Dr Beere Nagaraju vs Indian Institute Of Science
2023 Latest Caselaw 1218 Kant

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                                                         WA No. 4005 of 2019



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 8TH DAY OF FEBRUARY, 2023
                                             PRESENT
                              THE HON'BLE MR JUSTICE ALOK ARADHE
                                                AND
                          THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                              WRIT APPEAL NO. 4005 OF 2019 (S-RES)
                   BETWEEN:

                   DR. BEERE NAGARAJU
                   AGED ABOUT 46 YEARS
                   S/O SRI B. VENKATANARAYANA
                   CHIEF PHARMACIST
                   RAILWAY HOSPITAL
                   SOUTH WESTERN RAILWAY
                   BENGALURU - 560 023.

Digitally signed   RESIDING AT NO.99, EWS
by B A KRISHNA
KUMAR              1ST STAGE, 2ND B MAIN ROAD
Location: High
Court of
                   YELAHANKA NEW TOWN
Karnataka          BENGALURU - 560 064.                     ...APPELLANT

                   (BY PROF. RAVI VERMA KUMAR, SR. COUNSEL A/W
                       SRI GIRIDHAR GANGOTHRI, ADV., FOR
                       SMT. G. SHARADA BAI, ADV.)

                   AND:

                   1.     INDIAN INSTITUTE OF SCIENCE
                          C V RAMAN ROAD
                          BENGALURU - 560 012
                          BY ITS REGISTRAR.

                   2.     DIRECTOR
                          INDIAN INSTITUTE OF SCIENCE
                          C V RAMAN RAOD
                          BENGALURU - 560 012.

                   3.     UNION OF INDIA
                          TO BE REPRESENTED BY ITS
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                                            WA No. 4005 of 2019



     SECRETARY, MINISTRY OF HUMAN
     RESOURCES DEVELOPMENT
     DEPARTMENT OF HIGHER
     EDUCATION, GOVERNMENT OF INDIA
     EA BUREAU, SHASTRY BHAVAN
     NEW DELHI - 110 001.           ...RESPONDENTS

(BY SRI S.S. RAMDAS, SR. COUNSEL FOR
    SRI PRADEEP S SAWKAR, ADV., FRO C/R-1 & R-2;
    CGC FOR R-3)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO REVERSE THE
IMPUGNED ORDER OF THE LEARNED SINGLE JUDGE DATED
30/10/2019 IN WP NO.16133/2019 (S-RES) AND ISSUE A WRIT,
ORDER OR DIRECTION IN THE NATURE OF MANDAMUS TO THE
RESPONDENTS TO CONSIDER APPELLANT FOR APPOINTMENT TO
THE POST OF ASSISTANT REGISTRAR IN THE OFFICE OF
RESPONDENT 1 UNDER ST CATEGORY AND APPOINT HIM TO THE
SAID POST FORTHWITH AND ETC.

    THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This intra court appeal is filed by the unsuccessful

petitioner assailing the order dated 30.10.2019 passed by the

learned Single Judge of this Court in W.P.No.16133/2019.

2. Heard the learned Counsel for the parties and also

perused the material available on record.

3. Brief facts of the case as revealed from the records

that may be necessary for the purpose of disposal of this

WA No. 4005 of 2019

appeal are, respondent no.1 issued an advertisement on

05.10.2018 inviting applications for the post of Assistant

Registrar. In response to the said advertisement, the appellant

had submitted his application. Written test was held by the

respondent on 06.02.2019, and thereafter, the appellant was

short-listed for interview that was to be held on 08.02.2019.

On 08.02.2019, the appellant was interviewed by the selection

committee and on 09.02.2019, the respondent had published

the selection list which stated that under Scheduled Tribe

category, no candidate was found suitable, and accordingly, the

post was directed to be re-notified. Being aggrieved by the

same, the appellant had approached this Court in

W.P.No.16133/2019 with a prayer to quash the selection list at

Annexure-G dated 09.02.2019 in so far as it pertains to one

post of Assistant Registrar under Scheduled Tribe category,

wherein it was stated that "none found suitable and to be re-

notified", and also prayed for issuance of a writ of mandamus

directing respondent no.1 to appoint the appellant as Assistant

Registrar under the Scheduled Tribe quota pursuant to the

advertisement dated 05.10.2018 issued by it vide Annexure-A.

The said writ petition was dismissed by the learned Single

WA No. 4005 of 2019

Judge vide the impugned order dated 30.10.2019 and being

aggrieved by the same, the appellant is before this Court.

4. Learned Senior Counsel appearing for the appellant

submitted that the advertisement did not provide for any

minimum marks in the interview, and therefore, the selection

committee was not justified in prescribing the minimum marks

of '80'. He submitted that the interview was not a qualifying

test and it was only a selection test, and therefore, minimum

marks cannot be prescribed. He also submits that there is no

material on record to show that the selection committee had

fixed the minimum marks at '80' prior to the interview and

even if they have so fixed, they had no power or authority to

fix the minimum marks when the advertisement and

Regulations do not provide for the same. He also submitted

that the appellant belongs to Scheduled Tribe category, and

therefore, in his case the selection committee ought to have

reduced the qualifying marks. He submits that since the

appellant had passed in the written test, the selection

committee ought to have selected the best out of the qualified

candidates who had appeared for the interview. He submits

that the selection committee by fixing minimum marks at the

WA No. 4005 of 2019

stage of interview, have changed the rules of the game which is

not permissible. In support of his arguments, he has relied

upon the following judgments:

(i) MAHARASHTRA SRTC VS RAJENDRA BHIMRAO MANDVE - (2001)10 SCC 51;

(ii) K.MANJUSREE VS STATE OF A.P. - (2008)3 SCC 512;

(iii) P.K.RAMACHANDRA IYER VS UNION OF INDIA - (1984)2 SCC 141;

(iv) UMESH CHANDRA SHUKLA VS UNION OF INDIA - (1985)3 SCC 721;

(v) DURGACHARAN MISRA VS STATE OF ORISSA - (1987)4 SCC 646;

(vi) D.V.BAKSHI VS UNION OF INDIA - (1993)3 SCC 663;

(vii) HEMANI MALHOTRA VS HIGH COURT OF DELHI - (2008)7 SCC 11;

(viii) T.N.COMPUTER SC BEd. GOVT. WELFARE SOCIETY VS HIGHER SECONDARY SCHOOL COMPUTER TEACHERS ASSN.

- (2009)14 SCC 517.

5. Per contra, learned Counsel for the respondent submits

that respondent no.1 is one of the premier institution of the

country which has been maintaining high standard in education.

He submits that though the advertisement and regulations do

WA No. 4005 of 2019

not provide for minimum marks to be secured in the interview,

the selection committee always can fix the minimum marks in

order to maintain high standards of the institution. He submits

that the proceedings of the meeting of the selection committee

have been placed before this Court along with the memo dated

17.11.2021 which would go to show that the committee had

decided to fix the minimum marks in the interview and the said

decision of the selection committee is approved by the

Registrar and the Deputy Director of the Institution. He submits

that in the absence of any minimum marks provided either in

the advertisement or under the Regulations, it was always open

for the selection committee to fix the minimum marks keeping

in view the nature and responsibilities of the post. In support of

his arguments, he has relied upon the following judgments:

(i) YOGESH YADAV VS UNION OF INDIA & OTHERS - (2013)14 SCC 623;

(ii) RAM SHARAN MAURYA & OTHERS VS STATE OF U.P. & OTHERS - 2020 SCC OnLine SC 939;

(iii) MUNICIPAL CORPORATION OF DELHI VS SURENDER SINGH & OTHERS - (2019)8 SCC 67;

(iv) UNION OF INDIA & OTHERS VS S.VINOD KUMAR & OTHERS - (2007)8 SCC 100.

WA No. 4005 of 2019

6. A perusal of the meeting proceedings which is

produced by the respondent along with the memo dated

17.11.2021 before this Court would go to show that the

selection committee had decided to fill the vacant posts based

on the scale of 100 and the committee had also decided that

any candidate scoring less than 70 will not be considered

suitable. It is also seen that all the candidates who were

selected to the post of Assistant Registrar under different

category had all secured more than 80 marks. The records

would disclose that the notification was issued by the

respondents to fill up 10 posts of Assistant Registrar and out of

the same, one post was reserved for Scheduled Tribe category.

Three Scheduled Tribe candidates had appeared in the written

test that was conducted on 06.02.2019 and all the three

candidates were short-listed for interview. However, only the

appellant was permitted to appear for the interview since the

other two candidates had failed to produce the required

certificates at the time of interview. In the interview, the

appellant had scored only 59 marks, and therefore, the

selection committee had considered him as not suitable for the

post. It is under these circumstances, a decision was taken to

re-notify the post.

WA No. 4005 of 2019

7. Learned Senior Counsel appearing for the appellant

has strenuously contended before us that the selection

committee had no authority to prescribe the minimum marks

and the same would amount to changing the rules of the game.

In support of this argument, he had relied on the following

judgments:

(i) MAHARASHTRA SRTC VS RAJENDRA BHIMRAO MANDVE - (2001)10 SCC 51;

(ii) K.MANJUSREE VS STATE OF A.P. - (2008)3 SCC 512;

(iii) HEMANI MALHOTRA VS HIGH COURT OF DELHI - (2008)7 SCC 11;

(iv) T.N.COMPUTER SC BEd. GOVT. WELFARE SOCIETY VS HIGHER SECONDARY SCHOOL COMPUTER TEACHERS ASSN.

- (2009)14 SCC 517.

8. Though we are in respectful agreement with the

aforesaid judgments on which reliance has been placed by the

appellant, we are afraid that the said judgments would be

applicable to the facts and circumstances of the present case. It

is trite law that judgments can be relied as precedents only if

the same can be made applicable to the facts and

circumstances of the case on hand.

WA No. 4005 of 2019

9. Undisputedly, the advertisement issued by respondent

no.1-Institution did not provide for any such minimum marks to

be secured in the interview. In the absence of any such bench

mark for selection stipulated in the advertisement, if the

selection committee has thought it fit to fix the bench mark

keeping in mind the responsibility the post carries and also the

high standard of education in respondent no.1-Institution which

is one of the premier institution of the country, no fault can be

found in the same and this Court in exercise of its power of

judicial review, cannot interfere with the same unless some

mala fides are pointed out. No such mala fides have been

pointed out by the learned Counsel for the appellant in the

present case. It is not the case of the appellant that the

selection committee had fixed the bench mark with an intention

to favour any candidate nor it is his case that anybody who had

secured less than the bench mark prescribed were selected to

the post of Assistant Registrar.

10. The Hon'ble Supreme Court in the case of Yogesh

Yadav's case supra, at paragraph 13 to 16 has observed as

under:

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WA No. 4005 of 2019

"13. The instant case is not a case where no minimum marks are prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in the written test would qualify for the interview. The entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After conducting the interview, marks of the written test and viva voce were to be added. However, since a benchmark was not stipulated for giving the appointment. What is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does not amount to changing the "rules of the game". The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. The fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case [Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] .

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WA No. 4005 of 2019

14. The decision taken in the instant case amounts to shortlisting of candidates for the purpose of selection/appointment which is always permissible. For this course of action of CCI, justification is found by the High Court noticing the judgment of this Court in State of Haryana v. SubashChander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] . In that case, Rule 8 of the Punjab Civil Service (Judicial Branch) Service Rules was the subject-matter of interpretation. This Rule stipulated consideration of candidates who secured 45% marks in aggregate. Notwithstanding the same, the High Court recommended the names of candidates who had secured 55% marks and the Government accepted the same. However, later on it changed its mind and the High Court issued mandamus directing appointment to be given to those who had secured 45% and above marks instead of 55% marks. In appeal, the judgment of the High Court was set aside holding as under: (SCC pp. 226-27, para 12) "12. ... It is contended that the State Government have acted arbitrarily in fixing 55% as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with

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WA No. 4005 of 2019

another. That is why Rule 10(ii), Part C speaks of 'selection for appointment'. Even as there is no constraint on the State Government in respect of the number of appointment to be made, there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high standards of competence to fix a score which is much higher than the one required for mere eligibility."

15. Another weighty reason given by the High Court in the instant case, while approving the aforesaid action of CCI is that the intention of CCI was to get more meritorious candidates. There was no change of norm or procedure and no mandate was fixed that a candidate should secure minimum marks in the interview. In order to have meritorious persons for those posts, fixation of minimum 65% marks for selecting a person from the OBC category and minimum 70% for general category, was legitimate giving a demarcating choice to the employer. In the words of the High Court:

"In the case at hand, as we perceive, the intention of the Commission was to get more meritorious candidates. There has been no change of norm or procedure. No mandate was fixed that a candidate should secure minimum marks in the interview. Obtaining of 65% marks was thought as a guideline for selecting the candidate from the OBC category. The objective is

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WA No. 4005 of 2019

to have the best hands in the field of law. According to us, fixation of such marks is legitimate and gives a demarcating choice to the employer. It has to be borne in mind that the requirement of the job in a Competition Commission demands a well-structured selection process. Such a selection would advance the cause of efficiency. Thus scrutinised, we do not perceive any error in the fixation of marks at 65% by the Commission which has been uniformly applied. The said action of the Commission cannot be treated to be illegal, irrational or illegitimate."

16. It is stated at the cost of repetition that there is no change in the criteria of selection which remained of 80 marks for written test and 20 marks for interview without any subsequent introduction of minimum cut-off marks in the interview. It is the shortlisting which is done by fixing the benchmark, to recruit best candidates on rational and reasonable basis. That is clearly permissible under the law. (M.P. Public Service Commission v. Navnit Kumar Potdar)"

11. In S.Vinod Kumar's case, the Hon'ble Supreme Court

held that fixation of cutoff marks cannot be said to be arbitrary

so as to offend the principles of equity enshrined under Article

14 of the Constitution of India and the power of the employer

to fix the cutoff marks can neither be denied nor disputed. If

the cutoff marks were fixed on a rational basis, no exception

thereto can be taken. In the said judgment it has been also

held that if the competent authority does not find any suitable

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WA No. 4005 of 2019

candidate and if some of the vacancies remain unfilled, such a

decision cannot be termed as arbitrary and the candidate has

no vested right to claim appointment to the post.

12. In Surender Singh's case, wherein the Division Bench

of the High Court taking into consideration the unfilled

vacancies out of the notified vacancies directed selection of

private respondents whose marks were marginally lower than

the last selected candidate, the Hon'ble Supreme Court

observed that the Division Bench exceeded its jurisdiction while

exercising power of judicial review in the matter of selection

process by evolving its own criteria and substituting the criteria

adopted by the recruiting agency. In the said case, it was held

that the recruiting agency cannot be compelled to fill all the

posts even if persons of desired merit are not available.

13. In Ram Sharan Maurya's case, wherein minimum

qualifying marks was fixed after the examination was over, the

Hon'ble Supreme Court held that if the ultimate object is to

select the best available talent and there is a power to fix the

minimum qualifying marks, in view of the law laid down by the

Hon'ble Supreme Court in the case of STATE OF HARYANA VS

SUBASH CHANDER MARWAHA - (1974)3 SCC 220, STATE OF

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WA No. 4005 of 2019

U.P. VS RAFIQUDDIN - 1987 Supp SCC 401, MUNICIPAL

CORPORATION OF DELHI VS SURENDER SINGH - (2019)8 SCC

67 and JHARKHAND PUBLIC SERVICE COMMISSION VS MANOJ

KUMAR GUPTA - SLP(C).No.13752/2020, we do not find any

illegality or impropriety in fixation of cutoff at 65-60% vide

order dated 07.01.2019.

14. From the aforesaid pronouncements of the Hon'ble

Supreme Court, it is clear that if the selection committee has

taken a decision to fix the bench mark, the same cannot be

held to be bad in law, unless it is shown that such decision was

taken with a mala fide intention. If the decision to fix the bench

mark is taken solely in furtherance of the object of finding best

available candidate or talent, the same cannot found fault with

and this Court in exercise of its power of judicial review, cannot

substitute or interfere with such decision of the Selection

Committee.

15. Article 16 of the Constitution of India provides for

equality of opportunity in the matter of public employment.

Learned Counsel for the appellant has failed to point out denial

of any equal opportunity to the appellant by the selection

committee. Under the circumstances, we do not find any

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WA No. 4005 of 2019

illegality in the decision taken by the respondent to re-notify

the post. The appellant who was one of the aspiring candidate

to the advertised post, cannot claim any right over the post and

the relief in the nature of writ of mandamus directing the

respondents to appoint the appellant to the post of Assistant

Registrar reserved for Scheduled Tribe Category cannot be

granted. Under the circumstances, we do not find any merit in

this writ appeal, and therefore, we are not inclined to interfere

with the order passed by the learned Single Judge which is

impugned herein. Accordingly, the writ appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

KK