Madras Institute Of Development Studies And Another v. K. Sivasubramaniyan And Others

M. Yusuf Eqbal, J.— Leave granted. These appeals by special leave are directed against the judgment and order dated 9-1-2012 passed by the High Court of Judicature of Madras in K. Sivasubramaniyan v. Madras Institute of Development Studies Writ Appeal No. 167 of 2008, order dated 9-1-2012 (Mad), whereby the order 2006 SCC OnLine Mad 1046 , (2007) 1 CTC 207 passed by the learned Single Judge dismissing the writ petition filed by Respondent 1 herein has been reversed and the order dated 14-8-2006 of the appellant Institute approving appointment of Respondents 2 to 6 (namely, Dr S. Anandhi, Dr Brinda Viswanathan, Dr L. Venkatachalam, Dr Ajit Menon and Dr Kripa Ananthpur) to the post of Associate Professor has been quashed.

2. The facts of the case lie in a narrow compass. The appellant Institute issued an advertisement calling for applications for the positions of Professor, Associate Professor and Assistant Professor. The said advertisement contained a description of the three qualifications required to be possessed by the candidate. Several persons including Respondent 1-writ petitioner submitted application for appointment to the post of Associate Professor. The shortlisting of the candidates was done by the Director of the Institute in consultation with the Chairman after informal consultation with Senior Professors for evolving the criteria for shortlisting of the candidates. The Selection Committee consisting of three noted Social Scientists as contemplated under the Rules conducted interviews and recommended a panel of five names. Thereafter, the Executive Council by order dated 14-8-2006 approved the appointment of various persons to the posts of Professor, Associate Professor and Assistant Professor. Since the Institute had advertised for three posts, the first three i.e Respondents 2, 3 and 4 were initially approached for the post of Associate Professor.

3. Respondent 1-writ petitioner challenged the aforesaid decision dated 14-8-2006 on the ground inter alia that the selection was not done strictly as per the qualifications mentioned in the advertisement and that Respondent 1-writ petitioner having fulfilled all the requirements ought to have been selected to one of the three vacancies of Associate Professor. It was also alleged by Respondent 1-writ petitioner that there has been infraction of the recruitment rules.

4. The appellant Institute denied and disputed the allegation regarding infraction of the recruitment rules and further denied and disputed the allegations of irregularities in the selection process.

5. The learned Single Judge of the Madras High Court dismissed 2006 SCC OnLine Mad 1046 , (2007) 1 CTC 207 the writ petition by a reasoned judgment on two grounds. Firstly, it was held that the writ petition was not maintainable inasmuch as the Institute is not “State” within the meaning of Article 12 of the Constitution of India. The learned Single Judge secondly held that there is no discrepancy with regard to the qualification mentioned in the advertisement and the service rules. Finally, the learned Single Judge held that Respondent 1-writ petitioner having taken part in the selection process without raising any objection cannot challenge the selection process after being declared unsuccessful by not including his name in the selection list.

6. Aggrieved by the said judgment, the respondent preferred a writ appeal before the Division Bench of the Madras High Court. The Division Bench allowed the appeal and reversed the order passed by the learned Single Judge. On the issue of maintainability of writ petition, the Division Bench in the impugned order Writ Appeal No. 167 of 2008, order dated 9-1-2012 (Mad) held that the duties being performed by the appellant Institute are in the nature of public function and, therefore, it would come within the ambit of “State” under Article 12 of the Constitution of India. The Division Bench on the merit of the case came to the conclusion that there is a variation in the advertisement from the prescribed rules and as such the entire selection process is vitiated in law. According to the Division Bench, the advertisement issued by the Institute and the constitution of Selection Committee are totally contrary to the Rules, consequently, the order dated 14-8-2006 approving the appointment of the respondent is liable to be quashed. Hence, the present appeals by special leave.

7. We have heard the learned counsel appearing for the appellants and the contesting respondents including the selected candidates.

8. Mr N.L Rajah, learned counsel appearing for the appellant Institute, assailed the judgment passed by the Division Bench on various grounds. On the question of maintainability of the writ petition, it was submitted that the appellant Institute was not created by any statute. It was founded as a trust and no part of the corpus of the Institution was held by the Government. The participation of the State in the affairs of the Institution is not under any special statute. The Division Bench, therefore, has not correctly appreciated the facts and the law while coming to the conclusion that the appellant Institute is State. Mr Rajah, learned counsel further contended that although the grievance of the writ petitioner is that he has not been selected but no relief has been prayed to consider him to the said post. The relief claimed in the writ petition is only to quash the decision by which the aforesaid respondents have been selected.

9. Lastly, the learned counsel submitted that the respondent writ petitioner participated in the selection process without challenging the alleged variance in the advertisement and the rules and without challenging the constitution of the Committee. He cannot thereafter challenge the same after being declared unsuccessful for the said post.

10. On the other hand, Ms V. Mohana, learned Senior Counsel appearing for the respondent writ petitioner, supported the finding recorded by the Division Bench of the High Court. The learned counsel contended that the qualifications prescribed in the advertisement are totally in adherence with the Rules. According to the learned counsel, the entire proceeding for appointment is vitiated by reason of variance in the advertisement and the rules and also irregularity in the constitution of the Committee who conducted interview for selection of the candidates.

11. Indisputably, the Madras Institute of Development Studies (MIDS) is governed by its Faculty Recruitment Rules, 2001. The Rules apply to the selection and appointment of persons to the post of Assistant Professor (Research Associates), Associate Professor (Fellow) and Professor. We are here concerned with the qualifications required for appointment of a person to the post of Associate Professor. The Rules read as under:

“Associate Professor (Rule)

Good academic record with a doctoral degree or equivalent published work with five years of experience of teaching and/or research.”

The qualification mentioned for the post of Associate Professor in the advertisement reads as under:

“Associate Professor (ADVT)

Good academic record with a doctoral degree in Social Sciences, with at least 5 (five) published papers in reputed national/international journals/edited volume—or equivalent thereof—and experience of research/teaching at University/national level research institutions.”

From a reading of the necessary qualifications mentioned in the Rules and the advertisement, it is manifest that a candidate must have a good academic record with a doctoral degree with 5 years' experience in research/teaching at University or national level research institute.

12. The contention of Respondent 1 that the shortlisting of the candidates was done by a few Professors bypassing the Director and the Chairman, does not appear to be correct. From a perusal of the documents available on record it appears that shortlisting of the candidates was done by the Director in consultation with the Chairman and also Senior Professors. Further, it appears that the Committee constituted for the purpose of selection consists of eminent Scientists, Professor of Economic Studies and Planning and other members. The integrity of these members of the Committee has not been doubted by the respondent writ petitioner. It is well settled that the decision of the academic authorities about the suitability of a candidate to be appointed as Associate Professor in a research institute cannot normally be examined by the High Court under its writ jurisdiction. Having regard to the fact that the candidates so selected possessed all requisite qualifications and experience and, therefore, their appointment cannot be questioned on the ground of lack of qualification and experience. The High Court ought not to have interfered with the decision of the Institute in appointing Respondents 2 to 4 on the post of Associate Professor.

13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. It was only after he was not selected for appointment that he turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post.

14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.

15. In G. Sarana v. University of Lucknow (1976) 3 SCC 585 , 1976 SCC (L&S) 474, a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held:

“15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal case AIR 1957 SC 425 where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p. 432, para 9)

‘9. … It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.’”

16. In Madan Lal v. State of J&K (1995) 3 SCC 486 , 1995 SCC (L&S) 712 , (1995) 29 ATC 603, similar view has been reiterated by the Bench which held that:

“9. 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 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 petitioners 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 Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC 285 , 1986 SCC (L&S) 644 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 protest 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.”

17. In Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576 , (2011) 1 SCC (L&S) 256, this Court reiterated the principle laid down in the earlier judgments and observed:

“16. We also agree with the High Court 2008 SCC OnLine Pat 321 , (2009) 1 AIR Jhar R 1015 that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner 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 petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.”

18. In Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC 309 , (2013) 3 SCC (L&S) 129, recently a Bench of this Court following the earlier decisions held as under:

“24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge 2012 SCC OnLine Utt 521 and the Division Bench 2012 SCC OnLine Utt 766 of the High Court committed grave error by entertaining the grievance made by the respondents.”

19. So far as the finding recorded by the Division Bench on the question of maintainability of the writ petition on the ground that the appellant Institute is “State” within the meaning of Article 12 of the Constitution, we are not bound to go into that question, which is kept open.

20. Taking into consideration the entire facts of the case and the law laid down by this Court in a catena of decisions, we are of the definite opinion that the Division Bench has committed grave error in law by passing the impugned judgment reversing the order passed by the learned Single Judge.

21. We, therefore, allow these appeals, set aside the impugned judgment Writ Appeal No. 167 of 2008, order dated 9-1-2012 (Mad) and order passed by the Division Bench in Writ Appeal No. 167 of 2008 and hold that the respondent-writ petitioner has no merit in the case inasmuch as there is no illegality in the decision dated 14-8-2006 taken by the appellant Institute for appointment of aforesaid Respondents 2 to 6 to the post of Associate Professor.