Karnataka High Court
Dr C E Mahantesh vs The Principal Secretary on 15 March, 2023
Bench: Alok Aradhe, Vijaykumar A Patil
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE VIJAYKUMAR A. PATIL
W.A. No.6749/2017
C/W
W.A. No.6499/2017, W.A.No.6739/2017
W.A.No.6751/2017
& W.A. No.6/2018 (S-RES)
IN W.A. No.6749/2017:
BETWEEN:
KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY
DR. M.H. MARIGOWDA ROAD
BENGALURR-560 029
REP. BY ITS DIRECTOR.
...APPELLANT
(BY SRI. M.V. SESHACHALA, SR. COUNSEL FOR
SRI. ARAVIND V. CHAVAN, ADV.,)
AND:
1. DR. LEENA .S
W/O G. KIRAN RAO SAVANTH
AGED ABOUT 36 YEARS
R/AT NO.1153, 2ND MAIN
7TH BLOCK, HOSAKEREHALLI
BANASHANKARI III STAGE, BENGALURU-560 085.
2. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
2
DEPT. OF MEDICAL EDUCATION
VIDHANA SOUDHA
BENGALURU-560 001.
3. DR. MAHANTESH A.S.
S/O A.B. ANGADI
AGED ABOUT 43 YEARS
R/AT NO.3035, 14TH CROSS
6TH MAIN, BANASHANKARI II STAGE
BENGALURU-560 070.
...RESPONDENTS
(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R2
SRI/SMT. SHRIVIDYA ZIRALI, ADV., FOR
SRI. SHIVAPRASAD SHANTHANAGOUDAR, ADV., FOR R3
ADVOCATE FOR R1 NIL)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO ALLOW THE APPEAL AND SET
ASIDE THE ORDER PASSED BY THE LEARNED SINGLE
JUDGE IN WP 12907/2017 DATED 20/9/2017.
IN W.A. No.6499/2017:
BETWEEN:
DR. C.E. MAHANTESH
S/O CHANNAVEERAPPA E
C/O SHANTHAMMA
AGED ABOUT 35 YEARS
R/AT NO.239, 5TH CROSS, K.G. NAGAR
BYADRAHALLI, BENGALURU-560 091.
...APPELLANT
(BY SRI. VENKATESH P. DALWAI, ADV.,)
AND:
1. THE PRINCIPAL SECRETARY
DEPARTMENT OF HEALTH AND FAMILY
WELFARE (MEDICAL EDUCATION)
ROOM NO.301, 3RD FLOOR
VIDHANA SOUDHA, BENGALURU-560 001.
3
2. KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY
GOVERNMENT OF KARNATAKA
AUTONOMOUS INSTITUTION
DR. M.H. MARIGOWDA ROAD
BENGALURU-560 029
REPRESENTED BY ITS DIRECTOR.
3. DR. A.S. MAHANTESH
S/O A.B. ANGADI
AGED ABOUT 42 YEARS
R/AT NO.3035, 14TH CROSS, 6TH MAIN
BANASHANKARI 2ND STAGE
BENGALURU-560 070.
4. DR. RASHMI
D/O C. RUDRAIAH
AGED ABOUT 33 YEARS
RESIDING AT NO.39, 1ST MAIN
1ST CROSS, BASAVA LAYOUT
B.S. PALYA, KENGERI CHECK POST
BENGALURU-560 060.
...RESPONDENTS
(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1
SRI. M.V. SESHACHALA, SR. COUNSEL FOR
SRI. ARAVIND CHAVAN, ADV., FOR R2
MS/SMT. SHRIVIDYA ZIRALI, ADV., FOR
SRI. SHIVAPRASAD SHANTHANAGOUDAR, ADV., FOR R3
SRI. A.V. NISHANTH, ADV., FOR R4)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 20/9/2017 PASSED IN THE WRIT PETITION
13427/2017.
IN W.A. No.6739/2017
BETWEEN:
KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY
DR. M.H. MARIGOWDA ROAD
GOVERNMENT OF KARNATAKA
4
AUTONOMOUS INSTITUTION
BENGALURU-560 029
REP. BY ITS DIRECTOR.
...APPELLANT
(BY SRI. M.V. SESHACHALA, SR. COUNSEL FOR
SRI. ARAVIND V. CHAVAN, ADV.,)
AND:
1. DR. RASHMI
D/O MR. C. RUDRAIAH
AGED ABOUT 33 YEARS
R/AT NO.39, 1ST MAIN
1ST CROSS, BASAVA LAYOUT
B.S. PALYA, KENGERI CHECK POST
BENGALURU-560 060.
2. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
OF HEALTH AND FAMILY WELFARE
DEPT. OF MEDICAL EDUCATION
ROOM 301, 3RD FLOOR
VIDHANA SOUDHA, BENGALURU-560 001.
3. DR. MAHANTESH A.S.
S/O A.B. ANGADI
AGED ABOUT 43 YEARS
R/AT NO.3035, 14TH CROSS
6TH MAIN, BANASHANKARI II STAGE
BENGALURU-560 070.
4. DR. MAHANTESH C.E.
S/O CHANNAVEERAPPA E
C/O SHANTHAMMA
AGED MAJOR
R/AT NO.239, 5TH CROSS
K.G. NAGAR, BYADARAHALLI
BENGALURU-560 091.
...RESPONDENTS
(BY SRI. A.V. NISHANTH, ADV., FOR R1
SRI. B. RAJENDRA PRASAD, HCGP FOR R2
5
MS/MRS. SHRIVIDYA ZIRALI, ADV., FOR
SRI. SHIVAPRASAD SHANTHANAGOUDAR, ADV., FOR R3
SRI. NAGAIAH, ADV., FOR R4)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE
APPEAL AND SET ASIDE THE ORDER PASSED BY THE
LEARNED SINGLE JUDGE IN WP 13427/2017 DATE
20/9/2017.
IN W.A. No.6751/2017
BETWEEN:
DR. A.S. MAHANTESH
S/O A.B. ANGADI
AGED ABOUT 43 YEARS
R/A NO.3035, 14TH CROSS
6TH MAIN, BANASHANKARI II STAGE
BENGALURU-560 070.
...APPELLANT
(BY MS/MRS. SHRIVIDYA ZIRALI, ADV., FOR
SRI. SHIVAPRASAD SHANTHANAGOUDAR, ADV.,)
AND:
1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF MEDICAL EDUCATION
VIDHANA SOUDHA, BENGALURU-560 001.
2. THE DIRECTOR
KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY
DR. M.H. MARIGOWDA ROAD
BENGALURU-560029.
3. DR. S. LEENA
W/O G. KIRAN RAO SAVANTH
AGED ABOUT 36 YEARS
R/A NO.1153, 2ND MAIN
6
7TH BLOCK, HOSAKEREHALLI
BANASHANKARI III STAGE
BENGALURU-560 085.
...RESPONDENTS
(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1
SRI. C.R. GOULAY, ADV., FOR R3
SRI. M.V. SESHACHALA, SR. COUNSEL FOR
SRI. ARAVIND V. CHAVAN, ADV., FOR R2)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
WRIT APPEAL, SET ASIDE THE ORDER DATED 20/09/2017
PASSED BY THE LEARNED SINGLE JUDGE IN WRIT
PETITION NO.12907/2017 AND DISMISS WRIT PETITION
NO.12907/2017.
IN W.A. No.6/2018
BETWEEN:
DR. A.S. MAHANTESH
S/O A.B. ANGADI
AGED ABOUT 43 YEARS
R/AT NO.3035, 14TH CROSS
6TH MAIN, BANASHANKARI II STAGE
BENGALURU-560070.
...APPELLANT
(BY MS/MRS. SHRIVIDYA ZIRALI, ADV., FOR
SRI. SHIVAPRASAD SHANTHANAGOUDAR, ADV.,)
AND:
1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF HEALTH AND FAMILY,
MEDICAL EDUCATION
ROOM NO.301, 3RD CROSS
VIDHANA SOUDHA, BENGALURU-560 001
2. THE DIRECTOR
KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY
7
DR. M.H. MARIGOWDA ROAD
STATE OF KARNATAKA
BENGALURU-560 029.
3. DR. RASHMI
AGED ABOUT 33 YEARS
D/O MR. C. RUDRAIAH
R/AT NO.39, IST MAIN
I CROSS, BASAVA LAYOUT, B.S.PALYA
KENGERI CHECK POST, BENGALURU-560 060.
4. DR. C.E. MAHANTESH, MAJOR
S/O E. CHANNAVEERAPPA
C/O SANTHAMMA
R/AT NO.239, 5TH CROSS, K.G. NAGAR
BYADRAHALLI, BANGALORE-560 091.
...RESPONDENTS
(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1
SRI. M.V. SESHACHALA, SR. COUNSEL FOR
SRI. ARAVIND V. CHAVAN, ADV., FOR R2
SRI. A.V. NISHANTH, ADV., FOR R3
ADVOCATE FOR R4 NIL)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS
WRIT APPEAL, SET ASIDE THE ORDER DATED 20/09/2017
PASSED BY THE LEARNED SINGLE JUDGE IN WRIT
PETITION NO.13427/2017 AND DISMISS WRIT PETITION
NO.13427/2017.
THESE WRIT APPEALS COMING ON FOR FURTHER
HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE
FOLLOWING:
8
COMMON JUDGMENT
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,
9
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 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. 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 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. 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:
"FOR THE POST OF ASST.
PROFESSORS/LECTURERS/RESEARCH
ASSISTANTS/ RESIDENTS
(i) The Director : Chairman
(ii) A Nominee of the Director of
Medical Education : Member
(iii)A Nominee of the Vice-Chancellor
of Bangalore University : Member
(iv)Deputy Secretary to Government
of Karnataka, Health & F.W. : Member
(v) One Expert in the concerned
Subject to be nominated by the
Chairman of the Governing
Council : Member
(vi)Head of the Department in the
concerned subject of the
Institute : Member
(vii) Administrative Officer : Member-
Secretary"
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)
Sl. Category Minimum Age Limit Scale
No. of the Qualification of pay
post
01. Assistant a) Should be 40 years 28100-
Surgeon holder of 50100
(BDS) degree in BDS Age limit
of any relaxable in
university special
established by circumstances
law in India for which
b) Preference reasons to be
will be given to recorded in
those who have writing
worked with
various health
camps in an
Oncology based
Institute.
c) Experience of
at least 10
years work
experience in
Oncology
Institute may
be preferred
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. 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. 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. 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.
Sd/-
JUDGE
Sd/-
JUDGE
SS/RV
