. He contends that notwithstanding anything contained in Rules 13 to 19 of Memorandum of Association, State Government is the appointing authority under Rule 19A. He contends that Cadre and Recruitment Rules is not at all applicable since Rule 14 is not covered under Rule 19A. In support of this submission he relies upon the judgment of this court in the case of Dr.Giridhar Kamalapurkar Vs Dr.Venugopal Ram Rao and others reported in 2001 (3) KLJ 467. He contends if the bye-law provides for the Government to accept or reject the amendment it would also mean that it has the power to amend the recommendations or the decision of the Governing Council. Thus impugned order suffers from vice of ultravires of Rules and Regulations and as such it has to be set aside. He contends that no administrative order can be retrospective and in support of this proposition, he relies upon the judgment of Govind Prasad Vs R.G.Parsad and others reported in (1994) 1 SCC 437 - para 11. He contends, if it has prospective effect selection done pursuant to Annexure-B & E will hold 29 good and only Government Order has to be issued by the first respondent. In support of this proposition, he relies upon the judgment of the Hon'ble Apex court in the case of Sonia Vs Oriental Insurance Co. Ltd., and others reported in (2007) 10 SCC 627 para 10, 11 &
12. He would also contend that petitioner's participation in the subsequent interview does not wipe out his right and he submits that if he has participated in the interview without prejudice to his right as seen from the records filed in the present Writ Petition and draws the attention of the court to the definition of the word 'without prejudice' as defined in Blacks Law Dictionary 8th Edition at page 1632. He would also contend that once the fifth respondent has participated by applying as a candidate in earlier round of selection he is estopped from contending contrary. And in support of his submission he relies upon the judgment of the Hon'ble apex court in the case of University of Cochin Vs N.S.Kanjoonjamma and others (V.Vasudevan Vs University of Cochin and others reported in (1997) 4 SCC 426. With regard to the contention raised on cut 30 off date that it cannot be questioned at all, he relies upon the judgment of the Hon'ble Apex court in the case of Dr.Ami Lal Bhat Vs State of Rajasthan and others reported in (1997) 6 SCC 614 para 6.
19. In reply to Sri K.G. Shanthappa's arguments, Sri.Rajgopal, Senior Advocate contends the then Director of the Institute has recommended to the first respondent to continue the process of appointment as per Annexure-K dated 13.12.2007 and as such he cannot be allowed to argue against his own recommendations. He relies upon the judgment of the Hon'ble apex court in the case of East Coast Railway and Anr Vs Mahadev Appa Rao and others with K.Surekha Vs Mahadev Appa Rao and others reported in AIR 2010 SC 2794. On these grounds he prays for allowing the Writ Petition.
20. Having heard the learned advocates appearing for the parties, I am of the considered view that following points would arise for my consideration: 31
(1) Whether petitioner in W.P. No. 15880/2007 is entitled for any relief as sought for? (2) Whether the appointment of Director to the third respondent Institute is governed by the Cadre and Recruitment Regulations, 1997 or is it by any other Rules/Regulations?
OR Whether selection and appointment of Director to third respondent -Institute is to be made by the State Government alone?
(3) Whether petitioner has any indefeasible right to seek for being appointed as the Director of the third respondent Institute?
(4) Whether the impugned order dated
24.3.2008 Annexure-M is liable to be
quashed or set aside or to be affirmed?
(5) What order?
21. Before proceeding to delve upon the points formulated herein above it would be necessary to narrate the background of the case since it has a past history which has led to present litigation.
BACKGROUND OF THE CASE:
22. Third respondent Institute was initially established under the name "Karnataka State 32 Sericulture Development Institute" on 10.4.1980 and it was registered as a Society under the provisions of Karnataka Societies Registration Act, 1960. The name of the Institute came to be changed to the present one i.e. "Karnataka State Sericulture Research and Development Institute" (hereinafter referred to as "Institute" for brevity) with effect from 19.1.1994.
23. Fifth respondent herein and two other scientists had approached this Court by filing Writ Petition No.6632/2001 seeking for quashing of the age limit of 50 years prescribed for Selection to the post of Director under The Karnataka State Sericulture Research and Development Institute Cadre and Recruitment Regulations 1997 (hereinafter referred to as "C & R -1997"). This Court, by order dated 1.3.2006 disposed off the said Writ Petition directing that anomaly committee constituted by the Institute shall consider the representations dated 5.3.2000 and 6.3.2000 submitted by fifth respondent and others in accordance with law. The said anomaly committee held its proceedings on 09.08.2006 and 22.9.2006 and 33 recommended for relaxation of age limit as "Below 50 years for external candidates and below 53 years for internal candidates" vide Annexure-R1.
24. The Governing Council of the third respondent Institute at its meeting held on 18.12.2006 passed a resolution amending C & R -1997 whereby the age-limit for the post of Director was resolved to be prescribed as "Below 53 years on the date on which vacancy of the post of Director accrued in respect of internal candidates".
25. The said resolution was forwarded by the Institute for approval of the State Government. The State Government by its communication dated 9.2.2007 (Annexure-B to the Writ Petition No.8085/2008 and Annexure-R3 to the statement of objections filed by fifth respondent) approved the amendment as "below 55 years as on the date on which the post of Director became vacant in respect of internal candidates only". Petitioner in Writ Petition No.8085/2008 made a representation on 22.2.2007 requesting the 34 Government to fix the age at 53 years for internal candidates and cut off date for the age limit as last date fixed in the notification for receipt of the applications as per Annexure-R8. Likewise, some of the scientists of the institute had also made representations to the Government to the same effect. Said representation came to be forwarded by the Government to the third respondent institute by communication dated 28.2.2007 Annexure-R9. The Director intimated first respondent Government by communication dated 31.5.2007 Annexure-R6 to reconsider and give approval for fixing maximum age limit for in-service candidates from 55 years to 53 years to the post of Director, so as to take further action to fill up the post of Director of third respondent institute. First respondent accepted the said recommendation/request made by the Director of third respondent Institute and conveyed its approval for amendment of the C & R-1997, by order dated 26.06.2007, Annexure-E. Whereunder the age limit for the post of Director was fixed as "below 53 years for 35 internal candidates on the last date fixed for receipt of applications".
26. During this interregnum period i.e., after the anomaly committee's recommendation and before approval of resolution dated 18.12.2006 by the Government on 09.02.2007 one Dr.S.R.Katti, who was working as a Scientist-D in third respondent Institute had approached this court seeking for quashing of the notification dated 05.01.2007, whereunder the services of Dr.U.D.Bongale who had been placed as incharge Director of the third respondent Institute had been continued as Director till regular Director was appointed by the Selection Committee. Said notification came to be set aside by this Court by order dated 27.2.2007 and it was up held by Division Bench by Judgment dated 14.06.2007 in WA No.461/2007 directing regular appointment to be made to the post of Director within a period of four months. Government was also permitted by Division Bench to post any competent person to hold the charge of the post of Director until regular appointment was made.
36
27. Pursuant to the order of approval dated 26.06.2007 (Annexure-E) granted by the Government third respondent issued a notification dated 15.07.2007 Annexure-F inviting applications for the post of Director to 3rd respondent Institute, whereunder the age limit was fixed as "Below 53 years for internal candidates on the last date fixed for receipt of applications". In all, 15 applications were received pursuant to the said notification. Selection Committee held its meeting on 18.09.2007, considered the applications received. Selection Committee found that as per the qualifications prescribed under the notification only four persons were eligible to be considered for the said post, which included the petitioner amongst other three candidates. In the said meeting, the committee decided to meet again and to call for the interview of the eligible candidates and to take a final decision and to recommend from amongst them a candidate for appointment to the post of Director. Petitioner was informed of the proposed interview to be held on 8.10.2007 at 3.00 p.m. by communication dated 37 28.9.2007 Annexure-H. Committee held its meeting on 8.10.2007 at 3.00 p.m. and after interviewing the candidates, recommended to the State Government the candidature of the petitioner (in W.P.8085/2008) to the post of Director of 3rd respondent institute. The said recommendation was forwarded by the Chairman of the Selection Committee to the first respondent Government intimating the out come of the selection process. Fifth respondent herein submitted a representation dated 26.11.2007 Annexure-R10 to the first respondent Government seeking cancellation of said recommendation of petitioner with a prayer that age relaxation order issued by the Government dated 26.06.2007 be set aside and to accept the Government Order dated 09.02.2007 whereunder age limit upto 55 years had been fixed and seeking for issuance of fresh notification. The first respondent Government after several deliberations, confabulations and after obtaining the opinion from the Law Department resolved to withdraw the approval order dated 09.02.2007 (Annexure-B) and 26.06.2007 (Annexure-E) and granted 38 approval of the amendment as per the resolution passed by the Governing Council of the third respondent Institute at its 44th meeting held on 18.12.2006 by order dated 24.3.2008 Annexure-M and thereby approving the resolution dated 18.12.2006 passed by the third respondent Institute whereunder it had been resolved to fix the age limit for the post of Director as "below 53 years on the date on which vacancy arises for internal candidates".
28. Pursuant to the said order Annexure-M issued by the Government, notification dated 17.5.2008 Annexure-N was issued inviting applications for the post of Director of the third respondent Institute. At that point of time petitioner also applied to the post of Director of the Institute and simultaneously challenged the Government order dated. 24.03.2008 Annexure-M and Notification dated. 17.05.2008 Annexure-N in the present Writ Petition No.8085/2008 on 10.06.2008.
29. This Court by order dated 11.07.2008 has passed an interim order permitting the Selection 39 Committee to interview all the candidates and not to announce the results pending disposal of the present Writ Petition and said order is in force till date.
In this factual background now let me examine the points formulated hereinabove.
RE POINT NO.1:
30. Petitioner in Writ Petition No.15880/2007 has sought for a mandamus to direct the respondents to consider his case for appointment to the post of Director of the 3rd respondent- Institute pursuant to notification dated 15.7.2007 - Annexure-F and to appoint him to the said post, contending interalia that he is possessing requisite qualification and he is the only candidate out of other three candidates who were called for interview who has completed Ph.d in Sericulture and as such, he contends action of the Selection Committee in not issuing interview letter to the petitioner though the date of interview was fixed as 8.10.2007 at 3.00 p.m. is erroneous and bad in law.
40
31. Petitioner was appointed as Scientist-C and was working in Agroneum section as Scientist-C. Notification dated 15.7.2007 came to be issued inviting applications for the post of Director, whereunder qualification that has been prescribed is:
"15 (fifteen) years of Post Doctoral Research Experience as evidenced by Research Publication, of which five (5) years in any branch of Sericulture in the grade of Scientist-D and above or equivalent"
This is a pre-requisite qualification for considering application for the post of Director. Petitioner applied for the said post on 24.08.2007. The Selection Committee has met on 18.09.2007 and in the proceedings recorded by it as seen from the original records said committee has considered all the 15 applications received by it including that of the petitioner and has found that petitioner is not eligible for being considered on the ground that he is Scientist- C and has not worked as Scientist-D for a period of five years. At this juncture it would be necessary to notice that an applicant has a right to be considered and mere inclusion of his name within the zone of consideration 41 would not clothe him with a right to seek appointment order being issued in his favour even though he does not fulfill the eligibility criteria fixed. There is no vested right of the petitioner which has been violated. In that view of the matter, it cannot be held that non-issuance of letter of interview by the Selection Committee to be contrary to the C & R - 1997 or there being violation of any other provisions. It is also to be noticed that pursuant to the proceedings of the Selection Committee held on 08.10.2007 four persons were interviewed and name of Dr.J. Sukumar (petitioner in Writ petition 8085/2008) had been recommended to the Government for the post of Director of the third respondent Institute. Petitioner has not taken any steps to challenge the said recommendation and even otherwise the first respondent Government by order dated 24.3.2008 has already withdrawn the orders dated 09.02.2007 and 26.06.2007 by virtue of which Notification dated 15.07.2007 Annexure-F had been issued and thereafter the third respondent Institute has issued fresh notification dated 17.05.2008 Annexure-N 42 calling for applications from eligible candidates and the selection committee has also met thereafter and had held the interview on 14.07.2008, which action/orders have also not been challenged by the petitioner and as such, petitioner is not entitled for the relief sought for in the Writ Petition. Accordingly, Writ Petition 15880/2007 stands rejected.
RE POINT NO.2:
32. Notification Annexure-N dated 17.5.2008 was issued calling for applications for recruitment to the post of Director in the grade of SCIENTIST - 'F'. The main thrust of the argument advanced by the learned counsel for petitioner in this regard is: first respondent Government by order dated 26.06.2007 Annexure-E had approved the C & R - 1997 of 3rd respondent institute, whereunder age limit fixed was "below 53 years for internal candidates on the last date fixed for receipt of applications", and for purpose of selecting the candidates a Selection Committee had been constituted and pursuant to same a notification dated 15.7.2007 Annexure-F had been issued calling for applications 43 pursuant to which interviews were held and petitioner's name was recommended by the said Selection Committee. When the said factual matrix existed, the impugned order dated 24.3.2008 Annexure-M has been passed at the behest of fifth respondent leading to issuance of fresh notification dated 17.05.2008 and thereby annulling earlier selection which is illegal.
Petitioner contends that third respondent institute has been registered under the Societies Registration Act and appointment to the post of Director will have to be made by the Government only under clause 14 and clause 19A of the Memorandum of Association and as such, the appointing authority is only the Government and none-else. He contends that Cadre and Recruitment Regulations-1997 is not at all applicable for selection of Director since Rule 19A of the Memorandum of Association is in super-session of other Rules as stated in the Memorandum of Association and as such the Institute or the Selection Committee has no power to appoint Director of 3rd respondent Institute and it is the State Government alone which has right to select and 44 appoint. He contends that Rule 14 of Memorandum of Association is applicable and Rule 20 of MOA would clearly go to show that only persons appointed under Rule 15, 18 and 19 are governed by such bye laws framed by Governing Council and Director has been excluded from its purview and as such C&R 1997 is inapplicable in so far as appointment of Director to 3rd respondent institute is concerned.
33. The Memorandum of Association (hereinafter referred to as MOA for brevity) and Cadre Recruitment Regulations have been produced by the petitioner along with a memo dated 03.01.2011. As seen from the said memo, proceedings of the Government of Karnataka and the order No.CI 166 SLP 80, Bangalore dated 7th March 1981 is also appended thereto would go to show that an order has been passed by the Government of Karnataka approving the Memorandum of Association of 3rd respondent Institute. Thus, there cannot be any dispute with regard to the approval granted by the first respondent - State approving the Memorandum of Association of third respondent institute. The Rules 45 and Regulations of the third respondent Institute is part and parcel of said Memorandum of Association.
34. Under clause 5 of the Memorandum of Association, administration of the Institute vests with the Governing Council.
35. A perusal of clause 10(4)(b) of MOA would go to show that Governing Council is empowered to make bye-laws as deemed essential for the regulation of the business of the Institute.
36. As already noted hereinabove third respondent Institute has framed Cadre & Recruitment Regulations known as "The Karnataka State Sericulture Research & Development Institute Cadre and Recruitment Regulations 1991, which came to be revised in the year 1997 and duly approved by the Government vide order No.CI 120 SLS 98 DATED 8.1.1998 and (C & R-1997). The said C & R- 1997 has been made applicable to all the employees of the Institute appointed in accordance with the said Regulations.
46Rule 2 of C & R-1997 defines various words occurring in the Cadre and Recruitment Regulations, 1997. Some of the definitions which are relevant for the purposes of this case are enumerated hereinbelow.
2. DEFINITIONS:
In these Regulations, unless the context otherwise requires,
6) 'Director' means the Director of the Institute.
8) 'Direct Recruitment' -means appointment against a post sanctioned for a period exceeding three years in accordance with these regulations otherwise than by promotions or transfer from any Civil Service of Government or Local or other authorities but shall not include appointment made on contract basis.
37. As per Annexure-I of the C & R 1997 the existing cadre strength and recommended, classification of posts of the Institute are specified therein. As per Annexure-II of C&R
-1997 the mode of Recruitment, qualification, age limit have been prescribed.
38. Rule 13 prescribes for the purpose of Direct Recruitment, there shall be a Selection Committee and sub Rule (1) of Rule 13 prescribes a committee comprising of the persons referred to therein is to be constituted when the post of a Director of the Institute 47 is to be filled up. As per Annexure-II to the said C & R - 1997 the qualifications for the post of Director has been specified at item No.1. The age limit prescribed thereunder was 50 years. Which has been subsequently amended by the third respondent-Institute and which came to approved by Government with certain modification and thereafter Government has retraced its steps and restored the approval made by 44th Governing Council Meeting of third respondent-Institute. It is this Rule in C & R -1997 which is subject matter of challenge in this writ petition and pursuant notifications issued thereunder.
39. In order to examine the contentions raised it would be necessary to note certain facts. Third respondent Institute has been registered under the Karnataka Societies Registration Act, 1960 and it is evidenced from the certificate of Registration dated. 7-3- 1981 filed along with a memo dated 3.1.2011. The first respondent State has by order dated 7.3.1981 approved the Memorandum of Association of third respondent Institute for its adoption so as to commence its activities 48 vide order NO.166 SLP 80, BANGALORE, DATED THE 7TH MARCH, 1981. As noted herein above under clause 5 of the Memorandum of Association, the administration of the 3rd respondent Institute vests with the Governing Council and the composition of the Governing Council is as under:
1) The Secretary to Government, Commerce & Industries department - Chairman
2) The Secretary to Government, Finance Department - Member
3. The Director of Sericulture - Member
4. Professor of Zoology of a University established by law in Karnataka to be nominated by Government in consultation with the Chancellor - Member
5. The Director, Central Sericultural Research And Training Institute, Mysore - Member
6. The Director, Karnataka State Sericulture Development Institute, Bangalore - Member Secretary
40. The Memorandum of Association and the Rules and Regulations of the third respondent Institute is part of the said Registration made under the 49 Karnataka Societies Registration Act. The powers and functions of the Governing Council of third respondent institute is regulated by Rule 10 of the Rules and Regulations. Under sub- Rule (3) of Rule 10 the Governing Council has the power to add, alter or amend the rules and regulations and bye laws of the institute consistent with the institute's Registration Act (which should have been "with the Societies Registration Act") and subject to approval of the Government under Rule 10(4)(6) Governing Council is empowered to make bye-
laws as deemed essential for regulation of the business of the institute. Rule 14 of MOA empowers the Government to appoint a Director to the 3rd respondent
- Institute which will be for a period of 5 years. Rule 19A provides for the State Government to appoint or recommend the appointment of the Director and other staff by direct recruitment or by deputation of officers of the State Government, notwithstanding anything contained in Rules 13 to 19 of MOA.
41. In the background of these provisions it is to be examined whether it is the Government alone which 50 is empowered to appoint a Director of the institute or it is the Selection Committee which constituted under Regulation 13 of C & R-1997 which is empowered to select and send its recommendation to the Government for making appointment. Hence Rule 14 and 19A of MOA are extracted, which reads as under:
14 - Appointment of Director:
1. The appointment of Director including first Director always be made by the Government and such appointment shall be for a period of five years.
2. The Director shall be in overall administrative control and management of the Institute.
19A - Powers of the State Government with regard to appointment of staff of the Institute:
Notwithstanding anything contained in Rules 13 to 19, the State Government shall have the authority to appoint or recommend the appointment of the Director and other staff, by direct recruitment or deputation of officers of the State Government as the State Government may consider it appropriate from time to time.
42. In exercise of the Powers Conferred by Rule 10(3) and 10(4)(b) of the MOA of 3rd respondent Institute, bye-laws of the institute has been framed 51 whereunder constitution of Selection Committee is provided amongst other provisions. Under clause 2(k) of the bye laws rules have been defined to mean and include the Rules and Regulations of the institute. Clause 9 (1) provides for prescribing Age, experience and other qualifications for appointment to all posts in the institute. Clause 2(g) of the Bye-laws defines as to who is the "Controlling Authority" in relation to posts in Classes I and II, it would be Governing Council, and in relation to posts in classes III and IV the Director of the institute as noted hereinabove. Clause 10 of the bye laws provides for constitution of a selection committee for appointment. Under clause 10(1) Selection Committee has to make recommendations to Governing Council/Director for appointment of various posts. The said clause reads as under:
1. There shall be a Selection Committee to make recommendations to the Governing Council/ Director for appointments to various posts. The constitutions of the committee shall be noted in the Cadre and Recruitment Rules.
(emphasis supplied by me) 52
43. By virtue of same third respondent-institute has framed C & R Rules, 1997 as already noted above, which interalia provides for filling up of various posts in the third respondent institute. It is to be noticed at this juncture contention of Sri.Rajagopal, learned Senior Counsel appearing for the petitioner that Government alone is the appointing authority even if taken into consideration for a moment, the C & R -1997 which has been duly approved by the Government by its order No.CI 120 SLS 98 Dated 18.04.98 provides for Selection of Director by a Selection Committee. Under the said C & R -1997 as already noted hereinabove, Selection Committee consisting of five persons is provided for under Rule 13. Likewise for appointment to various other posts in the third respondent -institute under sub Rule (2) to (5) of Rule 13 the composition of the Selection Committee has been enumerated. As per Annexure-II to the said Regulations it has been specified that selection to the post of 'Director' shall be by `direct selection' and other requisite qualifications has also been specified thereunder.
53
44. A combined reading of the above provisions would clearly go to show that under the Memorandum of Association, Rules and Regulations and bye laws of the institute as also C & R - 1997 which is duly approved by Government the selection to the post of Director is to be made by a Selection Committee which recommends to Government for being approved by it. As such clause 14 or clause 19A of MOA cannot be read in isolation and a harmonious reading has to be done to effectuate the purpose for which it is framed and not to negate it. It would also emerge that under the Rules and Regulations as well as bye laws, the Government has been designated as the appointing authority which has to make appointments on the basis of the recommendations of the Selection Committee constituted under C & R Rules, 1997 in so far as posts of Class I and II. The mode of recruitment for the post of Director has been specified would be by direct selection. Admittedly Memorandum of Association and Rules and Regulations of the institute have been registered under the Societies Registration Act. In fact 54 C & R - 1997 framed by the third respondent-institute have also been duly approved by the Government and there cannot be any qualms on this issue.
45. Under Rule 13(1) of C & R-1997, the post of Director is required to be filled up by a direct recruitment by a selection committee comprising of the members as stated therein namely;
(i) The Vice Chancellor, University of Agricultural Sciences In Karnataka ...Chairman
(ii) The Commissioner & Secretary to Government of Karnataka, Commerce & Industries Dept. ...Member
3. The Commissioner for Sericulture Development & Director of Sericulture, Government of Karnataka. ...Member
4. The Director of any Sericulture Research Institute. ...Member
5. A Senior Professor of Zoology/Botany/ Entomology/Sericulture of any University in Karnataka. ...Member The Chairman of the said committee is the Vice Chancellor first above named and others are members of the said selection committee. Under Rule 15, the 55 selection committee would interview the eligible candidates or select them in accordance with the procedure indicated in Rule 10 and thereafter such selection committee under Rule 16(1) will prepare in the order of merit a list of candidates eligible for appointment to the cadre or post. Under regulation 17, the appointing authority would appoint the candidates whose names are included in the list specified in Regulation 16(1) and 16(2). Thus, the area within which the selection committee operates is for the limited purpose of selecting a candidate from out of the eligible candidates interviewed and thereafter prepare in the order of merit a list of candidates eligible for appointment to the cadre or post. The selection committee is not the appointing authority. The 'appointing authority' is the State Government as defined under Rule 2 of C & R -1997 insofar as Director is concerned. Rule 4 provides for method of recruitment and qualification in relation to each post or categories of posts as specified in Annexure-II to the said Rules. As per Annexure-II, the mode of recruitment to the post of 56 Director is by 'Direct Selection' and the appointing authority empowered to appoint Director of 3rd respondent Institute is Government of Karnataka as prescribed thereunder. Thus, it can be noticed that selection committee and appointing authority are two separate and distinct entities and it cannot be understood that either selection committee is appointing the candidates selected by it or the appointing authority is selecting the candidates. In the instant case, when the facts are examined in the background of these Rules, it can be noticed that neither the selection committee has made any attempts to appoint any candidate selected by it to the post of Director of the Institute or the Government has made any attempts to select the candidates for the post of Director of Institute. Thus, the role of these two namely 'selection committee' and the 'appointing authority' are independent, separate and distinct. Neither of them are exercising the role of other nor they are exercising dual roles.
57
46. It is also to be noticed in the instant case that in the first instance when the petitioner Dr.J.Sukumar was recommended by the selection committee, which was constituted for the purposes of selecting the Director of the Institute same is accepted by him and in fact he stakes his claim for being appointed by virtue of such selection made by said Selection Committee. Even according to the petitioner, said selection committee had selected the petitioner and had made recommendation on 8.10.2007 to the first respondent Government to appoint him as Director of the Institute. In other words, petitioner himself does not dispute the fact of the role of the selection committee as well as the role of the Government. Thus, petitioner having participated in the selection process cannot now turn around and contend that selection process is improper or the appointment by way of selection is to be made by the Government of Karnataka alone and not by the selection committee and in fact such a situation does not existed at all. In this regard, the judgments of the Hon'ble Apex Court referred to herein below would 58 clearly go to show that when candidate accepts the procedure adopted by the selection committee such candidate cannot turn around thereafter to contend that selection process itself is improper, particularly when there is acquiescence. The judgments are as under:
(i) AMLAN JYOTI BAROOAH-V/S- STATE OF ASSAM REPORTED IN (2009) 3 SCC 227
29. The question which, however, arises for consideration is as to whether despite the same, we, in exercise of our jurisdiction under Article 136 of the Constitution of India, should interfere with the impugned judgement.
30. Appellant concededly did not question the appointment 169 candidates. It is idle to contend that he was not aware thereof. If he was to challenge the validity and / or legality of the entire select list in its entirely, he should have also questioned the recruitment of 169 candidates which took place as far back as on 4.7.2000.
31. Appellant was aware of his position in the selection list. He was also aware of the change in the procedure adopted by the Selection Committee. He appeared at the interview without any demur whatsoever although was not called to appear for the physical ability test prior thereto. Appellant chose to question the appointment of 77 candidates not only on the premise that the procedure adopted by the Selection 59 committee was illegal but also on the premise that no new vacancy could have been filled up from the select list.
32. Appellant, in our opinion, having accepted the change in the selection procedure sub silentio, by not questioning the appointment of 169 candidates, in our considered opinion, cannot now be permitted to turn round and contend that the procedure adopted was illegal. He is estopped and precluded from doing so.
(ii) (2007) 8 SCC 100- Union of India v/s S. Vinodh Kumar "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar V/s Rajiv Govil) (See also Rashmi Mishra V/s M.P. Public Service Commission)
47. In that view of the matter I am of the considered view that Point No.2 has to be held by concluding that appointment to the post of Director of third respondent -institute is governed by C & R, 1997 by the mode prescribed namely to be made by the State Government by considering the recommendation of the Selection Committee.
60RE POINT NO. 3 AND 4:
48. The Main thrust of the argument advanced by Sri.P.S.Rajagopal, learned Senior counsel appearing for petitioner in this writ petition is that entire selection process which had been commenced had attained finality came to be scuttled at the instance of fifth respondent herein and when the process of selection had commenced it could not have been stalled or stopped in the midst by changing the Rules of the game and such selection process commenced has to reach its logical end. Before delving upon the point formulated let me turn my attention to the case- laws on the issue that governs the process to be adopted while making Direct Recruitment and relied upon by Learned Counsel for petitioner:
(i) (2008) 4 SCC 171 - Dhananjay Malik and others Vs State of Uttaranchal and others "7. It is not disputed that the writ petitioners- respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from 61 challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal vs. State of J & K, (1995) 3 SCC 486, this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, 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 writ petitions. This Court further pointed out 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.
9. In the present case, as already pointed out, the writ petitioners- respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
10. In a recent judgment in the case of Marripati Nagaraja vs. The Government of 62 Andhra Pradesh, (2007) 11 SCR 506 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
11. We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge".
49. In the above case the appointments of Assistant Teachers (Physical Education) was challenged by the unsuccessful candidates on various grounds. The learned Single Judge dismissed the writ petition which came to be reversed in the appeal and same was assailed in Special Leave Petitions by the selected candidates. It was held by Apex Court that writ petitioners had participated in the selection process knowing fully well about educational qualification prescribed which had been clearly indicated in the advertisement and as such it was held that having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection. In the instant case on account of a 63 direction issued by Division Bench of this Court in W.A.461/2007 dated 14.06.2007 the appointment of Director to the institute was required to be made within time frame i.e., 4 months from 14.6.2007 and as such notification dated 15.07.2007 (Annexure-F in W.P.8085/2008) came to be issued calling for applications to the post of Director of 3rd respondent Institute. The Selection Committee on scrutiny of such applications found four candidates were eligible for the post as per the C & R Rules and on 11.10.2007 a representation came to be submitted by the 5th respondent herein which was in pursuance to the earlier representations submitted to various authorities on 23.02.2006, 19.10.2006, 16.07.2007, 06.08.2007 and 14.09.2007 and there was no adjudication of said representation by the Government. In the meanwhile the Selection Committee had sent its recommendations on 08.10.2007 to the State recommending petitioner's name for being appointed as Director of the Institute. However, State did not issue any order or publish the list of selected candidates since the matter was under 64
scrutiny by the Government including the representation of 5th respondent. The perusal of the original records made available by the learned Government Advocate would disclose that at that relevant point of time the State was under President's Rule and a decision had to be taken by his excellency the Governor and thus selection made was at the stage of consideration. It is well settled principle of law that a candidate has a right for his name being considered but does not have a right for being selected. In the instant case admittedly petitioner's name had been recommended for being appointed as Director or in other words the Selection Committee had made the selection for being approved and appointed by the State.
Even before a decision could have been taken by the Government, fifth respondent herein had already set in motion his grievance regarding "age criteria" which had been prescribed as being erroneous and consequently selection process also being illegal. The Select List having not been published by the Government and the same was still under consideration it cannot be held 65 that mere participation by the fifth respondent in the selection process would defeat his right to question the very selection criteria inasmuch as in the instant case the fifth respondent had already submitted representations to the authorities bringing to their notice the anomaly that had crept in the C & R - 1997 much earlier to selection process commenced and he was pursuing the same before the Government. In this factual matrix it cannot be held that fifth respondent is estopped from questioning the said decision of the Selection Committee made on 08.10.2007. In view of the same this Judgment does not assist the petitioner.
(ii) (2006) 6 SCC 395 - K.H.Siraj Vs High Court of Kerala and others
73. The appellants/petitioners having participated in the interview in this background, it is not open to the appellants/petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper. It was so held by this Court in paragraph 9 of Madan Lal & Ors. Vs. State of J & K & Ors. , (1995) 3 SCC 486 as under:
"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 66 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 petitions 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 vs. Akhilesh Kumar Shukla, 1986 suppl SCC 283, 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 protect 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."
74. Therefore, the writ petition filed by the appellants/petitioners should be dismissed on the ground of estoppel is correct in view of the above ruling of this Court. The decision of the High Court holding to the contrary is in per curiam without reference to the aforesaid decisions.
67
50. In this case recruitment was made by the High Court of Kerala to the post of Munsiff-Magistrate under Kerala Judicial Service and same was questioned by the appellants who sought for quashing of the select list on the ground it is contrary to the principles and rules relating to reservations. The learned Single Judge held that selection of some of the candidates as illegal. Said Judgment came to be questioned by the High Court of Kerala before Division Bench and by its final Judgment the High Court allowed the appeal and set aside the Judgment of the learned Single Judge by holding that selections and appointments made were regular in all respects. The Hon'ble Apex Court dismissed the Special Leave Petition and affirmed the order of the Division Bench. It was held therein that candidates who participated in the interview had knowledge that they had to secure prescribed minimum pass marks for being selected and being unsuccessful in interview they could not have turned round and challenge the said provision of fixation of minimum marks was improper. Their Lordships have held that 68 such challenge is liable to be dismissed on the ground of estoppel by invoking section 115 of the Indian Evidence Act, 1872. In the instant case the proceedings of the Selection Committee (Annexure-G in W.P.8085/2008) would clearly go to show that only four candidates were held to be eligible for being considered to be appointed as Director of Institute. Fifth respondent was held to be over aged by 10 months 9 days as on the last date of receipt of application and consequently it held that he is not eligible. The records would go to show that fifth respondent was not in the select list or was not in the zone of consideration. Mere submission of an application would not disentitle the fifth respondent to question the selection since he had been eliminated from the zone of consideration itself as being over aged when he was simultaneously and parallelly pursuing his grievance with the authorities by bringing it to their notice about the disparity with regard to age criteria. It cannot be held that he had acquiesced in the selection process and as such he was estopped from challenging the selection or contending it 69 to be erroneous. Hence, the said Judgment is inapplicable to the case on hand.
(iii) (2000) 9 SCC 283 - Munna Roy Vs Union of India and others
2. The appellant, pursuant to an advertisement issued by the Railway Recruitment Board for the post of Craft Teacher (Bengali Medium), applied for the same. She possesses qualification of a graduate. On the basis of a written test held thereafter, she was successful, and then was called for the interview. But after the interview was over and a select list was published wherein her name also appeared but as no appointment letter was issued, she moved the Central Administrative Tribunal. While the application was pending before the Tribunal, the Railway Recruitment Board cancelled the panel by order dated 5.9.1996 on the ground that there has been sufficient irregularities in the matter of selection, the appellant, therefore, filed an application before the Tribunal for setting aside the order of cancellation and directing the Board to complete the recruitment process. The Tribunal allowed the said application. Against the order of the Tribunal, the matter was taken to the High Court and the High Court having interfered with the order of the Tribunal, the appellant has approached this Court. The High Court while interfering with the order of the Tribunal, has taken into consideration the fact that mere inclusion of a person's name in the list does not confer any right and, therefore, Mandamus cannot be issued. The aforesaid enunciation as a proposition of law cannot be disputed. However, if the administrative authority 70 takes a decision and the reasons for such decision are erroneous then such a decision can be interfered with by Court of Law. In the case in hand the appellant pursuant to an advertisement had applied for and she had the requisite qualification. She became successful in the written test as well as in the viva-voce. The list of successful candidates included her name but the ground for cancellation of the entire list without even informing the appellant was that though the minimum qualification required was a matriculate she was a graduate and thus dubious method has been adopted for being selected. We really fail to understand that if a candidate possesses a qualification higher than the required qualification and the advertisement itself had prescribed the same then how can the authority come to a conclusion that selection has been made by adopting a dubious method. In the aforesaid premises, we have no hesitation to come to a conclusion that the reasons which weighed with the authorities to quash the selection are not germane and must be held to be arbitrary and irrational. We, therefore, set aside the impugned order of the High Court as well as the order of the concerned authorities quashing the selection panel and direct that the order of the Tribunal be implemented.
51. In the said case appellant had applied for the post of Craft Teacher (Bengali Medium) and she was successful in the written test and was called for interview. Her name was found in the select list published. On account of appointment letter not being 71 issued she approached the Central Administrative Tribunal and same held that there was sufficient irregularities in the matter of selection and directed the Board to redo the matter. High Court set aside the order of the Tribunal which was not interfered by the Hon'ble Apex Court on the ground that High Court was correct in holding inclusion of person's name in the list does not confer any right. Infact this decision assists the fifth respondent more than the petitioner since petitioner in the instant case is seeking for issuance of mandamus to the first respondent to appoint him on the basis of the recommendation sent by the Selection Committee on 08.10.2007 whereunder the name of the petitioner had been recommended by the Selection Committee for being appointed as Director of the Institute and admittedly petitioner's name had not got crystallized into a select list in the instant case. Hence, said Judgment does not assist the petitioner in any manner whatsoever.
(iv) (1993) 1 SCC 154 - Union Territory of Chandigarh Vs Dilbagh Singh and others 72
11. In Shankarasan Das v. Union of India, reported in JT (1991) 2 SC 380, a Constitution Bench of this Court which had occasion to examine the question whether a candidate seeking appointment to a civil post can be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list (select list) of candidates for such post has answered the question in the negative by enunciating the correct legal position thus:
"it is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to b appointment which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant Recruitment Rules so indicate, the State is under no legal duty to fill u p all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subbash Chander Marwaha and others. [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and others, [1986] 4 SCC 268, or Jitendra Kumar and others v. State of Punjab and others: [1985] 1 SCR 899."73
12. If we have regard to the above enunciation that a candidate who finds a place in the select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such posting the absence of any specific Rule entitling him for such appointment and he could be aggrieved by his non- appointment only when the Administration does so either arbitrarily or for no bona fide reasons, it follows as a necessary concomitant that such candidate even if has a legitimate expectation of being appointed in such posts due to his name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily: In the instant case, when the Chandigarh Administration which received the complaints about the unfair and injudicious manner in which select list of candidates for appointment as conductors in CTU was prepared by the Selection Board constituted for the purpose, found those complaints to be well founded on an enquiry got made in that regard, we are unable to find that the Chandigarh Administration had acted either arbitrarily or without bona fide and valid reasons in cancelling such 0dubious select list. Hence, the contentions of the learned counsel for the Respondents as to the sustainability of the Judgment of CAT under appeal on the ground of non-affording of an opportunity of hearing to the Respondents (candidates in the select list) is a misconceived one and is consequently rejected.
74
52. In the above case applications for filling up 32 vacancies of conductors in Chandigarh Transport Undertaking (CTU) was invited and Regional Employment Exchange of the Union Territory of Chandigarh was required to sponsor the names of eligible candidates and three member selection board constituted by Chandigarh administration was required to prepare a select list of 32 candidates out of the total number of the applicants. On interview being conducted a select list of 32 candidates was prepared by the selection board which was on the basis of the marks awarded for their educational qualification plus the marks awarded for their performance at the interview, a criteria which was said to have been followed by a Selection Board constituted for a similar purpose in the year 1953. The select list of 32 candidates was announced. On account of severe criticism from the members of both public and the press as to the role of the members of the Selection Board of favouritism, nepotism etc., it compelled the Chandigarh administration to get the issue examined and on such 75 scrutiny it concluded select list of candidates for appointment as conductors in CTU had not been prepared by the members of the Selection Board fairly and judiciously and as such it cancelled the select list of candidates and constituted a new Selection Board to prepare a fresh select list of candidates including those who had been interviewed by the earlier selection board as per fresh selection criteria prescribed. Those applicants whose names were found in the select list approached Central Administrative Tribunal, Chandigarh and Tribunal set aside the order of he Chandigarh administration which had cancelled the earlier select list and directed it to appoint the candidates from the cancelled list or in other words to appoint those candidates whose name were found the in first select list. This Judgment of the Central Administrative Tribunal came to be set aside by the Hon'ble Apex Court by holding a candidate selected for appointment to a civil post does not acquire an indefeasible right and also it was held in the said judgment that the decision not to fill up the vacancies 76 had been bonafide taken by Administration for appropriate reasons. It is this reasoning of the Apex Court which Sri.P.S.Rajagopal, learned Senior Counsel appearing for petitioner contends would be applicable to the facts of the case on the premise that the decision taken by the Government not to approve the recommendation made by the Selection Committee is not with any bonafide reasons but on the other hand with an intention to accommodate the fifth respondent alone.
53. In the first instance it is to be noticed that merely because the petitioner herein had been recommended by the Selection Committee for being appointed as Director of the Institute by itself would not create an indefeasible right in him to be appointed as Director of third respondent-Institute. A notice inviting applications from the candidates is an open invitation to the candidates qualified to apply for such post. Further even if selected or recommended by the concerned selection committee it does not create any unqualified right to such candidate until and unless the 77 recruitment rules itself specifies so. The selection authority or the authority which approves the selection even at the stage of considering the recommendation made by the Selection Committee is entitled to examine the issue as a whole or in other words it is empowered to look into as whether selection process was fair and proper or the relevant rules and regulations applied by selection committee was in accordance with law or there being any illegality that had crept in during such Selection or recommendation as per extant rules or regulations and if found to be, it is empowered to withhold the select list or resolve or decide not to issue appointment letter.
54. In this background when the facts on hand are examined it would clearly go to show that by resolution adopted by the institute at its 44th Governing Council meeting it had made a recommendation regarding fixation of age for appointment of Director to the Institute and same came to be modified by the Government and therefore Government came to conclusion that it was contrary to provisions of 78 Memorandum of Association and bye laws of the institute and as such it did not act upon the recommendation of the Selection Committee but proceeded to examine the grievance of the aggrieved persons and as such it cannot be held that either the Government has acted in arbitrary manner or the petitioner would get any indefeasible right to be appointed only on the ground that his name had been recommended by the Selection Committee. In view of the same the Judgments relied upon by the petitioner does not assist him in any manner whatsoever.
55. It is also necessary to observe at this juncture itself that as to whether the action of the State in not accepting the recommendations of the Selection Committee is arbitrary or capricious. As discussed herein supra, State had accorded its approval to amendment of C & R - 1997 of the institute on 09.02.2007 vide Annexure-B under which the age for appointment of Director of Institute had been prescribed as below 55 years as on the date on which the post of Director became vacant. If said amendment is applied 79 virtually all candidates who had applied as internal candidates would have become eligible to be considered and they could not have been kept outside the zone of consideration. However, by virtue of further amendment to C & R -1997 made on 26.06.2007, Annexure-E the age limit for internal candidates was reduced to 53 years by fixing the cut off to be the last date fixed for receipt of applications and admittedly said amendment was brought within a time gap of five months from the date of first amendment which was made on 09.02.2007. Further there was no resolution passed by the Governing Council of third respondent institute recommending such amendment as required under the bye laws of the institute, and as such the first respondent Government was of the considered view that resolution passed at the 44th Governing Council meeting of the institute was in accordance with law which was required to be approved and in fact had been approved but came to be retraced by it by further amendment on 26.06.2007 Annexure-E and same being contrary to the C & R-1997 and bye laws of the institute the appointing 80 authority namely Government did not except the recommendation of the Selection Committee which had recommended the name of the petitioner for being appointed as the Director of 3rd respondent Institute.
56. The Hon'ble Supreme Court while considering as to what constitutes arbitrariness has held in the case of East Coast Railway and another Vs Mahadev Appa Rao and others reported in AIR 2010 SC 2794 as under:
"8. There is no quarrel with the well settled proposition of law that an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows in the infirmity arising out of absence of reasons cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the court where the validity of such order is under challenge".
"13. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the 81 end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter".
57. In the instant case State has filed its statement of objections on 22.06.2011 and at paragraph 11 and 17 it has been contended as under:
"11.On recommendation of the Selection Committee after re-amendment of C & R Rules dated 26.06.2007 when the State was under Governor Rule on pressure putforth by the petitioner for approval, after detailed examination of factual aspects and circumstances followed by legal opinion from the law department, having noticed a serious lapses on legal aspects in the process of selection against procedure and rules, the then Government decided to withdraw both the letters dated 09.02.2007 and 26.06.2007 and approved the resolution dated 18.12.2006 of the 44th Special Governing Council, as per the impugned G.O dated 24.03.2008.
17. If the State found at any stage, the selection was tainted with illegality always it is open for it to correct the things. In the context, the C & R Rules under Notification dated 09.02.2007 and 25.06.2007 were found illegal and are opposed to existing law on legal opinion by the Law Department and hence, the State under its statutory powers passed impugned orders, which are justified in the circumstances of the case".82
58. Keeping the principles enunciated by their Lordships in the matter of East Coast Railways case referred to supra in mind and contention raised by Government in its Statement of objections as extracted hereinabove, when facts on hand are examined with reference to the contention raised by the learned counsel for petitioner about there being non application of mind while passing the impugned order and there being no basis for the same being passed, it is noticed from the original records that a representation dated 22.02.2007 had been submitted by petitioner as also representation by other scientists of the third respondent - institute to the Secretary- Commerce and Industry, Government of Karnataka requesting the Government to fix the maximum age limit for internal candidates as 55 years as on last date for receiving the applications. The said representations came to be forwarded by the Under Secretary - (Silk) Commerce and Industry to the third respondent- institute by covering letter bearing No.36 2006 dated 28.02.2007 as 83 noted in paragraph 49 and 50 of the note sheet of the file bearing C.No.27858. Based on the said letter received from the Government of Karnataka, the Director of the third respondent-institute requested the Government to reconsider its earlier approval granted on 09.02.2007, Annexure-B and give approval for fixing maximum age limit for in service candidates from 55 years to 53 years to the post of Director. There was no resolution passed by the Governing Council in this regard. However, the recommendation made by the Director of the third respondent-institute vide letter dated 31.05.2007 came to be accepted by the Secretary, Mines, Textiles, Small Scale Industries, Commerce and Industries Department as per note found at paragraph 58 of the note sheet of the same file. The said acceptance came to be approved by the Minister for Silk as found in the same paragraph of the note sheet at internal page 20.
59. It would be relevant to observe that if the resolution dated 18.12.2006 passed at 44th Governing Council of 3rd respondent Institute had been approved 84 by the State Government and notification had been issued by the third respondent-institute calling for applications to the post of Director all Senior Scientist working in the third respondent-institute including the petitioner and respondent Nos. 5 and 6 would have become eligible to apply. However, by virtue of changing the age from 55 to 53 years the level playing field in the process of recruitment became automatically uneven. In other words Senior Scientists working in the third respondent-institute would systematically got eliminated if the age is taken as below 53 years by taking into consideration the last date fixed for receipt of applications then only four candidates would become eligible. However, if the last date is taken as the date on which the vacancy arose all will fit into eligibility criteria. The notings found in the note sheet at paragraphs 49 to 62 would clearly go to show that the State Government having accorded its approval for amendment of C & R - 1997 of the third respondent-institute on 09.02.2007 vide Annexure-B retraced its steps within a short span of four months as 85 noted hereinabove and made further amendment on 26.06.2007 vide Annexure-E based on the recommendation letter dated 31.07.2007, Annexure-R-6 of the Director of institute without there being any resolution passed by the Governing Council in this regard.
60. On account of a direction issued in W.A.No.461/2007 dated 14.06.2007 to make regular appointment to the post of Director of the institute, the third respondent-institute as well as the Government were required to comply with the order passed by Division Bench and as such 3rd respondent Institute proceeded to issue notification dated 15.07.2007- Annexure-F calling for applications for the post of Director and the selection committee held its proceedings on 18.09.2007 and made its recommendations as per Annexure-G. In the meanwhile fifth respondent herein who had submitted earlier representation, submitted one more representation dated 11.10.2007 to the Governor of Karnataka and to the Chief Secretary which was in 86 continuation to earlier representation. Same came to be noted by the Deputy Secretary in the note sheet at paragraph 189 of the file C.No.26929 and forwarded the file to the Governor followed by recommendation of the Secretary to Government, Commerce and Industries Department to approve the recommendation made by the selection committee on 18.09.2007-Annexure-G. Same came to be placed before the adviser to the Governor of Karnataka since at the relevant point of time the State of Karnataka was under the President's Rule. After examining the matter adviser to the Governor is said to have discussed the issue with concerned officials and has made a note on 09.11.2007 at paragraph 197 as under:
"Two previous Ministers incharge had taken different views on the age limit for internal candidates. The file may be put up for orders of the Minister concerned in the incoming Government".
61. On account of the President's Rule being promogulated in the State of Karnataka once again the file was ordered to be placed before the Principal Secretary to the Governor. The Principal Secretary to 87 Government of Karnataka vide his notings in paragraph 212-216 of the note sheet of the same file was of the opinion that second amendment made by the State dated 26.06.2007 as per Annexure-E was not in line with the decision of the 44th Governing Council meeting of the third respondent -institute held on 18.12.2006 and as such he pointed out that course of action is to place the Governing Council resolution dated 18.12.2006 in a special general meeting convened for the special purpose and take it forward from there. He also recommended for seeking opinion from Law Department. As such it came to be placed before the Additional Secretary to Government (Opinion) Law, Justice and Human Rights Department. He has opined as under:
"The Karnataka State Sericulture Research and Development Rules and Regulations, 1980 as well as Cadre and Recruitment Rules, 1997 can be amended only by following the procedure contained in Section 10 of Karnataka Societies Registration Act, 1960 r/w Rule 29 of the KSSDI Rules and Regulations , 1980. The approval of State Government to the modified Cadre and Recruitment Rules, 1997 vide its letter No.CI 26 SLK 06 dated 26.06.2007 fixing the upper age limit of 53 years as on the last date of 88 the receipt of the applications for the post of Director and appointment made pursuant to it is not in accordance with the provisions of law and rules applicable. Such appointment may not sustain if challenged in the court of law".
Sd/-
(R.S.Patil) Additional Secretary to Government (Opinion) Law, Justice & Human Rights Department
62. This opinion came to be approved by the Law Secretary, Principal Secretary to Government, Commerce and Industries Department and file being sent for taking further steps in the matter, the Deputy Secretary made further recommendation to accept the resolution passed by the Governing Council at its special 44th meeting held on 18.12.2006 and it has been opined as under:
Paragraph 249 - According to this, the internal candidates who have applied for the post of Director and appeared for the interview held on 08.10.2007 can be classified as below:
SL.NO. NAME OF THE AS AT
INTERNAL 18.04.1998
CANDIDATE (ORIGINAL 50
YEARS)
1. DR.J.SUKUMAR, SD INELIGIBLE
2. DR.SRINIVAS R KATTI, ELIGIBLE
SD
89
3. DR.SUGUN RAJIV SD INELIGIBLE
4. DR.G.VEERANNA SD INELIGIBLE
5. DR.C.S.PATIL SD INELIGIBLE
6. DR.U.D.BONGALE, INELIGIBLE
FORMER DIRECTOR
PARAGRAPH 250 - If Governing Council resolution dated 18.12.2006 is accepted and deemed to be operational w.e.f. 18.12.2006 the following consequences will emerge SL.NO. NAME OF THE ELIGIBILITY INTERNAL CRITERIA OF CANDIDATE INTERNAL CANDIDATES
1. DR.J.SUKUMAR, SD ELIGIBLE
2. DR.SRINIVAS R KATTI, ELIGIBLE SD
3. DR.SUGUN RAJIV SD ELIGIBLE
4. DR.G.VEERANNA SD ELIGIBLE BUT NOT CALLED FOR INTERVIEW AS PER NOTIFICATION DATED 16.07.2007
5. DR.C.S.PATIL SD INELIGIBLE
6. DR.U.D.BONGALE, INELIGIBLE FORMER DIRECTOR
63. In this background further opinion was sought for from the law department and thereafter opinion came to be issued by the law department on 03.03.2008 which reads as under:
"Since, the Government orders dated 09.02.2007 and 26.06.2007 referred to in 90 sub para (1) and (2) of para 245 n/f are stated to be not based on the resolution of Governing Council of the institute, which alone has authority to add or alter or amend the rules and regulation and bye-law of the institute are liable to be withdrawn and cancelled as stated in para 251(a) n/f. The eligibility for internal candidates fixed "below 53 years as on the date on which the post of Director became vacant" being based on the resolution dated 18.12.2006 of the Governing Council can be approved by the Government. In case if such approval is accorded by the Government, the internal candidates below the age of 53 years as on the date on which the post of Director became vacant would be eligible to be called for interview for the post of Director even though the amendment is give effect from the date of resolution. In such case the date of post of Director falling vacant would be the determining date for the purpose of deciding eligibility for calling for the interview of internal candidates".
Sd/-
(R.S.Patil) Additional Secretary to Government (Opinion) Law, Justice & Human Rights Department
64. The said note came to be approved by the Law Secretary, Principal Secretary - Mines, Textiles, Commerce and Industries, adviser to Governor of Karnataka and it is thereafter the impugned orders have been passed by the State. At this juncture it would be relevant to note the stand of the State. In the statement 91 of objections filed it has been asserted by the State that at any stage of the selection if it is found that selection is tainted with illegality it is open for it to correct its mistakes and contends that in this context it was found that notification dated 09.02.2007 and 25.06.2007 were found to be illegal and opposed to the existing law and as such impugned orders have been passed. It would be necessary to note at this juncture itself that mere selection of the candidate does not confer any right in such a candidate unless it crystalises into an order and C & R - 1997 would lend credence to the said proposition namely Regulation 16 (4) which reads as under:
"The selection list of candidates should be notified in the order of merit for the posts or categories of posts. Mere inclusion of name/s of candidates in the select list does not confer any right in favour of such candidates for such appointment".
(Emphasis supplied by me)
65. In that view of the matter also the contention of the petitioner that selection process once commenced should culminate in issuing appointment order cannot 92 be accepted. It is also to be observed that petitioner himself has submitted a representation on 22.02.2007 Annexure-R-8 whereunder he has sought for amendment to C & R Rules. Hence petitioner is estopped from contending that C & R Rules are inapplicable for the purposes of applying the same to appoint a candidate for the post of Director of the Institute.
66. These facts and the various notings at different levels of the Government would clearly go to show that the decision taken by the Government to pass order dated 24.03.2008 at Annexure-M cannot be construed either as arbitrary, capricious or without application of mind. The voluminous notings and the deliberations having taken place at various levels of the Government cannot be construed or held either as capricious or arbitrary. The said decision arrived by the State is after due application of its mind to the facts on hand with reference to the Memorandum of Association, bye laws and C & R rules. Hence, the said decision cannot be held as without assigning any reasons. The 93 reasons has been recorded in the files maintained by the State and the said reasonings found from the notings would clearly go to show that State had applied its mind before proceeding to pass the impugned orders. Hence said contention deserves to be rejected and accordingly it is rejected.
67. One another contention raised by the learned counsel for petitioner on this issue is with regard to the "cut off date" fixed for being considered to be eligible for applying to the post of Director.
68. Prior to the amendment in the year 2007 as per C & R Rules the mode of recruitment to the post of Director was by direct selection and apart from other essential qualifications prescribed, the age limit had been fixed as 50 years. In the 44th Governing Council meeting of third respondent institute it was recommended by resolution to fix the age as "below 53 years on the date on which the vacancy of the post Director accrued in respect of internal candidates only". Same was sent to approval. However, the Government 94 while considering the recommendation of the 44th Governing Council meeting fixed the age limit as "below 55 years as on the date on which the post of Director became vacant". In the instant case the post became vacant on 24.02.2006 after the term of Dr.Bhongale came to an end. If the cut off date is taken as 53 years and is deemed to be operational from 18.12.2006 petitioner becomes eligible and fifth respondent would become ineligible. However, if the resolution of the 44th Governing Council is accepted namely the age as 53 years as on the date on which the post of Director became vacant both petitioner, fifth respondent and Dr.Bhongale would have become eligible. Hence, the contention of learned counsel for petitioner that Government erred in fixing the cut off date as the date on which the post of Director became vacant has to be set aside, cannot be accepted. The Hon'ble Apex Court while considering the powers of authorities to fix the cut off date for determining the maximum or minimum age prescribed for a post has held, that it is within the discretion of the rule making authority or the employer. 95 It has also been held such cut off date cannot be fixed with any mathematical precision in the case of Dr.Amit Lal Bhat Vs State of Rajasthan and others reported in (1997) 6 SCC 614 which reads as under:
5. This contention, in our view, is not sustainable. In the first place the fixing of a cut off date for determining the maximum of minimum of minimum age prescribed for a post of not, per se, arbitrary. Basically, the fixing of a cut off date for determining the maximum or minimum age required for a post, is in the discretion of the Rule-making Authority or the employer as the case may be.
One must accept that such a cut off date cannot be fixed with an mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut off date is fixed there will be some persons who fall on the right side of the cut off date and some persons who will fall on the wrong side of the cut off date. That cannot make the cut off date, per se, arbitrary unless the cut off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this court i n Union of India and another etc. V. M/s. Parameswaran Match Works etc. (AIR 1974 S.C. 2349) and has been reiterated in subsequent cases. In the cases of A.P. Public Service Commission, Hyderabad and another v. . Sharat Chandra and Ors. (1990 2 SCC 669) the relevant service rule stipulated that the candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cut off date was challenged. This Court considered the various steps required in the process of selection and said, "when such are the different steps in the process of selection 96 the minimum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications". This Court, therefore, held that in order to avoid uncertainly in respect of minimum or maximum age of a candidate.
Which may arise if such an age is linked to the process of selection which may taken an uncertain time, it is desirable that such a cut off date should be with reference to a fixed date. Therefore, fixing in independent cut off date, far from being arbitrary, makes for certainty in determining the maximum age.
6. In the case of Union of India and Anr. v. Sudhir Kumar Jaiswal (1994 4 SCC 212) the date for determining the age of eligibility was fixed at 1st of August of the year in which the examination was to be held. At the time when this cut off date was fixed, here used to be only one examination for recruitment. Later on, a preliminary examination was also introduced. Yet the cut off date was not modified. The Tribunal held that after the introduction of the preliminary examination the cut off date had become arbitrary. Negativing this view of the Tribunal and allowing the appeal. This Court Cited with approval the decision of this Court in Parmeshwar Match Works case (supra) and said that fixing of the cut off date can be considered as arbitrary only if it can be looked upon as so capricious or whimsical as to invite judicial interference. Unless the date is grossly 97 unreasonable, the court would be reluctant to strike down such a cut off date.
7. In the present case, the cut off date has been fixed by the State of Rajasthan under its Rules relating to various services with reference to the 1st of January following the year in which the applications are invited. All service Rules are uniform on this point. Looking to the various dates on which different departments and different heads of administration may issue their advertisements for recruitment, a uniform cut off date has been fixed in respect of all such advertisements as 1st January of the year following. This is to make for certainty. Such a uniform date prescribed under all service Rules and Regulations makes it easier for the prospective candidates to understand their eligibility for applying for the post in question. Such a date is not so wide off the mark as to be construed as grossly unreasonable or arbitrary. The time gap between the advertisement and the cut off date is less than a year. It takes into account the fact that after the advertisement, time has to be allowed for receipt of applications, for their scrutiny, for calling candidates for interview, for preparing a panel of selected candidates and for actual appointment. The cut off date, therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cut off date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cut off date. But there is no basis for urging that this is the only reasonable cut off date. Even such a date is liable to question in given circumstances. In the first place, making a cut off date dependent on the last date for receiving applications, makes it more subject to vagaries of the department concerned, 98 making it dependant on the date when each department issues an advertisement, and the date which each department concerned fixes as the last date for receiving applications. A person who may fail on the wrong side of such a cut off date may well contend that the cut off date is unfair, since the advertisement could have been issued earlier: Or in the alternative that the cut off date could have been fixed later at the point of selection or appointment. Such an argument is always open, irrespective of the cut off date fixed and the manner in which it is fixed. That is by this court has said in the case of Parameshwaran Match Works(supra) and later cases that the cut off date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cut off date can be the last date for receiving applications, appears to be without any basis. In our view the cut off date which is fixed in the present case with reference to the beginning of the Calendar year following the date of application, cannot be considered as capricious or unreasonable. On the contrary, it is less prone to vagaries and is less uncertain".
69. As to what would be the effect when a cut off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non prescription came to be analysed by the Hon'ble Apex Court in the case of Shankar K.Mandal and others Vs State of Bihar and others reported in 2003 (9) SCC 519 after considering its 99 earlier judgments and laid down the principles as under:
5. Pursuant to the directions contained in the earlier judgment of the High Court as affirmed by this Court, a fresh exercise was undertaken. Since the present appellants were not selected, writ petitions were filed before the High Court. In the writ petition which was filed by 55 persons and disposed of by the Division Bench the conclusions were essentially as follows:(1) Some of the writ petitioners (Writ petitioners Nos. 5, 18, 23, 28, 41 and 53) were over age at the time of their initial appointment and their cases were, therefore, wholly covered by the directions given by the High Court, and they were not entitled to relaxation of age;(2) So far as writ petitioners Nos. 6, 26, 30 and 55 are concerned, the stand was that they had not crossed the age limit at the time of making the applications for appointment and, therefore, were within the age limit at the time of initial appointment and were, therefore, entitled to relaxation of age in terms of the judgment passed by the High Court earlier and affirmed by this Court. This plea was turned down on the ground that what was relevant for consideration related to the age at the time of initial appointment and not making of the application;(3) As regards writ petitioner No.24, he was under age at the time of appointment. He was permitted to file a representation before the Director of Primary Education and the High Court ordered that his case would be considered afresh;(4)In respect of writ petitioners Nos. 9 and 17, it was noted that they were refused absorption on the ground that they had not made any application in response to advertisement 100 issued pursuant to the order passed by this Court. Since no material was placed to substantiate this stand and no reasons had been communicated for non-absorption, direction was given to consider representations if made by them within one month from the date of judgment. The said judgment is under challenge in C.A. No.916/1999. Appellants have taken the stand that in terms of this Court's judgment, a person who was not over age on the date of initial appointment was to be considered.
Though it was conceded before the High Court that they were over age at the time of initial appointment, much would turn as to what is the date of initial appointment. The High Court had not considered as to what was the applicable rule so far as the eligibility regarding age is concerned. Learned counsel appearing for the respondent-State however submitted that having made a concession before the High Court that they were over age on the date of appointment, it is not open to the appellants to take a different stand. The crucial question is whether appellants were over age on the date of their initial appointment. It is true that there was concession before the High Court that they were over age on the date of initial appointment. But there was no concession that they were over age at the time of making the application. There was no definite material before the High Court as to what was the eligibility criteria so far as age is concerned. No definite material was placed before the High Court and also before this Court to give a definite finding on that aspect. What happens when a cut off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non-prescription has been considered by this Court in several cases. The principles 101 culled out from the decisions of this Court (See Ashok Kumar Sharma and Ors.v.
Chander Shekhar and Anr. (1997 (4) SCC 18, Bhupinderpal Singh v. State of Punjab (2000 (5) SCC 262 and Jasbir Rani and ors. v. State of Punjab and Anr. (2002 (1) SCC 124) are as follows:
(1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules;
(2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications; and (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
6. It has, therefore, to be decided by the authorities as to which of the three conditions indicated above were applicable to the facts of the case. In the absence of definite material, we think it appropriate to direct the authorities to take a decision within a period of four months from today, as to whether the appellants or one of them was eligible by applying the tests indicated above. These directions shall apply to the writ petitioners who are appellants in the present appeal and to nobody else. The other directions given by the High Court so far as the writ petitioners Nos. 9, 17 and 24 are concerned do not warrant any interference as there has been no challenge by the State Government".
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70. In the instant case by the impugned order the age limit has been fixed as "below 53 years as on the date on which the post of Director became vacant" by restoring the resolution passed by Governing Council of 3rd respondent at its 44th Governing Council meeting held on 18.12.2006. The fixing of a cut off date is in the domain of the rule making authority. Whenever a cut off date is fixed there will always be some persons who would fall within the eligible criteria and some persons outside the eligibility criteria. In the instant case on hand earlier the age was fixed at 50 years came to be amended at the 44th Governing Council meeting of the Institute and it was fixed as 53 years as on the date on which the vacancy accrued. This resolution when sent for approval to the Government by the institute came to be modified as 55 years at the first instance and later on re-amended as 53 years but fixing the cut off date as the last date fixed for receipt of applications. It is by virtue of fixing the last date of receipt of application that the candidate should be 53 years instead of the date on which the post became vacant results in systematic 103 elimination of certain candidates including the fifth respondent herein and as such representations were submitted which ultimately came to be accepted. In this background the Governing Council took into consideration the recommendations of the anomaly committee and resolved to fix the age as "below 53 years as on the date on which the post became vacant" which amendment has been approved by the first respondent-Government by impugned order dated 24.03.2008 Annexure-M. By virtue of such amendment it would neither prejudice the petitioner nor the fifth respondent or six respondent. However sixth respondent having attained the age of superannuation at present it would have no effect whatsoever on his application. In that view of the matter neither prejudice or injustice would be caused to any of the parties by impugned order. In that view of the matter, I am of the considered view that Point No.3 and 4 formulated hereinabove has to be held in the negative i.e., against the petitioner.
71. The age limit initially prescribed for the appointment to the post of Director was 50 years. 104 Pursuant to the direction issued by this court on 01.03.2006 in W.P.6623/2001 directing the Anamoly Committee constituted by the institute to consider the representations of fifth respondent and others seeking relaxation of qualification and age limit, the Anamoly Committee recommended for relaxation of age limit as "below 50 years for external candidates and below 53 years for internal candidates" vide Minutes of the recommendation dated 22.09.2006 (Annexure-R-1 in W.P.8085/2008). The said recommendations made by the Anamoly Committee was placed before the Governing Council of the third respondent-institute at its 44th meeting held on 18.12.2006 (Annexure-R-2). In the said meeting it was resolved by the Governing Council of 3rd respondent to recommend to the Government to amend the C & R - 1997 in so far as appointment to the post of Director of the third respondent-institute particularly with regard to age criteria as "below 53 years on the date on which vacancy of the post of Director accrued in respect of internal candidates only". The said resolution of the 105 Governing Council of third respondent -institute on being forwarded to the State Government, came to be approved with a modification namely instead of maximum 53 years it was modified as "below 55 years as on the date on which the post of Director became vacant in respect of internal candidates only". Subsequently few scientists aggrieved by such amendment are said to have submitted representations to the Government including the petitioner, herein through Commissioner of Sericulture requesting to relax the age to "53 years" and to fix the cut-off date as "last date of application" as the relevant date. The said representation on being forwarded by the Commissioner of third respondent-institute to the State Government came to be considered and recommendation was accepted by granting approval to amend the C & R Rules by fixing the age limit as "below 53 years for internal candidates on the last date fixed for receipt of applications" vide approval date.26.06.2007 Annexure-E. It is pursuant to this amendment approved by the State Government, Notification dated 106 15.07.2007, Annexure-F came to be issued by the third respondent -institute calling for applications from eligible candidates. It is at this juncture rival contentions of the parties namely as to the validity of the approval of amendment accorded by the State as per Annexure-E requires to be considered, since petitioner claims that by virtue of said amendment having been approved by the State as per Annexure-E by fixing the age limit as below 53 years for internal candidates on the last date fixed for receipt of applications came to changed by withdrawing said approval under impugned order dated 24.03.2008 Annexure-M since it would amount to changing the rules of the Game particularly when recruitment process had commenced by which time a right had accrued to petitioner and more particularly when the applications had already been invited for selection and selection committee had also considered the applications received and had resolved to recommend the name of the petitioner.
72. Admittedly the Governing Council of the third respondent-institute at its 44th meeting held on 107 18.12.2006 had resolved to amend the C & R Rules as, "below 53 years on the date on which vacancy of the post of Director accrued in respect of internal candidates only". However, the State Government did not accept the said resolution passed by Governing Council of the third respondent-institute but accorded approval to amend the said rule with modification namely by fixing the age limit as "below 55 years as on the date on which the post of Director became vacant in respect of internal candidates only". As noted herein supra, the Commissioner for Sericulture vide letter dated 31.05.2007, Annexure-R-6 forwarded the representations of 7 Scientists including that of the petitioner to the State by recommending and requesting the state government to reconsider its decision and for fixing the age as "below 53 years as on the last date of application for internal candidates". Based on the said recommendation and without there being any resolution passed by the Governing Council of the third respondent -institute the State Government approved the recommendation and fixed the age limit as "below 108 53 years on the last date fixed for receipt of applications". This amendment dated. 26.06.2007 as per Annexure-E approved by the State Government was not in consonance with the resolution passed by 3rd respondent Governing Council at its 44th Meeting held on 18.12.2006. In the said meeting it was resolved to fix the age at 53 years so also in the second approval (Annexure-E) accorded by the State Government. However, the date of vacancy to be reckoned was fixed by the Governing Council in its 44th meeting as "from the date on which vacancy of the post of Director accrued" which was modified as "on the last date fixed for receipt of applications". The State Government within a short span of four months accorded its approval of this amendment sought for by petitioner by changing the rules of recruitment as per approval dated 26.06.2007, Annexure-E. This approval order was retraced by the Government and order dated 24.03.2008 Annexure-M impugned herein was issued which has been already held hereinabove to be legal. 109
In view of the aforesaid discussions this court is of the considered view that appointment of director to the third respondent-institute is to be made by the State Government after considering the recommendations made by Selection Committee constituted under C & R - 1997. Petitioner would not get any indefeasible right to seek for being appointed as director of third respondent- institute merely because his name had been recommended in the earlier selection process which admittedly has not been accepted by the State Government. Hence the impugned order dated 24.03.2008 is hereby affirmed.
Re: Point No.5:
For the reasons aforesaid, I pass the following:
ORDER (1) Writ Petition No. 15880/2007 and Writ Petition No. 8085/2008 are hereby dismissed.
(2) Respondents 1 to 3 in Writ Petition 8085/2008 are at liberty to proceed to appoint 110 Director to the third respondent - Institute from the stage it was stopped.
(3) Costs made easy.
Ordered accordingly.
Sd/-
JUDGE Pl*