Karnataka High Court
Graceline Sarah vs The Director, National Institute Of ... on 1 March, 2005
Equivalent citations: ILR2005KAR1462, 2005(3)KARLJ398
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
ORDER K. Bhakthavatsala, J.
1. The Petitioner is before this Court praying for the following reliefs:-
i) to call for the relevant records as to the selection and the appointment of the Staff Nurses by the Respondent No. 1/National Institute of Mental Health & Neuro Sciences (in short, 'the Institute') in pursuance of the advertisement dated 28.1.2000 (Annexure-G)
ii) to quash the selection of the Respondent Nos. 2,3 and 4 for the post of 'Staff Nurse; and
iii) to issue a writ of mandamus to the Respondent No. l to consider the case of the Petitioner for selection and appointment as Staff Nurse.
2. The Respondent No. l is represented by Sri P S Rajagopal. Respondent Nos. 2,3 and 4 are represented by Sri Annaiah.
3. Heard arguments.
4. The brief facts of the case leading to the filing of the Writ Petition may be stated as under:-
The Respondent No. l had called for applications for the post of Staff Nurses by advertisement in the Deccan Herald dated 28.1.2000 (Annexure-G). The Petitioner applied for the said post. As per interview letter (Annexure-H), the Petitioner attended the interview held on 10.5.2000, but she was not selected, though she was meritorious when compared with the selected candidates. Therefore, the Petitioner is before this Court on the following grounds:-
i) that the action of the Institute in ignoring the meritorious record of the Petitioner, while selecting candidates for the post of Staff Nurse is bad in law.
ii) that there is ulterior motive in the selection of the candidates.
iii) that the Selection Committee has exercised its authority arbitrarily.
iv) that the Institute has violated Articles 14 and 16 of the Constitution of India.
v) that the Institute being a deemed University has not followed the Rules and Regulations in the exercise of power.
5. The Respondent No. 1/Institute has filed statement of objections stating that on scrutiny, it found 1232 candidates were eligible (out of 1679 applications) and 1024 candidates including the Petitioner attended the interview. The Selection Committee interviewed the candidates and, after ranking them strictly in accordance with the marks secured by them in the selection process, selected and recommended 93 candidates for being appointed as Staff Nurse. The Director of the Institute, who is the appointing authority accepted the select list and issued appointment Orders to the selected candidates on 30.5.2000 and all of them have reported for duty long ago. The Petitioner, who belongs to General Merit category, could not be appointed since she did not come within the 'number of vacancies, for which recruitment was made. It is further contended that in the absence of any allegation of malafides, this Court, in its extraordinary Jurisdiction under Article 226 of the Constitution of India, cannot substitute its opinion on merit and suitability of candidates for appointment in place of the opinion formed by the Selection Committee, which consisted of eminent persons who have made the selection as per the. best evaluation and assessment of merit of each of the candidates. However, the Writ Petition challenging the selection and appointment cannot be entertained in the absence of selected and appointed candidates being made parties to the Writ Petition. Therefore, prayed for dismissal of the Writ Petition.
6. The Respondent Nos. 2 to 4 have filed joint statement of objections contending that the 2nd, 3rd and 4th Respondents belong to OBC, SC and General Merit category, respectively, and the 1st Respondent/Institute has selected them following the due procedure, and they have already assumed duties and working and there is no merit in this case.
7. The learned Counsel appearing for the Petitioner vehemently submitted that the Petitioner has passed Diploma in General Nursing and Midwifery in II Division; thereafter, registered her name with the Karnataka State Nursing Council under register No. 21144; the Petitioner has worked for 2 years in the Church of South India Hospital, Chikkaballapur, as a Nurse. Further, the Petitioner did Diploma course in Psychiatric Nursing (DPN) (during 1998-99) in the Respondent No. 1/Institute and passed with 465 marks out of 600 and the Petitioner has been awarded with Dr. M E Govindaswamy and Dr. D L N Murthy Rao Memorial prize and thus the Petitioner has got a meritorious record and experience, but she has not been selected for the post of "Staff Nurse' in the Respondent No. 1/Institute. He further submitted that an adverse inference shall be drawn for non-production of the selection records inspite of affording sufficient opportunity to the Respondent No. 1/ Institute, and selection process adopted by the Selection Committee is arbitrary and the Committee did not exercise the authority in just and fair manner.
8. Sri P.S. Rajgopal, learned Counsel appearing for the Respondent No. l/Institute, submitted that the Writ Petition is not maintainable on the ground that all those candidates selected were not -made parties. In this regard, he has cited a decision reported in (ISHWAR SINGH AJAY KUMAR AND ORS. v. KULDIP SINGH AND ORS, 1995 SUPP(l) SCC 179 .). He further submitted that the Selection Committee has selected the candidates in just and fair manner and as per the decision reported in (NATIONAL INSTITUTE OF MENTAL HEALTH & NEURO SCIENCES v. DR. K. KALYANA RAMAN AND ORS., ). The selection Committee, which exercised its administrative function need not give reasons for recommending the candidates for appointment. He cited a decision reported in (DALPAT ABASAHEB SOLUNKEJ, ETC. ETC., v. DR. B S MAHAJAN ETC, ETC., ) on the point that it is not the function of a Court to hear Appeals over decisions of Selection Committee and scrutinize relative merits of candidates. Regarding non-production of proceedings of the Selection Committee, he submitted that inspite of the best efforts made, the records could not be traced.
9. Admittedly, the Institute had 366 sanctioned Staff Nurse posts (Group-C) and the method of recruitment is direct. The qualification and experience prescribed for the post of Staff Nurse are as under: -
i) Qualification: (a) Matriculation or equivalent
(b) Registered 'A' grade Nurse under any State Nursing Council with two years of Experience.
OR B.Sc. Nursing with registration under any State Nursing Council.
ii) Experience: Desirable: Diploma in Psychiatric Nursing (DPN)/ Diploma in Neuro Nursing(DNN) or equivalent qualification from any recognised Institution/ University.
10. As per the Institute's notification dated 18.1.2003, SL No. 13 is pertaining to filling up of 148 Staff Nurses (Subject to variation) (GEN-48, OBC-51, SC-24, ST-25) and 03 FOR DE-ADICTION CENTRE (OBC-02. SC-01). But, the Selection Committee by its proceedings dated 26.5.2000 recommended to appoint in all 93 persons as against 148+ 3 Staff Nurses. The recommendation does not contain any reason for not filling up of all the posts. The Selection Committee was headed by Dr. M.D, Marker (Medical Superintendent) with three other Members and Registrar of the Institute as Member Secretary. In view of the grounds urged in the Writ Petition, it is necessary to look into the proceedings of the Selection Committee, but inspite of giving sufficient opportunity and time, the Institute has not produced the File. It indicates dereliction of the duty on the part of the custodian of the records. It is pertinent to mention that the Selection Committee made its recommendation on 26.5.2000 and the same was approved on 29.5.2000. The Writ Petition came to be filed on 7.7.2000 and Emergent Notice was Ordered. Under such circumstances, the Institute should have preserved the File, as the very first prayer of the Petitioner is to call for the records as to the selection and appointment of Staff Nurses by the Institute. Non-production of the selection proceedings of the Committee by the Institute cannot be lightly brushed aside. On the other hand, the non-production of Selection Committee proceedings fortifies the case of the Petitioner regarding arbitrariness and unfair procedure adopted by the Selection Committee in the selection process. The Petitioner claims that she is the meritorious candidate and the Respondents have not placed any record to hold otherwise. How much marks she has secured in the interview and what was her place in the merit list is not known. In the statement of objections filed by the Institute, it is stated that the Petitioner was not selected, as she did not come within the number of vacancies. Such a bald statement made by the Institute creates grave doubt in the mind of the Court as to the procedure adopted by the Selection Committee. As per the Bye-laws of the Institute, Selection Committee shall decide its own procedure for conducting the selection and it shall prepare panel of names in Order of merit. No doubt, the Selection Committee has been empowered to decide the procedure, but what was the procedure adopted by the Selection Committee shall be made known and how much marks each one of the candidates including the Petitioner secured in the interview shall also be placed before this Court so as to adjudicate the case in accordance with law. The Respondent No. 1 Institute has kept this Court in dark in relation to the whole selection process. No doubt, the function of the Selection Committee is purely administrative, but there should be transparency. It is not a case of selection of a Peon, whose educational qualification is 4th Standard. When the Authority has prescribed professional qualification and experience, the marks secured by the candidate in the educational qualification shall have some basis in the selection process. But, in the instant case, what kind of procedure or norm was adopted by the Selection Committee is not placed on record. Since the Petitioner has not sought for quashing the entire selection list, the contention of the learned Counsel for the Respondent No. l that the Writ Petition is not maintainable on the ground that all the candidates were not made parties to the Writ Petition falls to the ground. I see no good ground to set aside the appointment of Respondent Nos. 2, 3 and 4. On the other hand, it would meet the ends of justice if the Respondent No. I/Institute is directed to consider the case of the petitioner for being appointed as Staff Nurse in the Respondent No. 1/Institute.
11. For the reasons said supra. I pass the following Order-The Writ Petition is disposed of directing the Respondent No. 1/ Institute to consider the case of the Petitioner for being appointed as Staff Nurse in the Respondent No. 1/Institute, within three months from the date of receipt of the copy of this Order. Further, the Respondent No. 1/Institute is directed to amend its Central Bye-law Clause 10(v) 4, suitably and prescribe proper procedure to be adopted by the Selection Committee for conducting the selection in future in the light of the observation made above. No costs.