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2003 DIGILAW 95 (KAR)

CHAIRMAN v. H. OMKARAPPA

2003-01-29

body2003
( 1 ) THE only question that arises for decision in this Writ Appeal is whether the selection and appointment of Sri L. Nagaraj, the second respondent herein to the Post of Chief Manager is vitiated on account of factual malafide and breach of recruitment rules. ( 2 ) LEARNED Single Judge has opined that the allegation of malafide is unfounded. As regards allegation of infraction of recruitment rules, learned Single Judge has opined that since the selection committee did not evolve any method or norm for assessing relative merits of the candidates for appointment to the post of Chief Manager, the procedure adopted by the Committee could not be regarded as the one which was in conformity with Rule 5 (a) of Karnataka Small Industries Development Corporation (Cadre and Recruitment) Rules, 1978 as amended by the Board at their 164th meeting held on 27. 07. 1983. Although learned Single Judge has so opined, having regard to the facts and circumstances of the case, he has not quashed or set aside the selection and appointment of the second respondent on the basis of a representation made by learned counsel for the writ petitioner. But, while disposing of the writ petition, learned Judge directed the appellant Corporation to appoint the writ petitioner also as Chief Manager if there is any vacancy in the said post and if there is no such vacancy, then to create an additional post of Chief Manager in order to accommodate the petitioner. ( 3 ) WE have heard the learned counsel for the parties and perused the order of learned Single Judge. Learned counsel reiterated the same contentions urged before the learned Single Judge before us also. ( 4 ) IT is quite often said and reiterated by the Courts that allegations of malafide are easy to make but quite arduos to establish. It is well settled that a person who makes allegations of malafide should prove the charge satisfactorily not only by laying necessary factual matrix in the pleading but also by producing substantive evidence in proof of the charge. In the instant case, on both the counts, the writ petitioner has miserably failed. Having perused the pleadings of the writ petitioner, we should state that the plea of malafide is a vague as it could be. Further, the allegation of malafide is also speculative and imaginary. In the instant case, on both the counts, the writ petitioner has miserably failed. Having perused the pleadings of the writ petitioner, we should state that the plea of malafide is a vague as it could be. Further, the allegation of malafide is also speculative and imaginary. Simply because the selected candidate gave the address of his father-in-law for the purpose of correspondence that too without mentioning the name of the father-in-law, only on that count and without anything further, it would be totally improper for the court to infer bias or malafide on the part of the father-in-law. Secondly, the father-in-law had nothing to do and no role to play with the selection and appointment of the second respondent as the Chief Manager. Thirdly, nothing is placed before the Court either by way of pleading or proof to bring home the charge of malafide/bias against any of the members of the selection committee. Here again, the allegations are as vague as they could be. In that view of the matter, learned Single Judge was fully justified in holding that the allegation of malafide is not established by the writ petitioner. ( 5 ) THIS takes us to the second contention quite strenuously put forth by learned counsel for the writ-appellant before us, that is, with regard to violation of recruitment Rules, particularly Rule 5 (a ). According to the learned counsel for the writ petitioner, since the selection committee did not evolve any method or norms to assess relative merit of applicants for the post, it should be held that the assessment made by the committee was only an eye-wash. This contention of learned counsel for the writ petitioner has to be appreciated in the context of the case. It is an admitted fact that there was only one post of Chief Manager and there were only three candidates including the writ petitioner for the post. The Selection Committee which consisted of experts drawn from the field concerned interviewed all three candidates, one after the other, and immediately after conclusion of the interview and after assessing relative merit of the candidates prepared a panel of selected candidates placing the three candidates one after the other having regard to their relative merit. The Selection Committee which consisted of experts drawn from the field concerned interviewed all three candidates, one after the other, and immediately after conclusion of the interview and after assessing relative merit of the candidates prepared a panel of selected candidates placing the three candidates one after the other having regard to their relative merit. That fact itself clearly indicates that the candidate placed at Serial No. 1 is the best candidate for the post in the estimation and assessment of the Selection Committee. That is how it should be understood in a reasonable and common-sense way. Rule 5 (a) though speaks about marks obtained in the written test and the interview does not specifically prescribe that the Selection Committee constituted by the Corporation should award marks with regard to each candidate regardless of the post in question and that the Selection Committee cannot select candidates for a post on the basis of overall performance of candidates in the interview. ( 6 ) BE that as it may, it is well settled that assessment made by an expert body like the Selection Committee unless it is tainted by malafide, factual or legal, shall not ordinarily be interfered with by the Court. Having heard learned counsel for the parties, we are satisfied that no material is placed before the Court on the basis of which we could possibly doubt the integrity of the members of the Selection Committee and assessment made by them. No vitiating factor or circumstance was shown to us at the time of hearing by learned counsel for the writ petitioner which could vitiate the selection and appointment of the 2nd respondent made by the Corporation to the post of Chief Manager. ( 7 ) AS regards the direction issued by the learned Single Judge to appoint the petitioner as the Chief Manager, suffice it to state that if there is no vacancy, it is beyond the legitimate power of the Court under Article 226 of the Constitution to create a post for a candidate. Under Article 226 of the Constitution, the court can only enforce an established right and cannot issue manadamus to an authority to create a post in order to accommodate a person who has no legal right. Under Article 226 of the Constitution, the court can only enforce an established right and cannot issue manadamus to an authority to create a post in order to accommodate a person who has no legal right. Post are created in terms of cadre and recruitment rules and that power is very much within the domain of the executive power of the Corporation and the Court cannot usurp the executive power of the Corporation. In conclusion, with respect, we cannot sustain the order of learned Single Judge. In the result, the Writ Appeal is allowed. The order of the learned Single Judge is set aside and we dismiss Writ petition No. 6410 of 1991 with no order as to costs. --- *** --- .