Karnataka High Court
Dr. Raghavendra H K vs The State Of Karnataka on 16 January, 2021
Equivalent citations: AIRONLINE 2021 KAR 115, 2021 (2) AKR 307
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.4923/2020 (S - RES)
BETWEEN
DR. RAGHAVENDRA H K.,
S/O KEMPAIAH,
AGED ABOUT 37 YEARS,
R/AT HANCHIHALLI VILLAGE,
HANCHIHALLI POST,
KORATAGERE TALUK,
TUMAKURU DISTRICT - 572 129.
... PETITIONER
[BY SRI. RAHAMATHULLA KOTHWAL, ADVOCATE
(PHYSICAL HEARING)]
AND
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF HIGHER EDUCATION,
6TH FLOOR, MULTISTORIED BUILDINGS,
BENGALURU - 560 001.
2. THE PRINCIPAL SECRETARY
TO GOVERNMENT,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORSM (DPAR),
2
VIDHANA SOUDHA,
BENGALURU - 560 001.
3. THE SECRETARY TO GOVERNMENT,
SOCIAL WELFARE DEPARTMENT,
2ND FLOOR, VIKASA SOUDHA,
VIDHANA VEEDHI,
BENGALURU - 560 001.
4. THE COMMISSIONER,
SOCIAL WELFARE DEPARTMENT,
5TH FLOOR, MULTISTORIED BUILDINGS,
DR B.R.AMBEDKAR VEEDHI,
BENGALURU - 560 001.
5. THE VICE CHANCELLOR,
BENGALURU UNIVERSITY,
JNANABHARATHI CAMPUS,
MYSURU ROAD,
MUTHARAYANA NAGAR,
BENGALURU - 560 056.
6. THE REGISTRAR,
BENGALURU UNIVERSITY,
JNANABHARATHI CAMPUS,
MYSURU ROAD,
MUTHARAYANA NAGAR,
BENGALURU - 560 056.
7. MRS.CHAITRA NAGAMMANAVAR,
AGED ABOUT 24 YEARS,
R/AT NAVODAYANAGARA,
OPPOSITE TO 14TH CROSS,
K.U.D. ROAD,
DHARWAD - 580 003.
... RESPONDENTS
[BY SMT.SHARADAMBA A.R., AGA FOR R1 - R4;
(PHYSICAL HEARING);
3
SRI.A.NAGARAJAPPA, ADVOCATE FOR R7;
(VIDEO CONFERENCING);
SRI.B.RAMESH, ADVOCATE for R5 & R6;
(VIDEO CONFERENCING)]
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER, DATED 27.12.2019
PASSED BY THE SELECTION COMMITTEE AND THE R-5
AND 6 VIDE ANNEXURE-N, APPOINTING THE R-7 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petition, though listed for Orders, is taken up for its Final Disposal with the consent of learned counsel appearing for the parties.
2. The petitioner in this writ petition has called in question the order dated 27.12.2019 of the Selection Committee of respondent Nos.5 and 6 - Bengaluru University appointing respondent No.7 as Assistant Professor in the Department of English.
3. Brief facts leading to the filing of present writ petition are that, respondent Nos.5 and 6 - 4 Bengaluru University issued a Notification calling for applications from eligible candidates to fill up the unfilled backlogs vacancies in various discipline. The writ petition concerns the discipline of English in the Department of English of respondent Nos.5 and 6 - Bengaluru University. The Notification was issued on 21.03.2018 for filling up backlog Teaching posts under Special recruitment Rules. The recruitment is initiated under the Karnataka State Civil Services (unfilled Vacancies reserved for persons belonging to the Scheduled Castes and Scheduled Tribes) (Special Recruitment) Rules, 2001 (hereinafter referred to as 'the Special Rules' for short).
4. Pursuant to the selection process initiated by the University, the petitioner and respondent No.7 finding themselves eligible under the Notification, participated in a selection process and on consideration of the respective credentials of both the 5 petitioner and respondent No.7, the University notified provisional eligibility list in which, both the petitioner and respondent No.7 were found to be eligible. On further scrutiny of the credentials of both the petitioner and respondent No.7, the University thought it fit to find respondent No.7 eligible to be appointed to the post of Assistant Professor in the Department of English of the University. It is this order of appointing respondent No.7 that is called in question by the petitioner.
5. Heard the learned counsel, Sri. Rahamathulla Kothwal, appearing for the petitioner, the learned AGA, Smt. Sharadamba, A.R., appearing for respondent Nos.1 to 4, the learned counsel, Sri. A. Nagarajappa, appearing for respondent No.7 and the learned counsel, Sri. B. Ramesh, appearing for respondent Nos.5 and 6.
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6. Learned counsel appearing for the petitioner would submit that the Special Rules under which, the Notification issued mandates that candidates, who are between the age of 29 and 40 are required to be considered at the outset and later, when no candidate is found eligible between the age of 29 to 40 only then a candidate between the age of 18 and 29 should be considered and the petitioner, who is at 34 years ought to have been selected as he was found eligible.
7. On the other hand, the learned counsel appearing for the University while justifying the appointment of respondent No.7 would submit that the petitioner has participated in the selection process and cannot now turn around and challenge the selection process under which he participated. He would place reliance upon the judgment of the Apex Court in the case of Anupal Singh and Others Vs. 7 State of Uttar Pradesh reported in (2020) 2 SCC 173 to contend that once a candidate who takes chance of participation in the selection process cannot turn around and challenge the selection process or even the appointment of the selected candidate.
8. Learned counsel, Sri. A. Nagarajappa appearing for respondent No.7 in justification of the appointment would contend that the ground with regard to the applicability of Rule 6 of the Special Rules is not made out in the pleadings and it is for the first time submitted before this Court.
9. He would further contend that eligibility of the petitioner for participation cannot be doubted as Rule 3 of the Special Rules clearly indicates that the persons who are beyond 18 years can participate in the selection process. Therefore, no fault can be found 8 with respondent No.7 participation in the selection process.
10. He would further contend that respondent No.7 is far more meritorious than the petitioner and the University is right in selecting a candidate who is more meritorious than the petitioner and prays the writ petition to be dismissed on both the grounds of respondent No.7 being meritorious and the petitioner participating in the selection process.
11. I have given my anxious consideration to the submissions made by the learned counsel appearing for the parties and perused the material on record.
12. The Notification dated 21.03.2018 calling for applications from eligible candidates was to fill up backlog vacancies. The Notification clearly indicated that it is under the Special Rules the recruitment is 9 taking place. Therefore, it is not in dispute that the Rules of 2001 of the Special Rules are applicable to the recruitment in question. Rules 3, 5 and 6 of the Special Rules, which are germane for a consideration of the issue in the present lis is extracted hereunder for the purpose of ready reference:
"3. Age:- Notwithstanding anything to the contrary contained in the Karnataka Civil Services (General Recruitment) Rules, 1977, or the rules of recruitment specially made for recruitment to any service or post, the candidates for recruitment to any service or post under these rules must have attained the age of eighteen years but not attained the age of forty years.
5. Mode of Recruitment:-
(1) Notwithstanding anything to the contrary contained in the Karnataka Civil Services (General Recruitment) Rules 1977 or the rules of recruitment specially made for recruitment to any service or post, recruitment under these rules shall be made by the Selecting Authority.10
(2) The Selecting Authority shall, for recruitment to the category of posts referred to in rule 4, cause to invite applications from the candidates possessing the qualification by publishing in the Official Gazette and in more than one widely circulated regional newspapers, of which, at least, one shall be in Kannada.
6. List of Selected Candidates:-
(1) The Selecting Authority shall, from among the candidates who have applied in pursuance to the publication inviting applications under rule 5 and who have attained the age of 29 years but not attained the age of 40 years, prepare a list of Candidates for each category of posts in the order of merit on the basis of percentage of total marks secured in the qualifying examination and taking into consideration the reservation for women, ex-
servicemen, physically handicapped and project displaces persons in accordance with the Karnataka Civil Services (General Recruitment) Rules, 1977 and the rural candidates in accordance with the Karnataka Reservation of Appointments or posts (In the Civil Services of the State for Rural Candidates) Act, 2000. If however, sufficient number of candidates, who have attained the 11 age of 29 years but not attained the age of 40 years are not available, the candidates, who have attained the age of 18 years but not attained the age of 29 years shall also be included in the select list in accordance with the provisions specified above to the extent of such insufficient number.
Provided that if two or more candidates have secured equal percentage of total marks in the qualifying examination, the order of merit in respect of such candidates shall be fixed on the basis of their age, the one older in age being placed higher in the order of merit. The number of candidates to be included in such list of eligible candidates shall be equal to the total number of vacancies notified under these rules.
(2) The list prepared in accordance with sub-rule (1) shall be published in the Official Gazette and shall be valid till all the candidates suitable for appointment notified under these rules are appointed."
(emphasis supplied) 12
13. Rule 6 of the Special Rules which deals with the manner of preparation of select list mandates that the Selecting Authority after the list of eligible candidates is out, shall consider the appointment of the candidates, who are found eligible and who are between the age of 29 and 40 years. If no candidate is available, who is eligible to be considered for appointment to the post it is then the Selecting Authority would derive a right to consider candidates, who are between the age of 18 and 29. This is the unmistakable purport of the Rule. It is on the bedrock of the aforesaid Rules, the recruitment in question will have to be considered.
14. It is not in dispute that both the petitioner and respondent No.7 were found to be eligible to be appointed to the post of Assistant Professor, Department of English of respondent - University. Both of them being found eligible, the consideration 13 ought to have happened in terms of Rule 6 of the Special Rules.
15. It is also not in dispute that the petitioner, who was found eligible, was 34 years and respondent No.7 even according to the affidavit filed before this Court is 25 years. No doubt that respondent No.7 was eligible to participate in the selection process under Rule 3 of the Special Rules as she had crossed the age of 18 years. The consideration by the Selecting Authority will have to be under Rule 6 of the Special Rules. In terms of Rule 6 of the Special Rules, when both the petitioner and respondent No.7 were found to be eligible, the selection ought to have been made of a candidate, who was found to be eligible and is between the age of 29 and 40 at the outset. It is only after arriving at a conclusion that there is no candidate between the age of 29 and 40 to be appointed then consider the appointment of a 14 candidate, who is also found eligible, who is aged between the age of 18 and 29.
16. It is trite law that if a statute prescribes a particular mode of operation, it shall be done in that manner or not at all. The law in this regard is too well settled by the judgments rendered more than a century ago which is followed by the Apex Court in the case of BABU VERGHESE V. BAR COUNCIL OF KERALA reported in (1999) 3 SCC 422, has held as follows:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJCh 373] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63 IA 372 : AIR 1936 PC 253] who stated as under:
"[W]here a power is given to do a certain thing in a 15 certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322 :
1954 SCR 1098] and again in Deep
Chand v. State of Rajasthan [AIR 1961 SC
1527 : (1962) 1 SCR 662] . These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57] and the rule laid down in Nazir Ahmad case [(1936) 63 IA 372 : AIR 1936 PC 253] was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
In terms of the afore-extracted judgment of the Apex Court, the Selecting Authority ought to have adhered to the mandate of the statute in preparing the select list. Therefore, the preparation of the select list is contrary to the statute. As the petitioner was 16 found eligible, he ought to have been selected and appointed in place of respondent No.7.
17. Insofar as the contention of the respondents that the petitioner is estopped from challenging the selection process after having participated on the ground of acquiescence is concerned, the said principle is not a panacea to all the ills and illegalities committed by the Selecting Authorities. It is noticed that the Selecting Authorities time and again commit glaring illegalities in selections contrary to the statute, appoint candidates contrary to law and try to take shelter under the plea of estoppel against the candidates who challenge the act of the Selecting Authorities and consequent appointments, on a specious plea that the candidate cannot turn around and challenge the selection process or procedure stipulated for selection, after having participated in the selection process. The same plea is 17 advanced in unison by the respondent - University and the selected candidate. The plea of the said respondents is unacceptable to me.
18. The University has made selections blatantly contrary to Rule 6 of the Special Rules which has resulted in the appointment of respondent No.7 to the post of Assistant Professor in the Department of English and denial of the entitlement of the petitioner to be considered for such appointment. The petitioner has not questioned the notification, process of selection or procedure adopted, but has questioned the selection of respondent No.7 as contrary to law. Such a challenge can be made only after the outcome of the selection process for which the candidate should partake in the said selection process. This view of mine, in this regard, is fortified by judgments of the Apex Court in the case of RAJ KUMAR V. SHAKTI RAJ reported in (1997) 9 SCC 527.
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"16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of 19 selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law."
A Three Judge Bench of The Apex Court in the afore-extracted case has clearly held that principle of estoppel and acquiescence would not be applicable in the case where a Government had committed glaring illegalities in the selection.
19. The Apex Court in the latest judgment, in the case of Dr.(Major) Meeta Sahai Vs. Union of India reported in (2019) 20 SCC 17, considering the entire case law in point has held as follows:
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"15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection.
16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 :
(2011) 1 SCC (L&S) 256] , observing as follows : (SCC p. 584, para 16) "16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2008) 4 PLJR 93] that after having taken part in the process of selection knowing 21 fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission.
This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." [ See also : Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal, 22 (2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable 23 illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
(emphasis supplied) If the facts obtaining in the case at hand is considered in the light of law laid down by the Apex Court in the afore-extracted judgment, the petition cannot be shown the doors of the Court for an exit, merely because the petitioner has participated in the selection process as it is only the outcome of selection that has brought out the illegality committed by the University in selecting respondent No.7 contrary to the Special Rules.
20. The judgment relied on by the learned counsel appearing for University in the case of Anupal Singh (supra) is distinguishable on the facts obtaining in the case at hand without much ado. The challenge in the case before the Apex Court was with regard to conduct of the examination and the percentage of 24 reservation as notified in the select list. It is in this context, the Apex Court has held that a candidate who takes a chance in the selection process with eyes wide open cannot challenge the process of selection conducted by the commission, as in terms of the Notification, the candidates therein had consciously participated in the selection process including the interview. The facts obtaining in the case at hand are completely different where there is no challenge to the process or procedure of selection or the Notification, but, to the appointment of the respondent No.7 pursuant to the selection being contrary to the statute.
21. Thus, in terms of the afore-extracted judgment of the Apex Court considering all the judgments on the issue of estoppel, acquiescence and waiver as in the case of Dr.(Major) Meeta Sahai (supra) held that illegality in a selection process can 25 be found by a candidate only on its participation and not otherwise, the case at hand is a case where admittedly, the selection of respondent No.7 is contrary to the Special Rules under which the recruitment Notification is issued by the University as indisputably the petitioner is 34 years and was eligible to be considered, respondent No.7 was 25 years and was though eligible to be considered only in a circumstance, where there is no candidate, who is eligible between the age 29 and 40. Therefore, the submission of the learned counsel appearing for the University that the petitioner is estopped from challenging the appointment of respondent No.7 after having participated in the selection process is unfounded and unacceptable.
22. Insofar as the judgment of the Apex Court in the case of Karnataka State Seeds Development Corporation Limited Vs. H.L. Kaveri reported in 26 (2020) 3 SCC 108 is concerned, the issue in the said judgment was the candidates, who had participated in the selection process, who had been turned down by the Selecting Authority were more meritorious and their selection was turned down on the ground that the certificates that were required to be submitted to the Selecting Authority had not been submitted. It is in that light, the said judgment is rendered, which is also inapplicable to the facts of the case on hand. For the aforesaid reasons, the following:
ORDER i. The writ petition is allowed.
ii. The appointment of respondent No.7 is quashed.
iii. The University is directed to consider
the case of the petitioner for
appointment to the Assistant
27
Professor in the Department of
English - Bengaluru, if no other
candidate between the age 29 and 40
is more meritorious than the
petitioner.
iv. Till the case of the petitioner is considered, respondent No.7 shall not be disturbed.
v. The said exercise shall be carried out by the University within three weeks from the date of receipt of copy of the order.
Sd/-
JUDGE SJK