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2023 DIGILAW 444 (KAR)

Kidwai Memorial Institute Of Oncology v. Leena S.

2023-03-15

ALOK ARADHE, VIJAYKUMAR A.PATIL

body2023
JUDGMENT/ORDER ALOK ARADHE, J. - These appeals arise out of a common order dated 20.09.2017 passed by learned Single Judge in W.P.No.12907/2017 and in W.P.No.13427/2017 by which notification dated 17.03.2017, insofar as it relates to the appointment of respondents No.3 and 4 in the writ petitions as Assistant Surgeon (BDS) in KIDWAI Memorial Institute of Oncology (hereinafter referred to as 'the Institute' for short) has been quashed. The institute has filed W.A.NO.6739/2017 and W.A.NO.6749/2017, whereas, respondent No.4 in the writ petition has filed W.A.No.6751/2017 and W.A.No.6/2018. The respondent No.3 in the writ petition has filed W.A.No.6499/2017. In all these appeals, a common issue i.e., Selection and appointment of the candidates namely respondent No.3 & 4 in Writ Petitions (Selected Candidates) on the post of Assistant Surgeon (BDS), is involved, therefore, the appeals were heard together and are being decided by this common judgment. 2. Facts giving rise to filing of these appeals in nutshell are that the Institute issued notification dated 06.07.2016 inviting applications from eligible candidates for the post of Professor, Assistant Surgeons and Physicists. The aforesaid notification was published in newspapers on 07.07.2016. The eligibility criteria as well as the mode of selection was mentioned in the notification. The last date of submission of applications was 30.07.2016. 3. The writ petitioners as well as other candidates applied for the post of Assistant Surgeon (BDS). The applications submitted by the candidates were scrutinized and interviews were conducted by the selection committee on 18.10.2016. Thereafter, a provisional list was published on 29.11.2016. The writ petitioners submitted objections to the aforesaid provisional list on 05.12.2016 and 09.12.2016. The objections preferred by the writ petitioners were considered and thereafter, the final select list was published on 17.03.2017. The appellant in W.A.No.6499/2017 and in W.A.No.6751/2017 and in W.A.No.6/2018 were selected on the post of Assistant Surgeon (BDS). 4. The writ petitioners challenged the appointment of the selected candidates on the post of Assistant Surgeon (BDS) in W.P.No.12907/2017 and W.P.No.13427/2017 and sought for a writ of certiorari seeking quashment of the Final Select List vide notification dated 17.03.2017. The writ petitioners also sought a writ of mandamus seeking a direction to the respondents to consider the representations / objections of the writ petitioners. The writ petitioners also sought a writ of mandamus seeking a direction to the respondents to consider the representations / objections of the writ petitioners. The learned Single Judge on perusal of the record of the selection by an order dated 20.09.2017 inter alia held that the constitution of the selection committee was not in accordance with Bye Law No.12 of the Bye Laws of the Institute. It was further held that the entire process, post notification is submerged in opacity and there is no clarity whether a meeting of the selection committee has been convened either prior or post 18.10.2016. It was also held that criteria for selection was changed after the commencement of the process of selection, which tantamounts to changing the Rules of the game and tweaking of the Rules / adoption of dual standards for the candidates for the same post, is a pre determined exercise in order to favour selected candidates. 5. The learned Single Judge further held that the entire exercise was orchestrated by the Director of the Institute with a malafide intention to ensure appointments of selected candidates. The learned Single Judge therefore, quashed the notification dated 17.03.2017 insofar as it pertains to selected candidates. In the aforesaid factual background, these appeals have been filed. 6. Learned Senior counsel for the Institute submitted that the learned Single Judge ought to have appreciated that writ petitioners were not eligible for consideration for appointment to the post of Assistant Surgeons (BDS) as they did not have ten years experience. It is further submitted that since, the writ petitioners were ineligible for appointment, therefore, they could not have challenged the process of selection. It is contended that the issue with regard to maintainability of the writ petitions despite being raised in the statement of objections and arguments was not addressed by learned Single Judge. In support of aforesaid submissions, reference has been made to decision of Hon'ble Supreme Court in 'DR. RAI SHIVENDRA BAHADUR VS. GOVERNING BODY OF NALANDA COLLEGE, BIHAR, AIR 1962 SC 1210 , DR.UMAKANTH SARAN VS. STATE OF BIHAR', (1973) 1 SCC 485 AND 'SURENDER SINGH VS. UNION OF INDIA', (2007) 11 SCC 599 . 7. It is urged that the writ petitioners had participated in the process of selection and therefore, could not turn around and challenge the process of selection. GOVERNING BODY OF NALANDA COLLEGE, BIHAR, AIR 1962 SC 1210 , DR.UMAKANTH SARAN VS. STATE OF BIHAR', (1973) 1 SCC 485 AND 'SURENDER SINGH VS. UNION OF INDIA', (2007) 11 SCC 599 . 7. It is urged that the writ petitioners had participated in the process of selection and therefore, could not turn around and challenge the process of selection. In support of aforesaid submission, reference has been made to decision of Hon'ble Supreme Court in 'ASHOK KUMAR AND ANR. VS. STATE OF BIHAR AND ORS.', (2017) 4 SCC 357 . It is contended that selection committee was constituted as per Bye Law No.12(c) of the Bye Laws and the majority of the members of the selection committee were Doctors. It is also pointed out that there was no pleading in the writ petition stating that the selection committee should consist of Doctors only. It is also urged that the Committee was constituted as per Regulation and presence of majority of members of the Committee would constitute a valid meeting. In support of aforesaid submission, reference has been made to decision of Hon'ble Supreme Court in 'SRI.ISHWAR CHANDRA VS. SRI.SATHYANARAYAN SINHA AND OTHERS', (1972) 3 SCC 383 and DR.G.SARANA VS. UNIVERSITY OF LUCKNOW AND ORS.', (1976) 3 SCC 585 . 8. It is argued that the learned Single Judge ought to have appreciated that, the finding, that the Director of the Institute brought in the amendment to help the selected candidates with a malafide intention could not have been recorded as there was no pleading to that effect. It is pointed out that the amendment was bought about by Governing Council of the Institute. It is also submitted that amendment in Cadre and Recruitment Rules was made on 12.05.2014 and at that time, Dr.Vijay Kumar was the Director, whereas, the present Director was appointed on 12.01.2015. It is contended that a plea regarding malafides has to be pleaded and proved. Reliance has been placed on decision of Hon'ble Supreme Court in SECY. (Health) DEPT. OF HEALTH AND FW AND ANR. VS. DR.ANITA PURI AND ORS.', (1996) 6 SCC 282 . 9. It is contended that a plea regarding malafides has to be pleaded and proved. Reliance has been placed on decision of Hon'ble Supreme Court in SECY. (Health) DEPT. OF HEALTH AND FW AND ANR. VS. DR.ANITA PURI AND ORS.', (1996) 6 SCC 282 . 9. It is also urged that there is no pleading with regard to adoption of dual standards for selection of Assistant Surgeon (MBBS) & Assistant Surgeon (BDS) and the criteria for selection was adopted which is prescribed by Medical council of India, Dental Council of India as well as Cadre and Recruitment Rules, applicable to the Institute. Lastly, it is contended that substitution of the view taken by the selection committee is not permissible. In this connection, reference has been made to decision of Hon'ble Supreme Court in 'CHANCELLOR AND ANR. VS. DR.BIJAYANANDA KAR AND ORS.', (1994) 6 SCC 169. 10. Learned counsel for the appellant in W.A.NO.6499/2017 submitted that the writ petitioner had clearly indicated that her experience for the post is nil as against requirement of having ten years experience. Therefore, the writ petitions at the instance of the writ petitioners were not maintainable. It is pointed out that objections preferred by the writ petitioner were considered and the reply was web hosted, which fact was deliberately suppressed in the Writ Petitions. Therefore, the writ petitioners were not entitled to any relief in exercise of extraordinary discretionary jurisdiction of the Court under Article 226 of the Constitution of India. It is contended that learned Single Judge could not have issued a futile writ. In support of aforesaid submissions, reliance has been placed on decisions of Hon'ble Supreme Court in SURESH VS. VASANTH AND OTHERS', AIR 1972 SC 1680 and K.D.SHARMA VS. STEEL AUTHORITY OF INDIA LTD. AND ORS.', 2008 AIR SCW 6652. 11. Learned counsel for the appellants in W.A.No.6751/2017 and W.A.No.6/2018 has adopted the submissions made on behalf of the Institute and has pointed out that the objections preferred by the writ petitioners were duly dealt with by the Committee before issuance of the Final Select List. 12. Learned counsel for the respondents / writ petitioners, while inviting the attention of this Court to the notification, has submitted that there is no requirement of experience of ten years and the same is a preferred qualification. 12. Learned counsel for the respondents / writ petitioners, while inviting the attention of this Court to the notification, has submitted that there is no requirement of experience of ten years and the same is a preferred qualification. It is pointed out that the basic qualification required for the post is a BDS degree which the writ petitioners possess and therefore, the writ petitioners were eligible for consideration. It is also contended that selection committee which conducted the interview on 18.10.2016, was constituted in contravention of Bye Law No.12(c) of the Bye laws of the Institute and both the selected candidates are above 40 years of age and there is no relaxation with regard to their age. It is also submitted that out of the five members who signed the proceedings of the Committee, two of them were ineligible. Therefore, no sanctity can be attached to the recommendation of the selection committee. 13. It is also pointed out that on publication of the provisional list, the writ petitioners had submitted objections on 05.12.2016 as well as on 09.12.2016. However, it is fairly admitted that appellant in W.A.No.6449/2017 did not get the benefit of relaxation in age as at the relevant time he was 35 years of age. It is contended that the order passed by learned Single Judge does not call for any interference. 14. We have considered the submissions made on both sides and have perused the record. Bye Law No.12(c) of the Bye laws of the Institute provides for constitution of the selection committee. Bye Law No.12(c) of the Bye laws of the Institute is extracted below for the facility of reference: 15. The criteria for selection on the post of Assistant Surgeon (BDS) is provided in the Cadre and Recruitment Rules of the Institute. The relevant extract of Recruitment Rules reads as under: "KIDWAI MEMORIAL INSTITUTE OF ONCOLODY, BANGALORE - 560 029 CADRE AND RECRUITMENT RULES FOR THE POST OF ASSISTANT SURGEON (BDS) As per approval of the Governing Council Meeting held on 12.5.2014." 16. Thus, a candidate was required to be a holder of Degree in BDS of any University and the preference was required to be given to those candidates who have worked with various health camps in an Oncology based Institute. The Rules further provide that the candidate who has work experience of ten years in Oncology Institute may be preferred. 17. Thus, a candidate was required to be a holder of Degree in BDS of any University and the preference was required to be given to those candidates who have worked with various health camps in an Oncology based Institute. The Rules further provide that the candidate who has work experience of ten years in Oncology Institute may be preferred. 17. Before proceeding further, we may advert to the contention made by the learned Senior counsel as well as learned counsel for the appellants that the writ petitioners had no locus to file the writ petition as they were not qualified for consideration for selection to the post in question. From perusal of the requirement laid down in the Cadre and Recruitment Rules, it is evident that the basic qualification which was prescribed was of Degree in BDS. The Rule further provides that the candidates who have work experience of ten years in Oncology Institute or of having attended various medical camps in Oncology Institute shall be entitled to preference. The requirement prescribing the experience was not a mandatory qualification. Therefore, the contention of the appellants that the writ petitioners were not eligible for consideration for appointment to the post of Assistant Surgeon (BDS) does not deserve acceptance. Accordingly, the same is repelled. 18. Now we may advert to the core issue involved in these appeals namely whether it was open to the writ petitioners who had participated in the selection process, to turn around and challenge the process of selection. The Hon'ble Supreme Court in 'MARRIPATI NAGARAJA AND OTHERS VS. GOVERNMENT OF ANDRA PRADESH AND OTHERSS.', (2007) 11 SCC 522 has held that if a candidate participates in the process of selection without any demur, such a candidate cannot be permitted to challenge the process of selection. Similar view has been taken in 'DHANANJAY MALIK AND OTHERS VS. STATE OF UTTARANCHAL AND OTHERS', (2008) 4 SCC 171 and it has been held that a candidate who has participated in the process of selection without any demur is estopped from challenging the selection criteria as well as the process of selection on the ground that the same was not made as per the rules and the prescribed educational qualifications were not adhered to. Similar view was taken in 'MADRAS INSTITUTE OF DEVELOPMENT STUDIES AND ANOTHER' (2016) 1 SCC 454 , 'D.SARJAKUMARI VS. Similar view was taken in 'MADRAS INSTITUTE OF DEVELOPMENT STUDIES AND ANOTHER' (2016) 1 SCC 454 , 'D.SARJAKUMARI VS. R.HELEN THILAKOM AND ORS.', AIR 2017 SC 4582 and 'UTTAR PRADESH PUBLIC SERVICE COMMISSION' (2018) 7 SCC 254 . 19. In the backdrop of aforesaid well settled legal principles, we may advert to the facts of the case in hand. In the instant case, admittedly the writ petitioners as well as other candidates appeared in an interview held on 18.10.2016. Thereafter, the provisional select list was published on 28.11.2016. It is pertinent to mention here that the writ petitioners maintained stoic silence from the date of interview till the publication of provisional select list. Only on publication of provisional select list, having been found that their names do not figure in the said list, the writ petitioners filed objections on 05.12.2016 as well as on 09.12.2016 which were dealt with by the Institute and were rejected vide Annexure-R3. 20. Thus, from the above narration of facts, it is evident that the writ petitioners had participated in the process of selection without any demur and without preferring any objection till the publication of provisional select list. From the aforesaid conduct of the writ petitioners, it can safely be gathered that they were fence sitters and were waiting for the outcome of the process of selection. The writ petitioners having participated in the process of selection, cannot be permitted to turn around and challenge the process of selection at this point of time. Even otherwise, their conduct disentitles them to any discretionary relief in the extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India. 21. So far as the finding recorded by the learned Single Judge with regard to adoption of dual standards / yardsticks for assessing candidates, suffice it to say that no such pleading was made by the writ petitioners in the petition. It is also trite law that a pleading of malafides is required to be pleaded and the writ petitioners had not pleaded the malafides and had not impleaded any of the Officers of the Institute as respondent. Therefore, the finding that the Director malafide altered the criteria to favour all the selected candidates, could also not have been recorded in the absence of any pleadings. Therefore, the finding that the Director malafide altered the criteria to favour all the selected candidates, could also not have been recorded in the absence of any pleadings. Even otherwise, the amendment in the Cadre and Recruitment Rules was made on 12.05.2014 and at that time Dr.Vijay Kumar was the Director, whereas, the present Director was appointed on 12.01.2015. Therefore, the aforesaid finding even otherwise cannot be sustained. In view of our conclusion that it was not open for the writ petitioners who had participated in the process of selection, without any demur, to turn around and to challenge the same, it is not necessary for us to advert to the question whether or not the selection committee was properly constituted. The issue of relaxation of age also pails into insignificance. For the aforementioned reasons, common order dated 20.09.2017 passed by learned Single Judge in W.P.No.12907/2017 and in W.P.No.13427/2017 is hereby set aside. In the result, appeals are allowed.