Karnataka High Court

Sri Ashok D Sanadi vs The Chief Secretary on 18 November, 2023

Bench: M.Nagaprasanna

                           1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF NOVEMBER, 2023       R
                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

         WRIT PETITION No.25010 OF 2022 (GM - RES)


BETWEEN:

SRI ASHOK D. SANADI
S/O LATE DINAKAR
AGED ABOUT 59 YEARS
RESIDING AT C/O SHIVANAGOUDA PATIL
NO.205, BHEL LAYOUT
PATTANAGERE (BDA), R.R.NAGAR
BENGALURU - 560 098.
                                             ... PETITIONER
(BY SRI RANGANATH S.JOIS, ADVOCATE A/W
    SRI N.KRISHNE GOWDA, ADVOCATE)

AND:

1.   THE CHIEF SECRETARY
     GOVERNMENT OF KARNATAKA
     VIDHANASOUDHA
     BENGALURU - 560 001.

2.   CHAIRPERSON
     SELECTION COMMITTEE
     MINISTER-IN-CHARGE
     DEPARTMENT OF WOMEN AND
     CHILD DEVELOPMENT
     VIDHANA SOUDHA
     BENGALURU - 560 001.
                             2



3.   THE PRINCIPAL SECRETARY
     DEPARTMENT OF WOMEN AND
     CHILD DEVELOPMENT AND
     EMPOWERMENT OF DIFFERENTLY ABLED
     AND SENIOR CITIZENS
     GATE NO.3, 1ST FLOOR
     M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI
     BENGALURU - 560 001.

4.   THE DIRECTOR
     DEPARTMENT OF WOMEN AND
     CHILD DEVELOPMENT
     M.S.BUILDING
     BENGALURU - 560 001.

5.   SRI K.NAGGANA GOWDA
     S/O LATE ERAGOWDA
     3RD CROSS, V.V.NAGAR
     KALLAHALLI
     MANDYA - 571 401.
                                            ... RESPONDENTS

(BY SRI SPOORTHY HEGDE N., HCGP FOR R1 TO R4;
    SRI G.B.SHARATH GOWDA, ADVOCATE FOR R5)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
PROCEEDINGS DATED 21/10/2022 AND SUBSEQUENT ORDERS
PASSED ON THE STRENGTH OF SAID PROCEEDINGS AS
ANNEXURE-H; DIRECT THE R2 TO CONDUCT THE FRESH
SELECTION PROCESS ACCORDANCE WITH LAW AND PROCEDURE
PRESCRIBED UNDER THE SAID ACT.
                                3



     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 06.11.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-


                             ORDER

The petitioner is before this Court calling in question

Notification dated 21-10-2022 issued by the 3rd respondent in

selecting and appointing the 5th respondent as the Chair Person of

the Karnataka State Commission for Protection of Child Rights ('the

Commission' for short).

2. The facts, in brief, adumbrated are as follows:

The petitioner and the 5th respondent became applicants

pursuant to a notification issued by Government of Karnataka on

31-01-2022 calling for applications from eligible candidates for

appointment to the post of Chairperson of the Commission. The

applications lead to scrutiny of documents so submitted by both the

petitioner and the 5th respondent. The 5th respondent comes to be

appointed as the Chairperson of the Commission. The petitioner

claims to have come to know of it only when it was published in the

newspaper and then applies for all the requisite documents of

selection or proceedings of selection under the Right to Information

Act, 2005, and having secured them, has knocked at the doors of

this Court calling in question entire proceedings that took place

leading to the appointment of the 5th respondent as Chairperson of

the Commission and has also sought consequential prayer seeking

annulment of appointment of the 5th respondent and conduct of

fresh selection process in accordance with law. This Court on

15-12-2022 entertaining the writ petition had made the selection

and appointment of the 5th respondent to be subject to the result of

the petition.

3. Heard Sri Ranganath S.Jois, learned counsel appearing for

the petitioner, Sri Spoorthy Hegde, learned High Court Government

Pleader appearing for respondents 1 to 4 and Sri G.B. Sharath

Gowda, learned counsel appearing for respondent No.5.

4. The learned counsel Sri Ranganath S.Jois, appearing for

the petitioner would vehemently contend that the 5th respondent is

least qualified to hold the post of Chairperson of the Commission. It

is his submission that the 5th respondent is a political representative

of the Bharatiya Janata Party and does not have or has not worked

in the field of child rights in comparison to the credentials of the

petitioner who is practicing as an Advocate and has been

completely involved in the cases concerning juvenile justice

appearing before the Juvenile Justice Board from 2009 to 2017 as

one of the panel counsel of the District Legal Services Authority,

Bengaluru. It is his submission that comparative credentials of the

two would clearly lead to the annulment of appointment of the 5th

respondent and appointment of the petitioner. He would seek

quashment of entire proceedings and the resultant appointment of

the petitioner.

5. On the other hand, the 5th respondent/appointee has filed

his statement of objections. The learned counsel Sri G.B. Sharath

Gowda appearing for the 5th respondent would contend that the 5th

respondent long before the selection process itself had demitted

membership of a political party and he is also in the field of

advocating child rights for a long time and would submit that all the

documents that are necessary for appointment of the 5th

respondent are considered by the selection committee and

appointment is made. He would submit that none of the grounds

that are urged in the petition are tenable for the appointment of the

5th respondent to be set aside.

6. The State has also filed its statement of objections. The

learned counsel appearing for respondents 1 to 4 has contended

that the wisdom of the selection committee in appointing the 5th

respondent cannot be interfered with under Article 226 of the

Constitution of India unless the appointment is contrary to the

statute or arbitrariness is writ large in the appointment. He would

submit that neither of the two is present in the case at hand.

Therefore, the petition should be dismissed.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record. In furtherance whereof what falls for my

consideration is "whether the appointment of the 5th

respondent as Chairperson of the Commission is vitiated on

account of statutory aberration?"

8. The Government of India notifies the Commissions for

Protection of Child Rights Act, 2005 (hereinafter referred to as 'the

Act' for short). Section 17 deals with constitution of State

Commission for Protection of Child Rights. Section 17 reads as

follows:

"17. Constitution of State Commission for Protection of Child Rights.--(1) A State Government may constitute a body to be known as the .........(name of the State) Commission for Protection of Child Rights to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this chapter.

(2) The State Commission shall consist of the following Members, namely:--

(a) a Chairperson who is a person of eminence and has done outstanding work for promoting the welfare of children; and

(b) six Members, out of which at least two shall be women, from the following fields, to be appointed by the State Government from amongst persons of eminence, ability, integrity, standing and experience in,--

            (i)     education;
            (ii)    child health, care, welfare or child development;

(iii) juvenile justice or care of neglected or marginalized children or children with disabilities;

(iv) elimination of child labour or children in distress;

            (v)     child psychology or sociology; and
            (vi)    laws relating to children.

(3) The headquarter of the State Commission shall be at such place as the State Government may, by notification, specify."

(Emphasis supplied)

Section 18 deals with appointment of Chairperson and other

Members. Section 18 reads as follows:

"18. Appointment of Chairperson and other Members.--The State Government shall, by notification, appoint the Chairperson and other Members:

Provided that the Chairperson shall be appointed on the recommendation of a three Member Selection Committee constituted by the State Government under the Chairmanship of the Minister-in-charge of the Department dealing with children."

Section 19 deals with term of office and conditions of service of

Chairperson and other Members. Section 36 of the Act deals with

the power of the State Government to make Rules. It reads as

follows:

"36. Power of State Government to make rules.--

(1) The State Government may, by notification, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

(a) terms and conditions of service of the Chairperson and Members of the State Commission and their salaries and allowances under Section 20;

(b) the procedure to be followed by the State Commission in the transaction of its business at a meeting under sub- section (4) of Section 10 read with Section 24;

(c) the powers and duties which may be exercised and performed by the Secretary of the State Commission under sub-section (2) of Section 21;

(d) the salary and allowances and other terms and conditions of service of officers and other employees of the State Commission under sub-section (3) of Section 21; and

(e) form of the statement of accounts and other records to be prepared by the State Commission under sub-section (1) of Section 30.

(3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such State Legislature consists of one House, before that House."

(Emphasis supplied)

In terms of the power conferred under Section 36 of the Act, the

State Government notifies the Rules viz., the Karnataka State

Commission for Protection of Child Rights Rules, 2010 (hereinafter

referred to as 'the Rules' for short). Certain provisions of the Rules

become germane to consider the issue in the lis. Rule 3 of the Rules

reads as follows:-

"3. Eligibility for appointment as Chairperson and other Members. - (1) No person having any past record of violation of human rights especially child rights or criminal conviction shall be eligible for appointment as Chairperson or other Members of the Commission. The Chairperson or the Members of the Commission, the person shall fulfill the following criteria:-

(a) the person shall have at least five years of work experience in the field of child rights, child protection and advocacy for upholding the rights of children;

(b) the person shall not be an office-bearer or member of any political party.

(2) The persons selected for the post of Chairperson/ Members shall not hold any other post or be affiliated to any Governmental, quasi-governmental, public sector, non-governmental, private organization or hold any other position whether for profit or not."

(Emphasis supplied)

Rule 3 deals with eligibility for appointment as Chairperson and

other Members. Rule 6 deals with the term of office of Chairperson

and other Members. It reads as follows:

"6. Term of office of Chairperson and other Members. - (1) The Chairperson shall, unless removed from office under Section 7 read with Section 24 of the Act, hold office for a period of three years, or till the age of sixty five years, whichever is earlier.

(2) Every Member shall, unless removed from office under Section 7 read with Section 24 of the Act, hold office for a period of three years, or till the age of sixty years, whichever is earlier.

(3) Notwithstanding anything contained in sub-rule (1) or sub-rule (2), -

(a) a person who has held the office of chairperson shall be eligible for renomination; and

(b) a person who has held the office of a Member shall be eligible for renomination as a member or nomination as a Chairperson:

Provided that a person who has held an office of Chairperson or Member for two terms, in any capacity, shall not be eligible for renomination as Chairperson or, as Member.

(4) If the Chairperson is unable to discharge his functions owing to illness or other incapacity, the State Government shall nominate any other member to act as Chairperson and the Member so nominated shall hold office of Chairperson until the Chairperson resumes office or for the remainder of his term.

(5) The Chairperson or a Member may, by writing under his hand addressed to the State Government, resign his office at any time.

(6) Any vacancy caused by death, resignation or any other reason shall be filled up in accordance with the provisions of sub-section (2) of Section 8 of the Act."

Section 17 of the Act supra and Rule 3 of the Rules form the

fulcrum of the issue in the lis. Rule 3 directs that no person having

any past record of violation of human rights especially child rights

or criminal conviction shall be eligible for appointment as

Chairperson or other Members. This is the first rung of

disability. The Chairperson shall fulfill certain conditions as

depicted in the Rule that a person shall have at least five years of

work experience in the field of child rights, child protection and

advocacy for upholding the rights of children. This is the rung of

eligibility. A person who is sought to be appointed as a

Chairperson or a Member should not be an office bearer or Member

of any political party. This is the second rung of disability. The

person selected for the post of Chairperson or Members should not

hold any other post of governmental, quasi governmental, public

sector, non-governmental or private organization whether for profit

or not, is another rung of disability, inter alia. In terms of the

bedrock of eligibility and ineligibility as depicted under the Rules,

the case at hand requires consideration.

9. Government of Karnataka issues a notification for

appointment of person in terms of sub-Section (1) of Section 17 of

the Act. The term of the Chairperson was depicted to be 3 years

and the maximum age limit of any applicant was at 62 years. As

obtaining under Rule 3, the notification also contained that one

should have work experience in the field of child rights, child

protection and advocacy for upholding the rights of children. The

petitioner and the 5th respondent became applicants. The petitioner

is not selected but the 5th respondent is. Contending that the

petitioner comes to know of the appointment of the 5th respondent

only through the media, knocks at the doors of this Court, calling in

question the appointment of the 5th respondent as Chairperson,

projecting a two pronged attack - one projecting the ineligibility

on the score that the 5th respondent is an office bearer or a Member

of a political party and therefore, his appointment has to be

annulled. The next is that the petitioner has better experience for

more than 5 years in the field of child rights, child protection and

advocacy for upholding the rights of children and in juxtaposition,

the 5th respondent does not have such qualification.

10. I deem it appropriate, to deal with the first pronged

attack i.e., whether the 5th respondent has, on the date of selection

and appointment was an office bearer, or a member of any political

party. The 5th respondent has filed his statement of objections. He

would, no doubt accept that he was earlier a member of the

Bharatiya Janata Party, but resigned from the primary membership

of that party on 01-09-2020. He has produced documents to

demonstrate his resignation from the primary membership of the

party appended to the statement of objections which depicts that

he has on 01-09-2020 resigned from the post and the party. The

Notification for selection, as observed hereinabove, is issued on

31-01-2022, close to 15 months after the resignation of the 5th

respondent from the political party. Therefore, the first pronged

attack that the 5th respondent is an office bearer or member of a

political party tumbles down, as, on the date of issuance of the

notification the 5th respondent was neither an office bearer, nor a

member of any political party.

11. The second pronged attack is with regard to comparative

experience of 5 years in the field of child rights or child protection

or advocacy for upholding rights of children. The petitioner claims

that he has been in the panel of the District Legal Services

Authority from 2009 to 2017 and has fought various cases which

concern juvenile justice and has worked extensively on behalf of

juveniles. In juxtaposition, the 5th respondent has produced

plethora of documents seeking to demonstrate that he is also in the

field of child rights from 2001. Certificates of several participations

in symposiums, awards and other encomiums by way of certificates

given to the 5th respondent form part of the statement of

objections. Apart from the same, the 5th respondent has also placed

on record several documents that would drive home that the 5th

respondent is fighting for child rights or has been advocating the

cause of children and their rights for the last 20 years.

12. The Selection Committee has looked into the credentials

produced by both the petitioner and the 5th respondent and has

found it fit to choose the 5th respondent as a Chairperson in terms

of the analysis of the Selection Committee. The Selection

Committee is constituted under the statute. It is a three member

committee. The analysis and consideration of documents of both

the petitioner and the 5th respondent is by the Selection Committee.

The Selection Committee has chosen the 5th respondent to be a

better experienced candidate than the petitioner to hold the post of

Chairperson of the Commission. This Court exercising its

jurisdiction under Article 226 of the Constitution would not weigh

the credentials qua experience of both the petitioner and the 5th

respondent, and come to conclude that the experience of the

petitioner far outweighs the experience of the 5th respondent. This

is not the discretion exercisable by this Court under Article 226 of

the Constitution of India.

13. This Court would not sit in the arm chair of experts and

decide who is better qualified, qua their experience and obliterate

an appointment made by the Selection Committee, virtually sitting

in appeal over the findings and wisdom of the Selection Committee.

The discretion available to this Court is exercisable only in certain

circumstances, qua challenge to an appointment made by the

Selection Committee, which would be arbitrariness and such

arbitrariness should be palpable or demonstrable. The other would

be that the selection and appointment should suffer from certain

statutory aberrations. I do not find any of the two circumstances

existing in the challenge to the appointment of the 5th respondent.

14. Reference being made to the judgment of the Apex Court

in the case of TAJVIR SINGH SODHI v. STATE OF JAMMU AND

KASHMIR1 in the circumstances, becomes apposite. The Apex

Court has held as follows:

"Selection Process for Public Employment : Interference by Courts:

"65. Before proceeding further, it is necessary to preface our judgment with the view that Courts in India generally avoid interfering in the selection process of public employment, recognising the importance of maintaining the autonomy and integrity of the selection process. The Courts recognise that the process of selection involves a high degree of expertise and discretion and that it is not appropriate for Courts to substitute their judgment for that of a selection committee. It would be indeed, treading on thin ice for us if we were to venture into reviewing the decision of experts who form a part of a selection board. The law on the scope and extent of judicial review of a selection process and results thereof, may be understood on consideration of the following case law:

i) In Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (1990) 1 SCC 305 : AIR 1990 SC 434, this Court clarified the scope of judicial review of a selection process, in the following words:

2023 SCC OnLine SC 344

"9...It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the selection committees and to scrutinise the relative merits of the candidates. Whether the candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved malafides affecting the selection etc....."

ii) In a similar vein, in Secy. (Health) Deptt. Of Health & F.W. v. Dr. Anita Puri, (1996) 6 SCC 282, this Court observed as under as regards the sanctity of a selection process and the grounds on which the results thereof may be interfered with:

"9. ... It is too well settled that when a selection is made by an expert body like the Public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, the courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made and established. It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation......."

iii) This position was reiterated by this Court in M.V.

Thimmaiah v. Union Public Service Commis-sion, (2008) 2 SCC 119, in the following words:

"21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion...

xxx

30. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions....."

iv)    Om       Prakash    Poplai    and     Rajesh     Kumar
       Maheshwari v. Delhi    Stock    Exchange     Association

Ltd., (1994) 2 SCC 117, was a case where an appeal was filed before this Court challenging the selection of members to the Delhi Stock Exchange on the ground that the Selection Committee formed for the aforesaid

purpose, arbitrarily favoured some candidates and was thus, against Article 14. This Court rejected the allegation of favouritism and bias by holding as under:

"5. ...the selection of members by the Expert Committee had to be done on the basis of an objective criteria taking into consideration experience, professional qualifications and similar related factors. In the present cases, we find that certain percentage of marks were allocated for each of these factors, namely, educational qualifications, experience, financial background and knowledge of the relevant laws and procedures pertaining to public issues etc. Of the total marks allocated only 20 per cent were reserved for interviews. Therefore, the process of selection by the Expert Committee was not left entirely to the sweet-will of the members of the Committee. The area of play was limited to 20 per cent and having regard to the fact that the members of the Expert Committee comprised of two members nominated by the Central Government it is difficult to accept the contention that they acted in an unreasonable or arbitrary fashion......"

66. Thus, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene.

67. Thus, Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. In light of

the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process,.........."

(Emphasis supplied)

The Apex Court in its exposition notices that the Court, while

exercising the power of judicial review, cannot step into the shoes

of the Selection Committee or assume an appellate role to examine

whether the marks awarded by the Selection Committee was not

corresponding to their performance in the test. The issue before

the Apex Court was awarding of marks by the Selection Committee

was erroneous. The Apex Court holds that the constitutional Courts

cannot interfere in awarding of marks. I deem it appropriate to

paraphrase the words 'awarding of marks' to that of

consideration of 'relative experience' in the case at hand. Even