Karnataka High Court

Dr. Raghavendra H K vs The State Of Karnataka on 16 January, 2021

Author: 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 -

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

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.

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.

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

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

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.

(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

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)

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

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

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

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

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

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.

"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

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:

"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

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,

(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

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

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

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

(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




            Professor     in    the   Department          of

            English   -      Bengaluru,    if   no     other

            candidate between the age 29 and 40

            is   more        meritorious        than    the

            petitioner.