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IN THE HIGH COURT OF KARNATAKA

AT BANGALORE

DATED THIS THE 27TH DAY OF JULY, 2012

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

W.P. NO.8085/2008C/W.

W.P. NO.15880/2007 (S-RES)

W.P. NO.8085/2008

BETWEEN:

DR J SUKUMARAGED ABOUT 52 YEARSS/O N S JAYARAJSCIENTIST D MULBERRY PATHOLOGY ANDMICROBIOLOGY SECTION,MORICULTURE DIVISION,KARNATAKA STATE SERICULTURERESEARCH AND DEVELOPMENT INSTITUTETHALAGHATTAPURA,KANAKAPURA ROAD,BANGALORE-560 062 ... PETITIONER

(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR M/S P.S.RAJGOPAL ASSOCIATES, ADVOCATES)

AND:

1. STATE OF KARNATAKABY ITS SECRETARYCOMMERCE AND INDUSTRIESDEPARTMENTVIKASA SOUDHA,DR. AMBEDKAR VEEDHIBANGALORE-560 001

2. COMMISSIONER FOR SERICULTUREDEVELOPMENT ANDDIRECTOR OF SERICULTUREGOVERNMENT OF KARNATAKA5TH FLOOR, M.S.BUILDINGDR. AMBEDKAR VEEDHIBANGALORE-560 001

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3. DIRECTORKARNATAKA STATE SERICULTURERESEARCH AND DEVELOPMENTINSTITUTE, THALAGATTAPURA,KANAKAPURA ROADBANGALORE-560 062

4. S. KRISHNA KUMAR, IAS (Retd.) AGED ABOUT 62 YEARS FORMERLY ADVISOR TO GOVERNOR OF KARNATAKA, R/AT NO 118, 7TH CROSS, RMV II STAGE, BANGALORE-560 094

5. DR. C.S.PATIL S/o LATE SHIVARUDRAPPA GOWDA AGED 54 YEARS, SCIENTIST D& HEAD, SILK WORM PATHOLOGY SECTION K.S.S.R.D.I, THALAGATTAPURA BANGALORE,

6. DR.D.BONGALE DIVISION CHIEF (MORICULTURE) KARNATATA STATE SERICULTURE RESEARCH & DEVELOPMENT INSTITUTE, KANAKAPURA ROAD BANGALORE-560 062 ..RESPONDENTS

(BY SRI. JAGADEESH MUNDARAGI, AGA FOR R1 AND R2;SRI.K.G.SHANTAPPA, ADVOCATE FOR R-3; SRI. M.S.BHAGWATH, Sr. COUNSEL FOR SRI.K.N.JAYAPRAKASH,ADVOCATE FOR R5; SRI. H.C. SHIVARAMU, ADVOCATE FOR R6),,

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OFTHE CONSTITUTION OF INDIA PRAYING TO CALL FOR THERECORDS LEADING TO THE ISSUE OF GOVT. ORDER DT.24.3.2008 OF THE R1 GOVERNMENT AT ANNEXURE M AND THENOTIFICATION DT. 17.5.2008 OF THE R2 AT ANNEXURE NEXAMINE THEIR CORRECTNESS, AND SET THEM ASIDEHOLDING THEM AS ILLEGAL, ARBITRARY AND MALAFIDE.

WP NO 15880 OF 2007

BETWEEN:

NARAYANA GOWDAS/O LATE NAGE GOWDAAGED ABOUT 50 YEARSSCIENTIST, HEAD MULBERRYAGRONOMY SECTION, MORICULTURE DIVISIONKARNATAKA STATE SERICULTURERESEARCH AND DEVELOPMENT INSTITUTETHALAGATPURA,BANGALORE –560 062 ... PETITIONER

(BY SRI. S V NARASIMHAN, ADVOCATE)

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AND:

1. STATE OF KARNATAKAREP BY ITS SECRETARY TOGOVERNMENTCOMMERCE AND INDUSTRIESDEPARTMENT AND THE CHAIRMAN,GOVERNING COUNCILKSSSRDI, M.S.BUILDINGBANGALORE-01

2. THE COMMISSIONERDEVELOPMENT AND DIRECTORSERICULTURE DEPARTMENTAND THE CHAIRMAN,FINANCE COMMITTEE,KARNATAKA STATE SERICULTURERESEARCH AND DEVELOPMENTINSTITUTE, THALAGHATPURABANGALORE-02 ... RESPONDENTS

(BY SRI.K.G.SHANTHAPPA, ADVOCATE FOR R2;SRI.JAGADEESH MUNDARAGI, AGA FOR R1)

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF

THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE

RESPONDENTS TO CONSIDER THE CASE OF THE PETITIONER

FOR APPOINTMENT TO THE POST OF DIRECTOR IN THE R2

INSTITUTE PURSUANT TO THE NOTIFICATION DT. 16.7.2007

VIDE ANX-E, OF R2 AND TO APPOINT HIM TO THE SAID POST IN

CONSIDERATION OF HIS QUALIFICATION AND EXPERIENCE

AND WITH ALL CONSEQUENTIAL BENEFITS.

THESE WRIT PETITIONS HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 13.02.2012 AND COMING ON FOR

PRONOUNCEMENT OF ORDER, THIS DAY THE COURT PASSED

THE FOLLOWING:

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O R D E R

Petitioner in WP No.8085/2008 is seeking for

setting aside the Government Order No.CI 10 SLK 2006

dated 24.3.2008 passed by first respondent at

Annexure-M and notification No.KSSRD/EST

/AD/2/2008-09 dated 17.5.2008 issued by second

respondent at Annexure-N with a direction to first

respondent to appoint the petitioner as Director of

Karnataka State Sericulture Research and Development

Institute on the basis of the recommendations sent by

the Selection Committee on 8.10.2001.

2. Petitioner in WP No.15880/2007 is seeking for

Writ of Mandamus to respondents to consider his case

for appointment to the post of Director in second

respondent - Institute pursuant to notification

No.KSSRDI:EST:AD:2:2007-08 dated 16.7.2007

Annexure-E and to appoint him to the said post with all

consequential benefits.

3. Heard Sri P.S. Rajagopal, learned Senior

counsel appearing on behalf of petitioner in WP

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No.8085/2008, Sri.Jagadish Mundaragi, learned

Additional Government Advocate, for respondents 1 & 2,

Sri.K.G.Shanthappa, learned counsel appearing for

respondent No.3- Institute, Sri M.S. Bhagwath, learned

counsel appearing on behalf of respondent No.5 and Sri

P.S. Manjunath, learned counsel appearing on behalf of

respondent No.6 and Sri.S.V.Narasimhan, learned

counsel appearing for petitioner in WP No.15880/2007.

Perused the impugned orders, statement of objections

filed by respondents as also the original files made

available by the learned Government Advocate.

4. The grievance of the petitioner in this Writ

Petition is: first respondent has yielded to pressures

during the last few years in making appointment to the

post of Director of Karnataka State Sericulture Research

and Development Institute (hereinafter referred to as

‘Institute’ for the sake of brevity). According to the

petitioner, the Cadre and Recruitment Regulations,

1997 (hereinafter referred to as `C & R-1997' for the

sake of brevity) prescribed the age limit for the said post

as 50 years and first respondent had issued a

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notification on 23.2.2006 by continuing

Dr.U.D.Bongale, sixth respondent herein as Director,

ignoring the Rules, who functioned in that capacity from

3.5.2006 to 4.1.2007 and thereafter, one more

notification dated 5.1.2007 came to be issued

continuing him as Director of the Institute, which was

questioned by one Dr.S.R.Katti in Writ Petition

No.453/2007 and during the pendency of the Writ

Petition, first respondent issued a notification dated

9.2.2007 amending the Rules by increasing the age limit

for appointment to the post of Director as 55 years and

this court by order dated 26.6.2007 allowed the Writ

Petition with a direction to the first respondent to

appoint a candidate as Director of the Institute in

accordance with Rules; Writ Appeal No.461/2007 filed

challenging said order was disposed of by a Division

Bench of this Court on 14.6.2007 with a direction that

regular appointment to the post of the Institute be made

within four months.

5. Thereafter, first respondent issued its

approval dated 26.6.2007 Annexure-E whereunder

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amendment to the Rules came to be approved under

which the age limit for the post of Director was

prescribed as "below 53 years for internal candidates

on the last date fixed for receipt of application”;

pursuant thereto second respondent issued a

notification dated 15.7.2007 Annexure-F calling for

applications to fill up the post of the Director of the

Institute to which petitioner and 14 others applied and

selection committee selected the petitioner and

recommended on 8.10.2007 to the first respondent to

appoint the petitioner as Director of the Institute.

6. It is contended in the Writ Petition that on

account of fifth respondent sending a representation to

first respondent to increase the maximum age to 55

years, the first respondent withdrew the letter dated

9.2.2007 Annexure-B and letter dated 26.6.2007

Annexure-E by Government Order dated 24.3.2008

Annexure-M on the ground that same was not in

accordance with resolution and accepted the resolution

passed by the Institute in its 44th Governing Council

meeting held on 18.12.2006 and thereby holding the

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eligibility criteria for the internal candidates for the post

of Director in the institute as "below 53 years as on

the date on which the post of Director became

vacant". Thereafter, the first respondent has called for

applications for the post of Director in the Institute vide

Notification dated 7.5.2008 Annexure-N. Hence,

petitioner has questioned Annexure-M and Annexure-N

in this Writ Petition by contending that once selection

process has commenced it could not have been stalled

or restarted by changing the rules of the Game.

7. Petitioner in WP No.15880/2007 has

contended that he is possessing requisite qualification

for being appointed to the post of Director of the

Institute and he has not been called for the interview

though four other candidates are called for interview

and he would become over aged by next recruitment

and contends he has completed Phd. in Sericulture and

he is more suitable than any other candidates in the

Department. On these grounds, he has sought for a

Writ of Mandamus to consider his case for appointment

to the post of Director.

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8. It is the contention of Sri P.S.Rajagopal, that

pursuant to the amendment to the Rules being

approved by the first respondent on 26.6.2007

notification dated 15.7.2007 Annexure-F came to be

issued inviting applications for the post of Director of

the Institute and petitioner submitted his application

along with 14 other candidates and Selection Committee

under the Chairmanship of then Vice Chancellor of the

University of Agricultural Sciences, Bangalore

scrutinised the applications and found that petitioner

and three other candidates were eligible for the post as

per the proceedings of the Selection committee dated

18.9.2007 Annexure-G. Pursuant to the said

proceedings, petitioner was called for interview and

name of the petitioner was recommended on 8.10.2007;

and, on receipt of such recommendation first

respondent ought to have accepted said

recommendation by issuing appropriate orders

appointing him; he submits it was not done since one of

the candidate namely Dr.C.S.Patil, fifth respondent

herein submitted a representation dated 26.11.2007 as

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per Annexure-J requesting first respondent to increase

the age limit for appointment to 55 years and sought for

re-conducting of the interview and pursuant to the said

representation, the first respondent called for comments

from the Commissioner for Sericulture - second

respondent who by communication dated 13.12.2007

Annexure-K recommended to the State Government to

reject the representation of 5th respondent and further

recommended to expedite the process of appointing

Director to the Institute as per the recommendation

already made. However, first respondent instead of

issuing order of appointment, appointed one

Dr.U.D.Bongale on adhoc basis until further orders

which came to be set aside in WP No.453/2007 and

affirmed in WA No.461/2007.

9. He contends that 3rd respondent-Institute is

registered under the Karnataka Societies Registration

Act, 1960 and the Memorandum of Association of the

Institute would go to show that appointment of Director

of third respondent-institute will be made by the

Government under Clause 14 and 19A of the

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Memorandum of Association and State Government is

alone the appointing authority. He would contend that

reason given by the first respondent to withdraw

Annexure-B and Annexure-E was that it was not in

consonance with resolution passed by the Governing

Council of 3rd respondent-institute at its 44th meeting

held on 18.12.1996. According to Sri P.S. Rajgopal,

Governing Council's view is irrelevant and petitioner is

not challenging the said approval dated 26.6.2007

Annexure-E and contends that under sub clause (4) of

clause 10 of the Memorandum of Association of the 3rd

respondent-Institute the Governing Council is having

powers only to perform the functions as enumerated

therein and the proceedings of the Governing council

would have no bearing or impact on appointment of

Director to the Institute is concerned, since the

Government is the appointing authority. He would

draw the attention of the Court to the note sheets of the

Government produced at Annexure-N to contend that

5th respondent has no locus standi to question

petitioner's appointment since he had participated in

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the selection process and had acquiesced himself. He

also contends that first respondent has issued

Annexure-M at the instance and behest of the fifth

respondent as could be seen from the notings in the

order sheet and particularly the noting of the Advisor to

the Governor at internal page 35 at paragraph 263

which would go to show that for the purposes of

bringing fifth respondent within the zone of

consideration, amendment already approved under

Annexure-B dated 9.2.2007 has been withdrawn on

24.3.2008 vide Annexure-M.

10. He contends that Government having initiated

selection process, could not have interdicted in the

middle of selection process at the instance of fifth

respondent by changing the rules of the game. He

would further contend that exercise of power by

Government for cancellation of selection cannot be

arbitrary, but has to be reasonable. Merely because no

indefeasible right is vested in a candidate, it does not

mean that Government can cancel such process

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arbitrarily. In support of his submission he relies upon

the following judgments:

(1) (2008) 4 SCC 171

(2) (2006) 6 SCC 395

(3) (2008) 3 SCC 512

(4) (2000) 9 SCC 283

(5) (1993) 1 SCC 154

On these grounds he submits that Writ Petition be

allowed and prayer sought for in the writ petition be

granted.

11. Per contra, learned Addl. Government

Advocate submits that under Rule 6 sub Rule (3)(b) of

the KCS (General Recruitment) 1977, first anomaly

committee formed to look into anomalies had in its

meeting held on 06.11.2002 recommended for age

relaxation for internal candidates by number of years

the applicant held the post or five years, whichever is

less. The second anomaly committee vide resolution

dated 09.08.2006 and 22.09.2006 proposed for

amendment to the existing C & R Rules 1987 as "below

50 years for external candidates and below 53 years for

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internal candidates". Based on requests from Senior

Scientists and findings of the anomaly committee, the

institute at its 44th Special Governing Council Meeting

held on 18.12.2006, resolved age relaxation as 53 years

on the date on which the vacancy for the post of

Director accrued in case of internal candidates. This

resolution which was forwarded to the Government for

approval came to be modified by fixing the maximum

age limit as 55 years on the date the post became

vacant in respect of internal candidates as per approval

dated 09.02.2007- Annexure-B. However, the State at

the instance of some scientists including the petitioner

re-fixed the age limit as 53 years instead of 55 years

and the age to be reckoned was fixed as on the last date

fixed for receipt of applications instead of the date on

which the post of Director became vacant by order dated

26.6.2007, Annexure-E. It was noticed by the

Government that as per 44th Special Governing Council

Resolution of the Institute dated 18.12.2006 which was

followed by notification dated 9.2.2007 (Annexure-B), all

senior Scientists including the petitioner were eligible to

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apply for the post of Director and no injustice was being

caused to anyone. Hence, it was found by the State

Government that there was no justification for the

petitioner to approach the State by his representation

dated 22.2.2007 to reduce the age limit from 55 years to

53 years and it was found that to eliminate competition,

this was done. It is also stated that after the Selection

Committee made its recommendations after re-

amendment to Rules as approved by the Government on

26.6.2007 Annexure-E when the state was under

Governor’s Rule, a detailed examination of factual

aspects was made and after securing the opinion from

the Law department and on noticing serious lapses in

the process of selection decided to withdraw the letters

dated 9.2.2007 and 26.6.2007 and approved the

resolution dated 18.12.2006 passed by the institute at

its 44th Special Governing Council Meeting. He

contends that Governing Council is empowered to act

and amend the rules and regulations as enumerated

under Rule 10 of the Institute’s Rules and Regulations.

He contends that Governing Council is vested with such

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power and defends the impugned orders. He would

contend that pursuant to Government Order dated

28.3.2008 Annexure-M notification dated 17.5.2008

Annexure-N inviting applications have been issued

calling for filling the post of Director of the Institute and

interview was held on 14.7.2008 and all the six

candidates who had applied, participated in the

interview, including the petitioner herein and fair

opportunity has been given to all the eligible candidates

and as such petitioner cannot be construed as aggrieved

person and none of his legal rights are violated; other

contentions raised in the Writ Petition contrary to facts

have been denied.

12. Mr. Bhagwath contends that third respondent

institute is registered under the provisions of Karnataka

Societies Registration Act, 1960 and Memorandum of

Association and Rules, Regulations of the institute has

been duly approved by the Government. He contends

under sub-rules (2) & (3) of Rule 10, the Governing

Council of the Institute is empowered to add, alter or

amend the Rules and Regulations and bye-laws of the

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institute subject to approval by the Government. He

contends in exercise of such power Rules, Regulations

and bye-laws of the institute known as "Karnataka State

Sericulture Research and Development Institute Bye-

laws, 1981" came to be made and bye-law 23 provides

that only approval of the proposed amendment to any

Rules or bye-laws by the Governing Council, shall be

incorporated in the respective rules. He contends that

Regulations known as "The Karnataka State Sericulture

Research and Development Institute (Cadre and

Recruitment) Rules, 1981" was framed which provided

for mode of filling up of various posts in the institute.

He contends revised recruitment Rules known as "The

Karnataka State Sericulture Research and Development

Institute (Cadre and Recruitment) Regulations, 1997"

came into force from 1998 in the place of existing rules

and as per the said Rules the age limit prescribed for

the post of Director in the said Institute for Direct

recruitment was 50 years and by virtue of direction

given by this court in Writ Petition No.6623/2001 dated

01.03.2006 to consider the representation dated

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5.3.2000 and 06.03.2000 submitted by fifth respondent

and others in accordance with law, it came to be

referred to anomaly committee. Pursuant to the

directions issued by this court, the anomaly committee

recommended for relaxation of age limit as "below 50

years for external candidates and below 53 years for

internal candidates". He contends that after reviewing

the C & R Rules, and considering the recommendations

made by the anomaly committee 3rd respondent-

institute proposed for amending the Rule with regard to

fixing the age. As such the Governing Council in its

44th meeting held on 18.12.2006 resolved to amend the

C & R 1997 and accordingly resolved to amend the

Rules as "below 53 years on the date on which the

vacancy of the post of Director accrued in respect of

the internal candidates only” as per Annexure-R2. He

contends when the said resolution was sent for approval

to the State Government, it was modified as "Below 55

years as on the date on which the post of Director

became vacant in respect of internal candidates

only" as per Annexure-R3. At this juncture, petitioner

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submitted a representation on 22.2.2007 and 28.2.2007

to fix the age to "53 years" for internal candidates as on

the last date fixed for receipt of the applications. The

Commissioner for Sericulture forwarded the petitioner's

representation to the Government for consideration. The

State Government on 26.6.2007 accepted the

recommendation of the Commissioner of Sericulture

and approved C & R – 1997 by fixing the age limit as

below 53 years as on the last date for receipt of

applications and pursuant to the same notification was

issued and applications were called for, received,

proceedings were held by the selection committee and

made its recommendations as per Annexure-G. He

contends that on account of several Scientists being

excluded by virtue of reducing the age as also the date

on which vacancy would arise, representations came to

be submitted to the Government and first respondent -

Government after obtaining necessary opinion,

withdrew the notification dated 09.02.2007 and

26.6.2007 Annexure- B and E and approved the

resolution dated 18.12.2006 passed by the Governing

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Council at its 44th meeting by order dated 24.03.2008

which is impugned in the present writ petition. He

submits that pursuant to the impugned order,

notification has been issued and applications were

called for from eligible candidates and the selection

process is now complete in which the petitioner has also

participated and results have not been announced by

virtue of the interim order passed by this court on

11.7.2008 not to announce the result pending disposal

of the Writ Petition. He contends that petitioner having

participated in the selection process is estopped from

challenging the impugned notifications. He would

further contend that on account of petitioner not

challenging the resolution dated 18.12.2006, the order

of the Government dated 24.3.2008 Annexure-M is only

an order granting approval of the resolution and as

such Writ Petition itself is not maintainable. He would

contend that the State Government has no authority or

jurisdiction to modify or change the authority of the

institution which is a society registered under the

Societies Registration Act and as such the notification

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dated 9.2.2007 and 26.6.2007 vide Annexures B and E

being contrary to the resolution of the Governing

Council dated 18.12.2006 is illegal and void and

contends that impugned order is valid and legal. It is

also submitted that as per clause 19A of the

Memorandum of Regulations which is a non obstante

clause would apply only to Rule 13 to 19. He contends

that in exercise of the power conferred under bye-law

10(3), Cadre and Recruitment Rules have been

formulated which cannot be found fault with. He

submits that Government while withdrawing Annexures

B and E has assigned reasons and particularly in the

note at paragraph 244 vide Annexure-R13 it has

specifically stated that resolution passed by the

Institute at its 44th Governing Council Meeting is final

and binding and as such he contends that the

impugned order dated 24.3.2008 at Annexure-M does

not call for interference.

13. In support of his contention he relies upon

the following judgments:

(1) 2009) 3 SCC 227

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(2) (1997 6 SCC 614

(3) (2003 9 SCC 529

(4) (2007 8 SCC 100

(5) Order dated 15.10.2007 passed in WA

No.15098/2011.

14. Sri K.G. Shanthappa, learned counsel

appearing for third respondent institute would contend

that prior to 1998 Rules under old Rules i.e. 1980, the

age limit prescribed for the post of Director was 50

years and pursuant to order passed by this court in

Writ Petition No.6623/2001 anomaly committee meeting

was convened, which prescribed age limit as 55 years as

per recommendations dated 06.11.2002. He would

contend that post of Director became vacant as on

24.2.2006 and second anomaly committee proposed

amendments to existing C & R Rules-1997 and it

recommended the age limit as 60 years for external

candidates and 53 years for internal candidates. He

would contend that on account of some Senior

Scientists of the Institute making request for relaxation

of the age limit for five years, 44th Special Governing

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Council Meeting of the Institute was convened on

18.2.2006 and it was resolved that age limit for the post

of 'Director' as "below 53 years on the date on which

the vacancy of the post of Director accrued in

respect of internal candidates only". The State while

considering the said resolution sent for approval,

modified the 44th Governing Council Resolution to the

maximum age limit as below 55 years as on the date on

which post of Director became vacant, for wider

competition in selection of merit candidates for the said

post. Thereafter, within a span of four months on the

basis of the representations dated 22.2.2007 submitted

by few scientists of the Institute, including the

petitioner, the age limit was again modified by reducing

and fixing the age limit as “below 53 years on the last

date fixed for receipt of the applications” as per approval

letter dated 26.6.2007 Annexure-E issued by the first

respondent. By virtue of such approval order issued by

the State Government, the last date of receipt of

application was to be reckoned for the purposes of

maximum age limit and not the date on which the post

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became vacant and he contends by virtue of such

amendment, which was made without following the

prescribed procedure, all senior scientists including the

fifth respondent became ineligible to apply and thus

deprived from applying for the post of Director. It is

stated by the learned counsel that on pressure being

exerted by the petitioner to issue appointment order

based on the re-amended C & R Rules dated 26.6.2007-

Annexure-E, the file came to be referred by the State

Government for legal opinion and thereafter, the

representation of fifth respondent also came to be

considered and on detailed factual examination followed

by securing legal opinion from the legal Department the

Government decided to withdraw the orders/approvals

Annexure-B & E since it was found to be contrary to

legal position and as such no infirmity can be found in

the impugned order Annexure-M. He contends that as

on 24.3.2008 namely the date of impugned notification,

petitioner, fifth respondent and Dr.Bongale were

eligible. He would contend if the age limit is taken as

53 years and cut off date as if last date of receipt of

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application is taken then only four candidates would be

eligible. Further, he contends if it is taken as "date on

which vacancy arose” all will become eligible. Thus, he

contends there is wider participation and no one is

deprived of not being considered by virtue of impugned

orders.

15. He contends that two previous Ministers have

taken different views as found at paragraph 197 of the

note sheet at Annexure-N and as such it was referred to

legal department who on scrutiny of entire factual

position have opined that non approval of the resolution

passed at the 44th Special Governing Council Meeting of

3rd respondent-institute is incorrect and as such the

Government has issued the impugned order dated

24.3.2008 Annexure-M withdrawing earlier approval

orders dated 9.2.2007 and 26.6.2007 Annexure-B & E

which is within the power of the Government.

16. He contends that under clause 10(2) of the

Rules and Regulations of the Institute, 1980 the

Governing Council has power to add, alter or abridge

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any of the objects of the Institute subject to approval by

Government. He submits that if decisions contain

reasons, it is sufficient and contends that decision

making process alone can be gone into by Courts and

not the decision. In support of his submission he has

relied upon the following judgments:

(1) AIR 2010 SC 2794

(2) (2008) 10 SCC 246

17. Sri.P.S.Manjunath, appearing on behalf of

sixth respondent would contend that first respondent

found that the bye-law amended by the Institute which

is a Society Registered Under the Societies Registration

Act, are invalid and without jurisdiction and as such,

issued order dated 24.3.2008 Annexure-M withdrawing

its earlier notifications dated 9.2.2007 and 26.7.2007

Annexures B & E respectively. He contends that if

Government Order dated 24.3.2008 is quashed earlier

notifications dated 9.2.2007 and 26.7.2007 would get

revived which would mean for internal candidates, the

age would be 53 years as on the last date prescribed for

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the receipt of applications. He would contend the only

beneficiary of this amendment made by the Government

under the impugned order is 5th respondent and further

contends that entire exercise of the petitioner appears to

be for the purpose of excluding competition from

respondents 5 & 6. He submits that sixth respondent

is required to be considered in view of the orders of this

court in Writ Petition No. 16041/2007. He also submits

that petitioner has to demonstrate that bye-laws of the

Institute can be amended by a simple resolution of the

Institute and it need not follow the procedure prescribed

u/s.10 of Karnataka Societies Registration Act read with

Rule 29 of the Rules.

18. In reply, Sri.P.S.Rajgopal would contend that

Rule 10, 12 to 14, 17 and 20 along with 15, 18 and 19

of Memorandum of Association, Governing Council has

no role to play in so far as appointment of Director is

concerned. He would submit that under Rule 10(3)

there is no general power to the Governing Council

since under clause (g) of clause 10(4) power was given to

Governing Council and later on withdrawn with effect

28

from 19.10.2000. He contends that notwithstanding

anything contained in Rules 13 to 19 of Memorandum

of Association, State Government is the appointing

authority under Rule 19A. He contends that Cadre and

Recruitment Rules is not at all applicable since Rule 14

is not covered under Rule 19A. In support of this

submission he relies upon the judgment of this court in

the case of Dr.Giridhar Kamalapurkar Vs Dr.Venugopal

Ram Rao and others reported in 2001 (3) KLJ 467. He

contends if the bye-law provides for the Government to

accept or reject the amendment it would also mean that

it has the power to amend the recommendations or the

decision of the Governing Council. Thus impugned

order suffers from vice of ultravires of Rules and

Regulations and as such it has to be set aside. He

contends that no administrative order can be

retrospective and in support of this proposition, he

relies upon the judgment of Govind Prasad Vs

R.G.Parsad and others reported in (1994) 1 SCC 437 -

para 11. He contends, if it has prospective effect

selection done pursuant to Annexure-B & E will hold

29

good and only Government Order has to be issued by

the first respondent. In support of this proposition, he

relies upon the judgment of the Hon'ble Apex court in

the case of Sonia Vs Oriental Insurance Co. Ltd., and

others reported in (2007) 10 SCC 627 para 10, 11 &

12. He would also contend that petitioner's

participation in the subsequent interview does not wipe

out his right and he submits that if he has participated

in the interview without prejudice to his right as seen

from the records filed in the present Writ Petition and

draws the attention of the court to the definition of the

word 'without prejudice' as defined in Blacks Law

Dictionary 8th Edition at page 1632. He would also

contend that once the fifth respondent has participated

by applying as a candidate in earlier round of selection

he is estopped from contending contrary. And in

support of his submission he relies upon the judgment

of the Hon'ble apex court in the case of University of

Cochin Vs N.S.Kanjoonjamma and others (V.Vasudevan

Vs University of Cochin and others reported in (1997) 4

SCC 426. With regard to the contention raised on cut

30

off date that it cannot be questioned at all, he relies

upon the judgment of the Hon'ble Apex court in the case

of Dr.Ami Lal Bhat Vs State of Rajasthan and others

reported in (1997) 6 SCC 614 para 6.

19. In reply to Sri K.G. Shanthappa's arguments,

Sri.Rajgopal, Senior Advocate contends the then

Director of the Institute has recommended to the first

respondent to continue the process of appointment as

per Annexure-K dated 13.12.2007 and as such he

cannot be allowed to argue against his own

recommendations. He relies upon the judgment of the

Hon'ble apex court in the case of East Coast Railway

and Anr Vs Mahadev Appa Rao and others with

K.Surekha Vs Mahadev Appa Rao and others reported

in AIR 2010 SC 2794. On these grounds he prays for

allowing the Writ Petition.

20. Having heard the learned advocates appearing

for the parties, I am of the considered view that

following points would arise for my consideration:

31

(1) Whether petitioner in W.P. No. 15880/2007

is entitled for any relief as sought for?

(2) Whether the appointment of Director to

the third respondent Institute is governed

by the Cadre and Recruitment Regulations,

1997 or is it by any other

Rules/Regulations?

OR

Whether selection and appointment of

Director to third respondent -Institute is to

be made by the State Government alone?

(3) Whether petitioner has any indefeasible

right to seek for being appointed as the

Director of the third respondent Institute?

(4) Whether the impugned order dated

24.3.2008 Annexure-M is liable to be

quashed or set aside or to be affirmed?

(5) What order?

21. Before proceeding to delve upon the points

formulated herein above it would be necessary to

narrate the background of the case since it has a past

history which has led to present litigation.

BACKGROUND OF THE CASE:

22. Third respondent Institute was initially

established under the name "Karnataka State

32

Sericulture Development Institute" on 10.4.1980 and it

was registered as a Society under the provisions of

Karnataka Societies Registration Act, 1960. The name

of the Institute came to be changed to the present one

i.e. "Karnataka State Sericulture Research and

Development Institute” (hereinafter referred to as

“Institute” for brevity) with effect from 19.1.1994.

23. Fifth respondent herein and two other

scientists had approached this Court by filing Writ

Petition No.6632/2001 seeking for quashing of the age

limit of 50 years prescribed for Selection to the post of

Director under The Karnataka State Sericulture

Research and Development Institute Cadre and

Recruitment Regulations 1997 (hereinafter referred to

as “C & R –1997”). This Court, by order dated

1.3.2006 disposed off the said Writ Petition directing

that anomaly committee constituted by the Institute

shall consider the representations dated 5.3.2000 and

6.3.2000 submitted by fifth respondent and others in

accordance with law. The said anomaly committee held

its proceedings on 09.08.2006 and 22.9.2006 and

33

recommended for relaxation of age limit as "Below 50

years for external candidates and below 53 years for

internal candidates" vide Annexure-R1.

24. The Governing Council of the third

respondent Institute at its meeting held on 18.12.2006

passed a resolution amending C & R -1997 whereby the

age-limit for the post of Director was resolved to be

prescribed as "Below 53 years on the date on which

vacancy of the post of Director accrued in respect of

internal candidates".

25. The said resolution was forwarded by the

Institute for approval of the State Government. The

State Government by its communication dated 9.2.2007

(Annexure-B to the Writ Petition No.8085/2008 and

Annexure-R3 to the statement of objections filed by fifth

respondent) approved the amendment as "below 55

years as on the date on which the post of Director

became vacant in respect of internal candidates

only". Petitioner in Writ Petition No.8085/2008 made

a representation on 22.2.2007 requesting the

34

Government to fix the age at 53 years for internal

candidates and cut off date for the age limit as last date

fixed in the notification for receipt of the applications as

per Annexure-R8. Likewise, some of the scientists of

the institute had also made representations to the

Government to the same effect. Said representation

came to be forwarded by the Government to the third

respondent institute by communication dated 28.2.2007

Annexure-R9. The Director intimated first respondent

Government by communication dated 31.5.2007

Annexure-R6 to reconsider and give approval for fixing

maximum age limit for in-service candidates from 55

years to 53 years to the post of Director, so as to take

further action to fill up the post of Director of third

respondent institute. First respondent accepted the

said recommendation/request made by the Director of

third respondent Institute and conveyed its approval for

amendment of the C & R-1997, by order dated

26.06.2007, Annexure-E. Whereunder the age limit for

the post of Director was fixed as "below 53 years for

35

internal candidates on the last date fixed for receipt

of applications".

26. During this interregnum period i.e., after the

anomaly committee’s recommendation and before

approval of resolution dated 18.12.2006 by the

Government on 09.02.2007 one Dr.S.R.Katti, who was

working as a Scientist-D in third respondent Institute

had approached this court seeking for quashing of the

notification dated 05.01.2007, whereunder the services

of Dr.U.D.Bongale who had been placed as incharge

Director of the third respondent Institute had been

continued as Director till regular Director was appointed

by the Selection Committee. Said notification came to

be set aside by this Court by order dated 27.2.2007 and

it was up held by Division Bench by Judgment dated

14.06.2007 in WA No.461/2007 directing regular

appointment to be made to the post of Director within a

period of four months. Government was also permitted

by Division Bench to post any competent person to hold

the charge of the post of Director until regular

appointment was made.

36

27. Pursuant to the order of approval dated

26.06.2007 (Annexure-E) granted by the Government

third respondent issued a notification dated 15.07.2007

Annexure-F inviting applications for the post of Director

to 3rd respondent Institute, whereunder the age limit

was fixed as "Below 53 years for internal candidates

on the last date fixed for receipt of applications". In

all, 15 applications were received pursuant to the said

notification. Selection Committee held its meeting on

18.09.2007, considered the applications received.

Selection Committee found that as per the qualifications

prescribed under the notification only four persons were

eligible to be considered for the said post, which

included the petitioner amongst other three candidates.

In the said meeting, the committee decided to meet

again and to call for the interview of the eligible

candidates and to take a final decision and to

recommend from amongst them a candidate for

appointment to the post of Director. Petitioner was

informed of the proposed interview to be held on

8.10.2007 at 3.00 p.m. by communication dated

37

28.9.2007 Annexure-H. Committee held its meeting on

8.10.2007 at 3.00 p.m. and after interviewing the

candidates, recommended to the State Government the

candidature of the petitioner (in W.P.8085/2008) to the

post of Director of 3rd respondent institute. The said

recommendation was forwarded by the Chairman of the

Selection Committee to the first respondent Government

intimating the out come of the selection process. Fifth

respondent herein submitted a representation dated

26.11.2007 Annexure-R10 to the first respondent

Government seeking cancellation of said

recommendation of petitioner with a prayer that age

relaxation order issued by the Government dated

26.06.2007 be set aside and to accept the Government

Order dated 09.02.2007 whereunder age limit upto 55

years had been fixed and seeking for issuance of fresh

notification. The first respondent Government after

several deliberations, confabulations and after obtaining

the opinion from the Law Department resolved to

withdraw the approval order dated 09.02.2007

(Annexure-B) and 26.06.2007 (Annexure-E) and granted

38

approval of the amendment as per the resolution passed

by the Governing Council of the third respondent

Institute at its 44th meeting held on 18.12.2006 by

order dated 24.3.2008 Annexure-M and thereby

approving the resolution dated 18.12.2006 passed by

the third respondent Institute whereunder it had been

resolved to fix the age limit for the post of Director as

"below 53 years on the date on which vacancy arises

for internal candidates".

28. Pursuant to the said order Annexure-M

issued by the Government, notification dated 17.5.2008

Annexure-N was issued inviting applications for the

post of Director of the third respondent Institute. At

that point of time petitioner also applied to the post of

Director of the Institute and simultaneously challenged

the Government order dated. 24.03.2008 Annexure-M

and Notification dated. 17.05.2008 Annexure-N in the

present Writ Petition No.8085/2008 on 10.06.2008.

29. This Court by order dated 11.07.2008 has

passed an interim order permitting the Selection

39

Committee to interview all the candidates and not to

announce the results pending disposal of the present

Writ Petition and said order is in force till date.

In this factual background now let me examine the

points formulated hereinabove.

RE POINT NO.1:

30. Petitioner in Writ Petition No.15880/2007 has

sought for a mandamus to direct the respondents to

consider his case for appointment to the post of Director

of the 3rd respondent- Institute pursuant to notification

dated 15.7.2007 - Annexure-F and to appoint him to the

said post, contending interalia that he is possessing

requisite qualification and he is the only candidate out

of other three candidates who were called for interview

who has completed Ph.d in Sericulture and as such, he

contends action of the Selection Committee in not

issuing interview letter to the petitioner though the date

of interview was fixed as 8.10.2007 at 3.00 p.m. is

erroneous and bad in law.

40

31. Petitioner was appointed as Scientist-C and was

working in Agroneum section as Scientist-C. Notification

dated 15.7.2007 came to be issued inviting applications

for the post of Director, whereunder qualification that

has been prescribed is:

"15 (fifteen) years of Post Doctoral ResearchExperience as evidenced by ResearchPublication, of which five (5) years in anybranch of Sericulture in the grade ofScientist-D and above or equivalent"

This is a pre-requisite qualification for considering

application for the post of Director. Petitioner applied

for the said post on 24.08.2007. The Selection

Committee has met on 18.09.2007 and in the

proceedings recorded by it as seen from the original

records said committee has considered all the 15

applications received by it including that of the

petitioner and has found that petitioner is not eligible

for being considered on the ground that he is Scientist-

C and has not worked as Scientist-D for a period of five

years. At this juncture it would be necessary to notice

that an applicant has a right to be considered and mere

inclusion of his name within the zone of consideration

41

would not clothe him with a right to seek appointment

order being issued in his favour even though he does

not fulfill the eligibility criteria fixed. There is no vested

right of the petitioner which has been violated. In that

view of the matter, it cannot be held that non-issuance

of letter of interview by the Selection Committee to be

contrary to the C & R - 1997 or there being violation of

any other provisions. It is also to be noticed that

pursuant to the proceedings of the Selection Committee

held on 08.10.2007 four persons were interviewed and

name of Dr.J. Sukumar (petitioner in Writ petition

8085/2008) had been recommended to the Government

for the post of Director of the third respondent

Institute. Petitioner has not taken any steps to

challenge the said recommendation and even otherwise

the first respondent Government by order dated

24.3.2008 has already withdrawn the orders dated

09.02.2007 and 26.06.2007 by virtue of which

Notification dated 15.07.2007 Annexure-F had been

issued and thereafter the third respondent Institute has

issued fresh notification dated 17.05.2008 Annexure-N

42

calling for applications from eligible candidates and the

selection committee has also met thereafter and had

held the interview on 14.07.2008, which action/orders

have also not been challenged by the petitioner and as

such, petitioner is not entitled for the relief sought for in

the Writ Petition. Accordingly, Writ Petition

15880/2007 stands rejected.

RE POINT NO.2:

32. Notification Annexure-N dated 17.5.2008 was

issued calling for applications for recruitment to the

post of Director in the grade of SCIENTIST - 'F'. The

main thrust of the argument advanced by the learned

counsel for petitioner in this regard is: first respondent

Government by order dated 26.06.2007 Annexure-E had

approved the C & R - 1997 of 3rd respondent institute,

whereunder age limit fixed was "below 53 years for

internal candidates on the last date fixed for receipt of

applications", and for purpose of selecting the

candidates a Selection Committee had been constituted

and pursuant to same a notification dated 15.7.2007

Annexure-F had been issued calling for applications

43

pursuant to which interviews were held and petitioner’s

name was recommended by the said Selection

Committee. When the said factual matrix existed, the

impugned order dated 24.3.2008 Annexure-M has been

passed at the behest of fifth respondent leading to

issuance of fresh notification dated 17.05.2008 and

thereby annulling earlier selection which is illegal.

Petitioner contends that third respondent institute has

been registered under the Societies Registration Act and

appointment to the post of Director will have to be made

by the Government only under clause 14 and clause

19A of the Memorandum of Association and as such,

the appointing authority is only the Government and

none-else. He contends that Cadre and Recruitment

Regulations-1997 is not at all applicable for selection of

Director since Rule 19A of the Memorandum of

Association is in super-session of other Rules as stated

in the Memorandum of Association and as such the

Institute or the Selection Committee has no power to

appoint Director of 3rd respondent Institute and it is the

State Government alone which has right to select and

44

appoint. He contends that Rule 14 of Memorandum of

Association is applicable and Rule 20 of MOA would

clearly go to show that only persons appointed under

Rule 15, 18 and 19 are governed by such bye laws

framed by Governing Council and Director has been

excluded from its purview and as such C&R 1997 is

inapplicable in so far as appointment of Director to 3rd

respondent institute is concerned.

33. The Memorandum of Association (hereinafter

referred to as MOA for brevity) and Cadre Recruitment

Regulations have been produced by the petitioner along

with a memo dated 03.01.2011. As seen from the said

memo, proceedings of the Government of Karnataka and

the order No.CI 166 SLP 80, Bangalore dated 7th March

1981 is also appended thereto would go to show that an

order has been passed by the Government of Karnataka

approving the Memorandum of Association of 3rd

respondent Institute. Thus, there cannot be any

dispute with regard to the approval granted by the first

respondent - State approving the Memorandum of

Association of third respondent institute. The Rules

45

and Regulations of the third respondent Institute is part

and parcel of said Memorandum of Association.

34. Under clause 5 of the Memorandum of

Association, administration of the Institute vests with

the Governing Council.

35. A perusal of clause 10(4)(b) of MOA would go

to show that Governing Council is empowered to make

bye-laws as deemed essential for the regulation of the

business of the Institute.

36. As already noted hereinabove third respondent

Institute has framed Cadre & Recruitment Regulations

known as "The Karnataka State Sericulture Research &

Development Institute Cadre and Recruitment

Regulations 1991, which came to be revised in the year

1997 and duly approved by the Government vide order

No.CI 120 SLS 98 DATED 8.1.1998 and (C & R-1997).

The said C & R- 1997 has been made applicable to all

the employees of the Institute appointed in accordance

with the said Regulations.

46

Rule 2 of C & R-1997 defines various words occurring in the

Cadre and Recruitment Regulations, 1997. Some of the

definitions which are relevant for the purposes of this case

are enumerated hereinbelow.

2. DEFINITIONS:

In these Regulations, unless the context otherwise

requires,

6) 'Director' means the Director of the Institute.

8) 'Direct Recruitment' -means appointmentagainst a post sanctioned for a period exceedingthree years in accordance with these regulationsotherwise than by promotions or transfer fromany Civil Service of Government or Local or otherauthorities but shall not include appointmentmade on contract basis.

37. As per Annexure-I of the C & R 1997 the existing

cadre strength and recommended, classification of posts of

the Institute are specified therein. As per Annexure-II of C&R

–1997 the mode of Recruitment, qualification, age limit have

been prescribed.

38. Rule 13 prescribes for the purpose of Direct

Recruitment, there shall be a Selection Committee and sub

Rule (1) of Rule 13 prescribes a committee comprising of the

persons referred to therein is to be constituted when the post

of a Director of the Institute

47

is to be filled up. As per Annexure-II to the said C & R -

1997 the qualifications for the post of Director has been

specified at item No.1. The age limit prescribed

thereunder was 50 years. Which has been subsequently

amended by the third respondent-Institute and which

came to approved by Government with certain

modification and thereafter Government has retraced its

steps and restored the approval made by 44th Governing

Council Meeting of third respondent-Institute. It is this

Rule in C & R –1997 which is subject matter of

challenge in this writ petition and pursuant

notifications issued thereunder.

39. In order to examine the contentions raised it

would be necessary to note certain facts. Third

respondent Institute has been registered under the

Karnataka Societies Registration Act, 1960 and it is

evidenced from the certificate of Registration dated. 7-3-

1981 filed along with a memo dated 3.1.2011. The first

respondent State has by order dated 7.3.1981 approved

the Memorandum of Association of third respondent

Institute for its adoption so as to commence its activities

48

vide order NO.166 SLP 80, BANGALORE, DATED THE

7TH MARCH, 1981. As noted herein above under clause

5 of the Memorandum of Association, the

administration of the 3rd respondent Institute vests with

the Governing Council and the composition of the

Governing Council is as under:

1) The Secretary to Government,Commerce & Industries department - Chairman

2) The Secretary to Government,Finance Department - Member

3. The Director of Sericulture - Member

4. Professor of Zoology of a

University established by law inKarnataka to be nominated byGovernment in consultation withthe Chancellor - Member

5. The Director,

Central Sericultural ResearchAnd Training Institute, Mysore - Member

6. The Director,Karnataka State SericultureDevelopment Institute, Bangalore - Member

Secretary

40. The Memorandum of Association and the

Rules and Regulations of the third respondent Institute

is part of the said Registration made under the

49

Karnataka Societies Registration Act. The powers and

functions of the Governing Council of third respondent

institute is regulated by Rule 10 of the Rules and

Regulations. Under sub- Rule (3) of Rule 10 the

Governing Council has the power to add, alter or amend

the rules and regulations and bye laws of the institute

consistent with the institute's Registration Act (which

should have been “with the Societies Registration Act”)

and subject to approval of the Government under Rule

10(4)(6) Governing Council is empowered to make bye-

laws as deemed essential for regulation of the business

of the institute. Rule 14 of MOA empowers the

Government to appoint a Director to the 3rd respondent

- Institute which will be for a period of 5 years. Rule

19A provides for the State Government to appoint or

recommend the appointment of the Director and other

staff by direct recruitment or by deputation of officers of

the State Government, notwithstanding anything

contained in Rules 13 to 19 of MOA.

41. In the background of these provisions it is to

be examined whether it is the Government alone which

50

is empowered to appoint a Director of the institute or it

is the Selection Committee which constituted under

Regulation 13 of C & R-1997 which is empowered to

select and send its recommendation to the Government

for making appointment. Hence Rule 14 and 19A of

MOA are extracted, which reads as under:

14 - Appointment of Director:

1. The appointment of Director including firstDirector always be made by the Government

and such appointment shall be for a period offive years.

2. The Director shall be in overall administrativecontrol and management of the Institute.

19A - Powers of the State Government with regard toappointment of staff of the Institute:

Notwithstanding anything contained in Rules 13to 19, the State Government shall have the

authority to appoint or recommend theappointment of the Director and other staff, bydirect recruitment or deputation of officers of theState Government as the State Government mayconsider it appropriate from time to time.

42. In exercise of the Powers Conferred by Rule

10(3) and 10(4)(b) of the MOA of 3rd respondent

Institute, bye-laws of the institute has been framed

51

whereunder constitution of Selection Committee is

provided amongst other provisions. Under clause 2(k) of

the bye laws rules have been defined to mean and

include the Rules and Regulations of the institute.

Clause 9 (1) provides for prescribing Age, experience

and other qualifications for appointment to all posts in

the institute. Clause 2(g) of the Bye-laws defines as to

who is the “Controlling Authority” in relation to posts in

Classes I and II, it would be Governing Council, and in

relation to posts in classes III and IV the Director of the

institute as noted hereinabove. Clause 10 of the bye

laws provides for constitution of a selection committee

for appointment. Under clause 10(1) Selection

Committee has to make recommendations to Governing

Council/Director for appointment of various posts. The

said clause reads as under:

1. There shall be a Selection Committee to

make recommendations to the Governing

Council/ Director for appointments to various

posts. The constitutions of the committee

shall be noted in the Cadre and

Recruitment Rules.

(emphasis supplied by me)

52

43. By virtue of same third respondent-institute

has framed C & R Rules, 1997 as already noted above,

which interalia provides for filling up of various posts in

the third respondent institute. It is to be noticed at this

juncture contention of Sri.Rajagopal, learned Senior

Counsel appearing for the petitioner that Government

alone is the appointing authority even if taken into

consideration for a moment, the C & R -1997 which has

been duly approved by the Government by its order

No.CI 120 SLS 98 Dated 18.04.98 provides for Selection

of Director by a Selection Committee. Under the said C

& R -1997 as already noted hereinabove, Selection

Committee consisting of five persons is provided for

under Rule 13. Likewise for appointment to various

other posts in the third respondent -institute under sub

Rule (2) to (5) of Rule 13 the composition of the

Selection Committee has been enumerated. As per

Annexure-II to the said Regulations it has been specified

that selection to the post of ‘Director’ shall be by

`direct selection' and other requisite qualifications has

also been specified thereunder.

53

44. A combined reading of the above provisions

would clearly go to show that under the Memorandum

of Association, Rules and Regulations and bye laws of

the institute as also C & R - 1997 which is duly

approved by Government the selection to the post of

Director is to be made by a Selection Committee which

recommends to Government for being approved by it.

As such clause 14 or clause 19A of MOA cannot be read

in isolation and a harmonious reading has to be done to

effectuate the purpose for which it is framed and not to

negate it. It would also emerge that under the Rules

and Regulations as well as bye laws, the Government

has been designated as the appointing authority which

has to make appointments on the basis of the

recommendations of the Selection Committee

constituted under C & R Rules, 1997 in so far as posts

of Class I and II. The mode of recruitment for the post

of Director has been specified would be by direct

selection. Admittedly Memorandum of Association and

Rules and Regulations of the institute have been

registered under the Societies Registration Act. In fact

54

C & R - 1997 framed by the third respondent-institute

have also been duly approved by the Government and

there cannot be any qualms on this issue.

45. Under Rule 13(1) of C & R-1997, the post of

Director is required to be filled up by a direct

recruitment by a selection committee comprising of the

members as stated therein namely;

(i) The Vice Chancellor,University of Agricultural SciencesIn Karnataka …Chairman

(ii) The Commissioner & Secretary to

Government of Karnataka,Commerce & Industries Dept. …Member

3. The Commissioner for SericultureDevelopment & Director of Sericulture,Government of Karnataka. …Member

4. The Director of any SericultureResearch Institute. …Member

5. A Senior Professor of Zoology/Botany/Entomology/Sericulture of any

University in Karnataka. …Member

The Chairman of the said committee is the Vice

Chancellor first above named and others are members

of the said selection committee. Under Rule 15, the

55

selection committee would interview the eligible

candidates or select them in accordance with the

procedure indicated in Rule 10 and thereafter such

selection committee under Rule 16(1) will prepare in the

order of merit a list of candidates eligible for

appointment to the cadre or post. Under regulation 17,

the appointing authority would appoint the candidates

whose names are included in the list specified in

Regulation 16(1) and 16(2). Thus, the area within

which the selection committee operates is for the limited

purpose of selecting a candidate from out of the eligible

candidates interviewed and thereafter prepare in the

order of merit a list of candidates eligible for

appointment to the cadre or post. The selection

committee is not the appointing authority. The

‘appointing authority’ is the State Government as

defined under Rule 2 of C & R –1997 insofar as Director

is concerned. Rule 4 provides for method of recruitment

and qualification in relation to each post or categories of

posts as specified in Annexure-II to the said Rules. As

per Annexure-II, the mode of recruitment to the post of

56

Director is by ‘Direct Selection’ and the appointing

authority empowered to appoint Director of 3rd

respondent Institute is Government of Karnataka as

prescribed thereunder. Thus, it can be noticed that

selection committee and appointing authority are two

separate and distinct entities and it cannot be

understood that either selection committee is appointing

the candidates selected by it or the appointing authority

is selecting the candidates. In the instant case, when

the facts are examined in the background of these

Rules, it can be noticed that neither the selection

committee has made any attempts to appoint any

candidate selected by it to the post of Director of the

Institute or the Government has made any attempts to

select the candidates for the post of Director of Institute.

Thus, the role of these two namely ‘selection

committee’ and the ‘appointing authority’ are

independent, separate and distinct. Neither of them are

exercising the role of other nor they are exercising dual

roles.

57

46. It is also to be noticed in the instant case that

in the first instance when the petitioner Dr.J.Sukumar

was recommended by the selection committee, which

was constituted for the purposes of selecting the

Director of the Institute same is accepted by him and in

fact he stakes his claim for being appointed by virtue of

such selection made by said Selection Committee. Even

according to the petitioner, said selection committee

had selected the petitioner and had made

recommendation on 8.10.2007 to the first respondent

Government to appoint him as Director of the Institute.

In other words, petitioner himself does not dispute the

fact of the role of the selection committee as well as the

role of the Government. Thus, petitioner having

participated in the selection process cannot now turn

around and contend that selection process is improper

or the appointment by way of selection is to be made by

the Government of Karnataka alone and not by the

selection committee and in fact such a situation does

not existed at all. In this regard, the judgments of the

Hon'ble Apex Court referred to herein below would

58

clearly go to show that when candidate accepts the

procedure adopted by the selection committee such

candidate cannot turn around thereafter to contend

that selection process itself is improper, particularly

when there is acquiescence. The judgments are as

under:

(i) AMLAN JYOTI BAROOAH-V/S- STATE OFASSAM REPORTED IN (2009) 3 SCC 227

29. The question which, however, arises forconsideration is as to whether despite thesame, we, in exercise of our jurisdictionunder Article 136 of the Constitution ofIndia, should interfere with the impugned

judgement.

30. Appellant concededly did not questionthe appointment 169 candidates. It is idle tocontend that he was not aware thereof. If hewas to challenge the validity and / or legality

of the entire select list in its entirely, heshould have also questioned the recruitmentof 169 candidates which took place as farback as on 4.7.2000.

31. Appellant was aware of his position in

the selection list. He was also aware of thechange in the procedure adopted by theSelection Committee. He appeared at theinterview without any demur whatsoeveralthough was not called to appear for thephysical ability test prior thereto. Appellant

chose to question the appointment of 77candidates not only on the premise that theprocedure adopted by the Selection

59

committee was illegal but also on thepremise that no new vacancy could havebeen filled up from the select list.

32. Appellant, in our opinion, havingaccepted the change in the selectionprocedure sub silentio, by not questioningthe appointment of 169 candidates, in ourconsidered opinion, cannot now be permitted

to turn round and contend that theprocedure adopted was illegal. He isestopped and precluded from doing so.

(ii) (2007) 8 SCC 100- Union of India v/s S. Vinodh

Kumar

“18. It is also well settled that thosecandidates who had taken part in theselection process knowing fully well the

procedure laid down therein were notentitled to question the same. (See MunindraKumar V/s Rajiv Govil) (See also RashmiMishra V/s M.P. Public Service Commission)

47. In that view of the matter I am of the

considered view that Point No.2 has to be held by

concluding that appointment to the post of Director of

third respondent -institute is governed by C & R, 1997

by the mode prescribed namely to be made by the State

Government by considering the recommendation of the

Selection Committee.

60

RE POINT NO. 3 AND 4:

48. The Main thrust of the argument advanced

by Sri.P.S.Rajagopal, learned Senior counsel appearing

for petitioner in this writ petition is that entire selection

process which had been commenced had attained

finality came to be scuttled at the instance of fifth

respondent herein and when the process of selection

had commenced it could not have been stalled or

stopped in the midst by changing the Rules of the game

and such selection process commenced has to reach its

logical end. Before delving upon the point formulated let

me turn my attention to the case- laws on the issue that

governs the process to be adopted while making Direct

Recruitment and relied upon by Learned Counsel for

petitioner:

(i) (2008) 4 SCC 171 - Dhananjay Malik andothers Vs State of Uttaranchal and others

"7. It is not disputed that the writpetitioners- respondents herein participatedin the process of selection knowing fully wellthat the educational qualification was clearlyindicated in the advertisement itself asB.P.E. or graduate with diploma in physical

education. Having unsuccessfullyparticipated in the process of selectionwithout any demur they are estopped from

61

challenging the selection criterion inter aliathat the advertisement and selection withregard to requisite educational qualifications

were contrary to the Rules.

8. In Madan Lal vs. State of J & K, (1995) 3SCC 486, this Court pointed out that whenthe petitioners appeared at the oral interviewconducted by the Members concerned of the

Commission who interviewed the petitionersas well as the contesting respondentsconcerned, the petitioners took a chance toget themselves selected at the said oralinterview. Therefore, only because they didnot find themselves to have emerged

successful as a result of their combinedperformance both at written test and oralinterview, they have filed writ petitions. ThisCourt further pointed out that if a candidatetakes a calculated chance and appears atthe interview, then, only because the result

of the interview is not palatable to him, hecannot turn round and subsequentlycontend that the process of interview wasunfair or the Selection Committee was notproperly constituted.

9. In the present case, as already pointedout, the writ petitioners- respondents hereinparticipated in the selection process withoutany demur; they are estopped fromcomplaining that the selection process wasnot in accordance with the Rules. If they

think that the advertisement and selectionprocess were not in accordance with theRules they could have challenged theadvertisement and selection process withoutparticipating in the selection process. Thishas not been done.

10. In a recent judgment in the case ofMarripati Nagaraja vs. The Government of

62

Andhra Pradesh, (2007) 11 SCR 506 atp.516 SCR this Court has succinctly heldthat the appellants had appeared at the

examination without any demur. They didnot question the validity of fixing the saiddate before the appropriate authority. Theyare, therefore, estopped and precluded fromquestioning the selection process.

11. We are of the view that the DivisionBench of the High Court could havedismissed the appeal on this score alone ashas been done by the learned Single Judge".

49. In the above case the appointments of

Assistant Teachers (Physical Education) was challenged

by the unsuccessful candidates on various grounds.

The learned Single Judge dismissed the writ petition

which came to be reversed in the appeal and same was

assailed in Special Leave Petitions by the selected

candidates. It was held by Apex Court that writ

petitioners had participated in the selection process

knowing fully well about educational qualification

prescribed which had been clearly indicated in the

advertisement and as such it was held that having

unsuccessfully participated in the process of selection

without any demur they are estopped from challenging

the selection. In the instant case on account of a

63

direction issued by Division Bench of this Court in

W.A.461/2007 dated 14.06.2007 the appointment of

Director to the institute was required to be made within

time frame i.e., 4 months from 14.6.2007 and as such

notification dated 15.07.2007 (Annexure-F in

W.P.8085/2008) came to be issued calling for

applications to the post of Director of 3rd respondent

Institute. The Selection Committee on scrutiny of such

applications found four candidates were eligible for the

post as per the C & R Rules and on 11.10.2007 a

representation came to be submitted by the 5th

respondent herein which was in pursuance to the

earlier representations submitted to various authorities

on 23.02.2006, 19.10.2006, 16.07.2007, 06.08.2007

and 14.09.2007 and there was no adjudication of said

representation by the Government. In the meanwhile

the Selection Committee had sent its recommendations

on 08.10.2007 to the State recommending petitioner's

name for being appointed as Director of the Institute.

However, State did not issue any order or publish the

list of selected candidates since the matter was under

64

scrutiny by the Government including the

representation of 5th respondent. The perusal of the

original records made available by the learned

Government Advocate would disclose that at that

relevant point of time the State was under President's

Rule and a decision had to be taken by his excellency

the Governor and thus selection made was at the stage

of consideration. It is well settled principle of law that a

candidate has a right for his name being considered but

does not have a right for being selected. In the instant

case admittedly petitioner's name had been

recommended for being appointed as Director or in

other words the Selection Committee had made the

selection for being approved and appointed by the State.

Even before a decision could have been taken by the

Government, fifth respondent herein had already set in

motion his grievance regarding "age criteria" which had

been prescribed as being erroneous and consequently

selection process also being illegal. The Select List

having not been published by the Government and the

same was still under consideration it cannot be held

65

that mere participation by the fifth respondent in the

selection process would defeat his right to question the

very selection criteria inasmuch as in the instant case

the fifth respondent had already submitted

representations to the authorities bringing to their

notice the anomaly that had crept in the C & R – 1997

much earlier to selection process commenced and he

was pursuing the same before the Government. In this

factual matrix it cannot be held that fifth respondent is

estopped from questioning the said decision of the

Selection Committee made on 08.10.2007. In view of

the same this Judgment does not assist the petitioner.

(ii) (2006) 6 SCC 395 - K.H.Siraj Vs High Court ofKerala and others

73. The appellants/petitioners havingparticipated in the interview in thisbackground, it is not open to theappellants/petitioners to turn roundthereafter when they failed at the interview

and contend that the provision of aminimum mark for the interview was notproper. It was so held by this Court inparagraph 9 of Madan Lal & Ors. Vs. State ofJ & K & Ors. , (1995) 3 SCC 486 as under:"Before dealing with this contention, we

must keep in view the salient fact that thepetitioners as well as the contestingsuccessful candidates being respondents

66

concerned herein, were all found eligible inthe light of marks obtained in the writtentest, to be eligible to be called for oral

interview. Up to this stage there is nodispute between the parties. The Petitionersalso appeared at the oral interviewconducted by the Members concerned of theCommission who interviewed the petitions aswell as the contesting respondents

concerned. Thus the petitioners took achance to get themselves selected at the saidoral interview. Only because they did notfind themselves to have emerged successfulas a result of their combined performanceboth at written test and oral interview, they

have filed this petition. It is now well settledthat if a candidate takes a calculated chanceand appears at the interview, then, onlybecause the result of the interview is notpalatable to him, he cannot turn round andsubsequently contend that the process of

interview was unfair or the SelectionCommittee was not properly constituted. Inthe case of Om Prakash Shukla vs. AkhileshKumar Shukla, 1986 suppl SCC 283, it hasbeen clearly laid down by a Bench of threelearned Judges of this Court that when the

petitioner appeared at the examinationwithout protect and when he found that hewould not succeed in examination he filed apetition challenging the said examination,the High Court should not have granted anyrelief to such a petitioner."

74. Therefore, the writ petition filed by theappellants/petitioners should be dismissedon the ground of estoppel is correct in viewof the above ruling of this Court. Thedecision of the High Court holding to the

contrary is in per curiam without referenceto the aforesaid decisions.

67

50. In this case recruitment was made by the

High Court of Kerala to the post of Munsiff-Magistrate

under Kerala Judicial Service and same was questioned

by the appellants who sought for quashing of the select

list on the ground it is contrary to the principles and

rules relating to reservations. The learned Single Judge

held that selection of some of the candidates as illegal.

Said Judgment came to be questioned by the High

Court of Kerala before Division Bench and by its final

Judgment the High Court allowed the appeal and set

aside the Judgment of the learned Single Judge by

holding that selections and appointments made were

regular in all respects. The Hon'ble Apex Court

dismissed the Special Leave Petition and affirmed the

order of the Division Bench. It was held therein that

candidates who participated in the interview had

knowledge that they had to secure prescribed minimum

pass marks for being selected and being unsuccessful in

interview they could not have turned round and

challenge the said provision of fixation of minimum

marks was improper. Their Lordships have held that

68

such challenge is liable to be dismissed on the ground

of estoppel by invoking section 115 of the Indian

Evidence Act, 1872. In the instant case the proceedings

of the Selection Committee (Annexure-G in

W.P.8085/2008) would clearly go to show that only four

candidates were held to be eligible for being considered

to be appointed as Director of Institute. Fifth

respondent was held to be over aged by 10 months 9

days as on the last date of receipt of application and

consequently it held that he is not eligible. The records

would go to show that fifth respondent was not in the

select list or was not in the zone of consideration. Mere

submission of an application would not disentitle the

fifth respondent to question the selection since he had

been eliminated from the zone of consideration itself as

being over aged when he was simultaneously and

parallelly pursuing his grievance with the authorities by

bringing it to their notice about the disparity with

regard to age criteria. It cannot be held that he had

acquiesced in the selection process and as such he was

estopped from challenging the selection or contending it

69

to be erroneous. Hence, the said Judgment is

inapplicable to the case on hand.

(iii) (2000) 9 SCC 283 - Munna Roy Vs Union ofIndia and others

2. The appellant, pursuant to an

advertisement issued by the RailwayRecruitment Board for the post of CraftTeacher (Bengali Medium), applied for thesame. She possesses qualification of agraduate. On the basis of a written test heldthereafter, she was successful, and then was

called for the interview. But after theinterview was over and a select list waspublished wherein her name also appearedbut as no appointment letter was issued, shemoved the Central Administrative Tribunal.While the application was pending before the

Tribunal, the Railway Recruitment Boardcancelled the panel by order dated 5.9.1996on the ground that there has been sufficientirregularities in the matter of selection, theappellant, therefore, filed an applicationbefore the Tribunal for setting aside the

order of cancellation and directing the Boardto complete the recruitment process. TheTribunal allowed the said application.Against the order of the Tribunal, the matterwas taken to the High Court and the HighCourt having interfered with the order of the

Tribunal, the appellant has approached thisCourt. The High Court while interfering withthe order of the Tribunal, has taken intoconsideration the fact that mere inclusion ofa person's name in the list does not conferany right and, therefore, Mandamus cannot

be issued. The aforesaid enunciation as aproposition of law cannot be disputed.However, if the administrative authority

70

takes a decision and the reasons for suchdecision are erroneous then such a decisioncan be interfered with by Court of Law. In

the case in hand the appellant pursuant toan advertisement had applied for and shehad the requisite qualification. She becamesuccessful in the written test as well as inthe viva-voce. The list of successfulcandidates included her name but the

ground for cancellation of the entire listwithout even informing the appellant wasthat though the minimum qualificationrequired was a matriculate she was agraduate and thus dubious method has beenadopted for being selected. We really fail to

understand that if a candidate possesses aqualification higher than the requiredqualification and the advertisement itselfhad prescribed the same then how can theauthority come to a conclusion that selectionhas been made by adopting a dubious

method. In the aforesaid premises, we haveno hesitation to come to a conclusion thatthe reasons which weighed with theauthorities to quash the selection are notgermane and must be held to be arbitraryand irrational. We, therefore, set aside the

impugned order of the High Court as well asthe order of the concerned authoritiesquashing the selection panel and direct thatthe order of the Tribunal be implemented.

51. In the said case appellant had applied for

the post of Craft Teacher (Bengali Medium) and she was

successful in the written test and was called for

interview. Her name was found in the select list

published. On account of appointment letter not being

71

issued she approached the Central Administrative

Tribunal and same held that there was sufficient

irregularities in the matter of selection and directed the

Board to redo the matter. High Court set aside the order

of the Tribunal which was not interfered by the Hon'ble

Apex Court on the ground that High Court was correct

in holding inclusion of person's name in the list does

not confer any right. Infact this decision assists the

fifth respondent more than the petitioner since

petitioner in the instant case is seeking for issuance of

mandamus to the first respondent to appoint him on

the basis of the recommendation sent by the Selection

Committee on 08.10.2007 whereunder the name of the

petitioner had been recommended by the Selection

Committee for being appointed as Director of the

Institute and admittedly petitioner’s name had not got

crystallized into a select list in the instant case. Hence,

said Judgment does not assist the petitioner in any

manner whatsoever.

(iv) (1993) 1 SCC 154 - Union Territory ofChandigarh Vs Dilbagh Singh and others

72

11. In Shankarasan Das v. Union of India,reported in JT (1991) 2 SC 380, a ConstitutionBench of this Court which had occasion to

examine the question whether a candidate seekingappointment to a civil post can be regarded tohave acquired an indefeasible right toappointment in such post merely because of theappearance of his name in the merit list (selectlist) of candidates for such post has answered the

question in the negative by enunciating thecorrect legal position thus:

"it is not correct to say that if a number ofvacancies are notified for appointment andadequate number of candidates are found fit,

the successful candidates acquire anindefeasible right to b appointment whichcannot be legitimately denied. Ordinarily thenotification merely amounts to an invitation toqualified candidates to apply for recruitmentand on their selection they do not acquire any

right to the post. Unless the relevantRecruitment Rules so indicate, the State isunder no legal duty to fill u p all or any of thevacancies. However, it does not mean that theState has the licence of acting in an arbitrarymanner. The decision not to fill up the

vacancies has to be taken bonafide forappropriate reasons. And if the vacancies orany of them are filled up, the State is boundto respect the comparative merit of thecandidates, as reflected at the recruitmenttest, and no discrimination can be permitted.

This correct position has been consistentlyfollowed by this Court, and we do not find anydiscordant note in the decisions in the Stateof Haryana v. Subbash Chander Marwaha andothers. [1974] 1 SCR 165; Miss NeelimaShangla v. State of Haryana and others,

[1986] 4 SCC 268, or Jitendra Kumar andothers v. State of Punjab and others: [1985] 1SCR 899."

73

12. If we have regard to the above enunciationthat a candidate who finds a place in the

select list as a candidate selected forappointment to a civil post, does not acquirean indefeasible right to be appointed in suchposting the absence of any specific Ruleentitling him for such appointment and hecould be aggrieved by his non- appointment

only when the Administration does so eitherarbitrarily or for no bona fide reasons, itfollows as a necessary concomitant that suchcandidate even if has a legitimate expectationof being appointed in such posts due to hisname finding a place in the select list of

candidates, cannot claim to have a right to beheard before such select list is cancelled forbona fide and valid reasons and notarbitrarily: In the instant case, when theChandigarh Administration which receivedthe complaints about the unfair and

injudicious manner in which select list ofcandidates for appointment as conductors inCTU was prepared by the Selection Boardconstituted for the purpose, found thosecomplaints to be well founded on an enquirygot made in that regard, we are unable to find

that the Chandigarh Administration had actedeither arbitrarily or without bona fide andvalid reasons in cancelling such 0dubiousselect list. Hence, the contentions of thelearned counsel for the Respondents as to thesustainability of the Judgment of CAT under

appeal on the ground of non-affording of anopportunity of hearing to the Respondents(candidates in the select list) is amisconceived one and is consequentlyrejected.

74

52. In the above case applications for filling up

32 vacancies of conductors in Chandigarh Transport

Undertaking (CTU) was invited and Regional

Employment Exchange of the Union Territory of

Chandigarh was required to sponsor the names of

eligible candidates and three member selection board

constituted by Chandigarh administration was required

to prepare a select list of 32 candidates out of the total

number of the applicants. On interview being conducted

a select list of 32 candidates was prepared by the

selection board which was on the basis of the marks

awarded for their educational qualification plus the

marks awarded for their performance at the interview, a

criteria which was said to have been followed by a

Selection Board constituted for a similar purpose in the

year 1953. The select list of 32 candidates was

announced. On account of severe criticism from the

members of both public and the press as to the role of

the members of the Selection Board of favouritism,

nepotism etc., it compelled the Chandigarh

administration to get the issue examined and on such

75

scrutiny it concluded select list of candidates for

appointment as conductors in CTU had not been

prepared by the members of the Selection Board fairly

and judiciously and as such it cancelled the select list of

candidates and constituted a new Selection Board to

prepare a fresh select list of candidates including those

who had been interviewed by the earlier selection board

as per fresh selection criteria prescribed. Those

applicants whose names were found in the select list

approached Central Administrative Tribunal,

Chandigarh and Tribunal set aside the order of he

Chandigarh administration which had cancelled the

earlier select list and directed it to appoint the

candidates from the cancelled list or in other words to

appoint those candidates whose name were found the in

first select list. This Judgment of the Central

Administrative Tribunal came to be set aside by the

Hon’ble Apex Court by holding a candidate selected for

appointment to a civil post does not acquire an

indefeasible right and also it was held in the said

judgment that the decision not to fill up the vacancies

76

had been bonafide taken by Administration for

appropriate reasons. It is this reasoning of the Apex

Court which Sri.P.S.Rajagopal, learned Senior Counsel

appearing for petitioner contends would be applicable to

the facts of the case on the premise that the decision

taken by the Government not to approve the

recommendation made by the Selection Committee is

not with any bonafide reasons but on the other hand

with an intention to accommodate the fifth respondent

alone.

53. In the first instance it is to be noticed that

merely because the petitioner herein had been

recommended by the Selection Committee for being

appointed as Director of the Institute by itself would not

create an indefeasible right in him to be appointed as

Director of third respondent-Institute. A notice inviting

applications from the candidates is an open invitation to

the candidates qualified to apply for such post. Further

even if selected or recommended by the concerned

selection committee it does not create any unqualified

right to such candidate until and unless the

77

recruitment rules itself specifies so. The selection

authority or the authority which approves the selection

even at the stage of considering the recommendation

made by the Selection Committee is entitled to examine

the issue as a whole or in other words it is empowered

to look into as whether selection process was fair and

proper or the relevant rules and regulations applied by

selection committee was in accordance with law or there

being any illegality that had crept in during such

Selection or recommendation as per extant rules or

regulations and if found to be, it is empowered to

withhold the select list or resolve or decide not to issue

appointment letter.

54. In this background when the facts on hand

are examined it would clearly go to show that by

resolution adopted by the institute at its 44th Governing

Council meeting it had made a recommendation

regarding fixation of age for appointment of Director to

the Institute and same came to be modified by the

Government and therefore Government came to

conclusion that it was contrary to provisions of

78

Memorandum of Association and bye laws of the

institute and as such it did not act upon the

recommendation of the Selection Committee but

proceeded to examine the grievance of the aggrieved

persons and as such it cannot be held that either the

Government has acted in arbitrary manner or the

petitioner would get any indefeasible right to be

appointed only on the ground that his name had been

recommended by the Selection Committee. In view of

the same the Judgments relied upon by the petitioner

does not assist him in any manner whatsoever.

55. It is also necessary to observe at this

juncture itself that as to whether the action of the State

in not accepting the recommendations of the Selection

Committee is arbitrary or capricious. As discussed

herein supra, State had accorded its approval to

amendment of C & R - 1997 of the institute on

09.02.2007 vide Annexure-B under which the age for

appointment of Director of Institute had been prescribed

as below 55 years as on the date on which the post of

Director became vacant. If said amendment is applied

79

virtually all candidates who had applied as internal

candidates would have become eligible to be considered

and they could not have been kept outside the zone of

consideration. However, by virtue of further

amendment to C & R -1997 made on 26.06.2007,

Annexure-E the age limit for internal candidates was

reduced to 53 years by fixing the cut off to be the last

date fixed for receipt of applications and admittedly said

amendment was brought within a time gap of five

months from the date of first amendment which was

made on 09.02.2007. Further there was no resolution

passed by the Governing Council of third respondent

institute recommending such amendment as required

under the bye laws of the institute, and as such the first

respondent Government was of the considered view that

resolution passed at the 44th Governing Council meeting

of the institute was in accordance with law which was

required to be approved and in fact had been approved

but came to be retraced by it by further amendment on

26.06.2007 Annexure-E and same being contrary to the

C & R-1997 and bye laws of the institute the appointing

80

authority namely Government did not except the

recommendation of the Selection Committee which had

recommended the name of the petitioner for being

appointed as the Director of 3rd respondent Institute.

56. The Hon'ble Supreme Court while

considering as to what constitutes arbitrariness has

held in the case of East Coast Railway and another Vs

Mahadev Appa Rao and others reported in AIR 2010 SC

2794 as under:

"8. There is no quarrel with the well settledproposition of law that an order passed by a

public authority exercisingadministrative/executive or statutory powersmust be judged by the reasons stated in theorder or any record or filecontemporaneously maintained. It follows inthe infirmity arising out of absence of

reasons cannot be cured by the authoritypassing the order stating such reasons in anaffidavit filed before the court where thevalidity of such order is under challenge".

"13. It is evident from the above that whileno candidate acquires an indefeasible rightto a post merely because he has appeared inthe examination or even found a place in theselect list, yet the State does not enjoy anunqualified prerogative to refuse an

appointment in an arbitrary fashion or todisregard the merit of the candidates asreflected by the merit list prepared at the

81

end of the selection process. The validity ofthe State's decision not to make anappointment is thus a matter which is not

beyond judicial review before a competentWrit court. If any such decision is indeedfound to be arbitrary, appropriate directionscan be issued in the matter".

57. In the instant case State has filed its

statement of objections on 22.06.2011 and at paragraph

11 and 17 it has been contended as under:

"11.On recommendation of the SelectionCommittee after re-amendment of C & RRules dated 26.06.2007 when the State wasunder Governor Rule on pressure putforthby the petitioner for approval, after detailedexamination of factual aspects and

circumstances followed by legal opinion fromthe law department, having noticed a seriouslapses on legal aspects in the process ofselection against procedure and rules, thethen Government decided to withdraw boththe letters dated 09.02.2007 and 26.06.2007

and approved the resolution dated18.12.2006 of the 44th Special GoverningCouncil, as per the impugned G.O dated24.03.2008.

17. If the State found at any stage, the

selection was tainted with illegality always itis open for it to correct the things. In thecontext, the C & R Rules under Notificationdated 09.02.2007 and 25.06.2007 werefound illegal and are opposed to existing lawon legal opinion by the Law Department and

hence, the State under its statutory powerspassed impugned orders, which are justifiedin the circumstances of the case".

82

58. Keeping the principles enunciated by their

Lordships in the matter of East Coast Railways case

referred to supra in mind and contention raised by

Government in its Statement of objections as extracted

hereinabove, when facts on hand are examined with

reference to the contention raised by the learned

counsel for petitioner about there being non application

of mind while passing the impugned order and there

being no basis for the same being passed, it is noticed

from the original records that a representation dated

22.02.2007 had been submitted by petitioner as also

representation by other scientists of the third

respondent - institute to the Secretary- Commerce and

Industry, Government of Karnataka requesting the

Government to fix the maximum age limit for internal

candidates as 55 years as on last date for receiving the

applications. The said representations came to be

forwarded by the Under Secretary - (Silk) Commerce

and Industry to the third respondent- institute by

covering letter bearing No.36 2006 dated 28.02.2007 as

83

noted in paragraph 49 and 50 of the note sheet of the

file bearing C.No.27858. Based on the said letter

received from the Government of Karnataka, the

Director of the third respondent-institute requested the

Government to reconsider its earlier approval granted

on 09.02.2007, Annexure-B and give approval for fixing

maximum age limit for in service candidates from 55

years to 53 years to the post of Director. There was no

resolution passed by the Governing Council in this

regard. However, the recommendation made by the

Director of the third respondent-institute vide letter

dated 31.05.2007 came to be accepted by the Secretary,

Mines, Textiles, Small Scale Industries, Commerce and

Industries Department as per note found at paragraph

58 of the note sheet of the same file. The said

acceptance came to be approved by the Minister for Silk

as found in the same paragraph of the note sheet at

internal page 20.

59. It would be relevant to observe that if the

resolution dated 18.12.2006 passed at 44th Governing

Council of 3rd respondent Institute had been approved

84

by the State Government and notification had been

issued by the third respondent-institute calling for

applications to the post of Director all Senior Scientist

working in the third respondent-institute including the

petitioner and respondent Nos. 5 and 6 would have

become eligible to apply. However, by virtue of changing

the age from 55 to 53 years the level playing field in the

process of recruitment became automatically uneven.

In other words Senior Scientists working in the third

respondent–institute would systematically got

eliminated if the age is taken as below 53 years by

taking into consideration the last date fixed for

receipt of applications then only four candidates

would become eligible. However, if the last date is

taken as the date on which the vacancy arose all will

fit into eligibility criteria. The notings found in the

note sheet at paragraphs 49 to 62 would clearly go to

show that the State Government having accorded its

approval for amendment of C & R – 1997 of the third

respondent-institute on 09.02.2007 vide Annexure-B

retraced its steps within a short span of four months as

85

noted hereinabove and made further amendment on

26.06.2007 vide Annexure-E based on the

recommendation letter dated 31.07.2007, Annexure-R-6

of the Director of institute without there being any

resolution passed by the Governing Council in this

regard.

60. On account of a direction issued in

W.A.No.461/2007 dated 14.06.2007 to make regular

appointment to the post of Director of the institute, the

third respondent-institute as well as the Government

were required to comply with the order passed by

Division Bench and as such 3rd respondent Institute

proceeded to issue notification dated 15.07.2007-

Annexure-F calling for applications for the post of

Director and the selection committee held its

proceedings on 18.09.2007 and made its

recommendations as per Annexure-G. In the

meanwhile fifth respondent herein who had submitted

earlier representation, submitted one more

representation dated 11.10.2007 to the Governor of

Karnataka and to the Chief Secretary which was in

86

continuation to earlier representation. Same came to be

noted by the Deputy Secretary in the note sheet at

paragraph 189 of the file C.No.26929 and forwarded the

file to the Governor followed by recommendation of the

Secretary to Government, Commerce and Industries

Department to approve the recommendation made by

the selection committee on 18.09.2007-Annexure-G.

Same came to be placed before the adviser to the

Governor of Karnataka since at the relevant point of

time the State of Karnataka was under the President's

Rule. After examining the matter adviser to the

Governor is said to have discussed the issue with

concerned officials and has made a note on 09.11.2007

at paragraph 197 as under:

"Two previous Ministers incharge had takendifferent views on the age limit for internalcandidates. The file may be put up fororders of the Minister concerned in theincoming Government".

61. On account of the President's Rule being

promogulated in the State of Karnataka once again the

file was ordered to be placed before the Principal

Secretary to the Governor. The Principal Secretary to

87

Government of Karnataka vide his notings in paragraph

212-216 of the note sheet of the same file was of the

opinion that second amendment made by the State

dated 26.06.2007 as per Annexure-E was not in line

with the decision of the 44th Governing Council meeting

of the third respondent -institute held on 18.12.2006

and as such he pointed out that course of action is to

place the Governing Council resolution dated

18.12.2006 in a special general meeting convened for

the special purpose and take it forward from there. He

also recommended for seeking opinion from Law

Department. As such it came to be placed before the

Additional Secretary to Government (Opinion) Law,

Justice and Human Rights Department. He has opined

as under:

"The Karnataka State Sericulture Researchand Development Rules and Regulations,1980 as well as Cadre and Recruitment

Rules, 1997 can be amended only byfollowing the procedure contained in Section10 of Karnataka Societies Registration Act,1960 r/w Rule 29 of the KSSDI Rules andRegulations , 1980. The approval of StateGovernment to the modified Cadre and

Recruitment Rules, 1997 vide its letter No.CI26 SLK 06 dated 26.06.2007 fixing the upperage limit of 53 years as on the last date of

88

the receipt of the applications for the post ofDirector and appointment made pursuant toit is not in accordance with the provisions of

law and rules applicable. Such appointmentmay not sustain if challenged in the court oflaw".

Sd/- (R.S.Patil)

Additional Secretary to Government (Opinion) Law, Justice & Human Rights Department

62. This opinion came to be approved by the Law

Secretary, Principal Secretary to Government,

Commerce and Industries Department and file being

sent for taking further steps in the matter, the Deputy

Secretary made further recommendation to accept the

resolution passed by the Governing Council at its

special 44th meeting held on 18.12.2006 and it has been

opined as under:

Paragraph 249 - According to this, the internalcandidates who have applied for the post of Director andappeared for the interview held on 08.10.2007 can be

classified as below:

SL.NO. NAME OF THEINTERNALCANDIDATE

AS AT18.04.1998(ORIGINAL 50YEARS)

1. DR.J.SUKUMAR, SD INELIGIBLE

2. DR.SRINIVAS R KATTI,SD

ELIGIBLE

89

3. DR.SUGUN RAJIV SD INELIGIBLE

4. DR.G.VEERANNA SD INELIGIBLE

5. DR.C.S.PATIL SD INELIGIBLE

6. DR.U.D.BONGALE,FORMER DIRECTOR

INELIGIBLE

PARAGRAPH 250 - If Governing Council resolutiondated 18.12.2006 is accepted and deemed to beoperational w.e.f. 18.12.2006 the following

consequences will emerge

SL.NO. NAME OF THEINTERNALCANDIDATE

ELIGIBILITYCRITERIA OFINTERNALCANDIDATES

1. DR.J.SUKUMAR, SD ELIGIBLE

2. DR.SRINIVAS R KATTI,SD

ELIGIBLE

3. DR.SUGUN RAJIV SD ELIGIBLE

4. DR.G.VEERANNA SD ELIGIBLE BUTNOT CALLEDFOR INTERVIEWAS PER

NOTIFICATIONDATED16.07.2007

5. DR.C.S.PATIL SD INELIGIBLE

6. DR.U.D.BONGALE,FORMER DIRECTOR

INELIGIBLE

63. In this background further opinion was

sought for from the law department and thereafter

opinion came to be issued by the law department on

03.03.2008 which reads as under:

"Since, the Government orders dated09.02.2007 and 26.06.2007 referred to in

90

sub para (1) and (2) of para 245 n/f arestated to be not based on the resolution ofGoverning Council of the institute, which

alone has authority to add or alter or amendthe rules and regulation and bye-law of theinstitute are liable to be withdrawn andcancelled as stated in para 251(a) n/f. Theeligibility for internal candidates fixed "below53 years as on the date on which the post of

Director became vacant" being based on theresolution dated 18.12.2006 of theGoverning Council can be approved by theGovernment. In case if such approval isaccorded by the Government, the internalcandidates below the age of 53 years as on

the date on which the post of Directorbecame vacant would be eligible to be calledfor interview for the post of Director eventhough the amendment is give effect fromthe date of resolution. In such case the dateof post of Director falling vacant would be

the determining date for the purpose ofdeciding eligibility for calling for theinterview of internal candidates".

Sd/- (R.S.Patil)

Additional Secretary to Government (Opinion) Law, Justice & Human Rights Department

64. The said note came to be approved by the Law

Secretary, Principal Secretary - Mines, Textiles,

Commerce and Industries, adviser to Governor of

Karnataka and it is thereafter the impugned orders have

been passed by the State. At this juncture it would be

relevant to note the stand of the State. In the statement

91

of objections filed it has been asserted by the State that

at any stage of the selection if it is found that selection

is tainted with illegality it is open for it to correct its

mistakes and contends that in this context it was found

that notification dated 09.02.2007 and 25.06.2007 were

found to be illegal and opposed to the existing law and

as such impugned orders have been passed. It would

be necessary to note at this juncture itself that mere

selection of the candidate does not confer any right in

such a candidate unless it crystalises into an order and

C & R – 1997 would lend credence to the said

proposition namely Regulation 16 (4) which reads as

under:

"The selection list of candidates should benotified in the order of merit for the posts orcategories of posts. Mere inclusion ofname/s of candidates in the select list doesnot confer any right in favour of suchcandidates for such appointment".

(Emphasis supplied by me)

65. In that view of the matter also the contention

of the petitioner that selection process once commenced

should culminate in issuing appointment order cannot

92

be accepted. It is also to be observed that petitioner

himself has submitted a representation on 22.02.2007

Annexure-R-8 whereunder he has sought for

amendment to C & R Rules. Hence petitioner is

estopped from contending that C & R Rules are

inapplicable for the purposes of applying the same to

appoint a candidate for the post of Director of the

Institute.

66. These facts and the various notings at

different levels of the Government would clearly go to

show that the decision taken by the Government to pass

order dated 24.03.2008 at Annexure-M cannot be

construed either as arbitrary, capricious or without

application of mind. The voluminous notings and the

deliberations having taken place at various levels of the

Government cannot be construed or held either as

capricious or arbitrary. The said decision arrived by the

State is after due application of its mind to the facts on

hand with reference to the Memorandum of Association,

bye laws and C & R rules. Hence, the said decision

cannot be held as without assigning any reasons. The

93

reasons has been recorded in the files maintained by

the State and the said reasonings found from the

notings would clearly go to show that State had applied

its mind before proceeding to pass the impugned orders.

Hence said contention deserves to be rejected and

accordingly it is rejected.

67. One another contention raised by the

learned counsel for petitioner on this issue is with

regard to the "cut off date" fixed for being considered to

be eligible for applying to the post of Director.

68. Prior to the amendment in the year 2007 as

per C & R Rules the mode of recruitment to the post of

Director was by direct selection and apart from other

essential qualifications prescribed, the age limit had

been fixed as 50 years. In the 44th Governing Council

meeting of third respondent institute it was

recommended by resolution to fix the age as “below 53

years on the date on which the vacancy of the post

Director accrued in respect of internal candidates only”.

Same was sent to approval. However, the Government

94

while considering the recommendation of the 44th

Governing Council meeting fixed the age limit as “below

55 years as on the date on which the post of Director

became vacant”. In the instant case the post became

vacant on 24.02.2006 after the term of Dr.Bhongale

came to an end. If the cut off date is taken as 53 years

and is deemed to be operational from 18.12.2006

petitioner becomes eligible and fifth respondent would

become ineligible. However, if the resolution of the 44th

Governing Council is accepted namely the age as 53

years as on the date on which the post of Director

became vacant both petitioner, fifth respondent and

Dr.Bhongale would have become eligible. Hence, the

contention of learned counsel for petitioner that

Government erred in fixing the cut off date as the date

on which the post of Director became vacant has to be

set aside, cannot be accepted. The Hon'ble Apex Court

while considering the powers of authorities to fix the cut

off date for determining the maximum or minimum age

prescribed for a post has held, that it is within the

discretion of the rule making authority or the employer.

95

It has also been held such cut off date cannot be fixed

with any mathematical precision in the case of Dr.Amit

Lal Bhat Vs State of Rajasthan and others reported

in (1997) 6 SCC 614 which reads as under:

5. This contention, in our view, is not

sustainable. In the first place the fixing of acut off date for determining the maximum ofminimum of minimum age prescribed for apost of not, per se, arbitrary. Basically, thefixing of a cut off date for determining themaximum or minimum age required for a post,

is in the discretion of the Rule-makingAuthority or the employer as the case may be.One must accept that such a cut off datecannot be fixed with an mathematicalprecision and in such a manner as wouldavoid hardship in all conceivable cases. As

soon as a cut off date is fixed there will besome persons who fall on the right side of thecut off date and some persons who will fall onthe wrong side of the cut off date. That cannotmake the cut off date, per se, arbitrary unlessthe cut off date is so wide off the mark as to

make it wholly unreasonable. This view wasexpressed by this court i n Union of India andanother etc. V. M/s. Parameswaran MatchWorks etc. (AIR 1974 S.C. 2349) and has beenreiterated in subsequent cases. In the cases ofA.P. Public Service Commission, Hyderabad

and another v. . Sharat Chandra and Ors.(1990 2 SCC 669) the relevant service rulestipulated that the candidate should not havecompleted the age of 26 years on the 1st day ofJuly of the year in which the selection is made.Such a cut off date was challenged. This Court

considered the various steps required in theprocess of selection and said, "when such arethe different steps in the process of selection

96

the minimum age of suitability of a candidatefor appointment cannot be allowed to dependupon any fluctuating or uncertain date. If the

final stage of selection is delayed and moreoften it happens for various reasons, thecandidates who are eligible on the date ofapplication may find themselves eliminated atthe final stage for no fault of theirs. The date toattain the minimum or maximum age must,

therefore, be specific and determinate as on aparticular date for candidates to apply and forthe recruiting agency to scrutinise theapplications". This Court, therefore, held thatin order to avoid uncertainly in respect ofminimum or maximum age of a candidate.

Which may arise if such an age is linked to theprocess of selection which may taken anuncertain time, it is desirable that such a cutoff date should be with reference to a fixeddate. Therefore, fixing in independent cut offdate, far from being arbitrary, makes for

certainty in determining the maximum age.

6. In the case of Union of India and Anr. v.Sudhir Kumar Jaiswal (1994 4 SCC 212) thedate for determining the age of eligibility wasfixed at 1st of August of the year in which the

examination was to be held. At the time whenthis cut off date was fixed, here used to be onlyone examination for recruitment. Later on, apreliminary examination was also introduced.Yet the cut off date was not modified. TheTribunal held that after the introduction of the

preliminary examination the cut off date hadbecome arbitrary. Negativing this view of theTribunal and allowing the appeal. This CourtCited with approval the decision of this Courtin Parmeshwar Match Works case (supra) andsaid that fixing of the cut off date can be

considered as arbitrary only if it can be lookedupon as so capricious or whimsical as to invitejudicial interference. Unless the date is grossly

97

unreasonable, the court would be reluctant tostrike down such a cut off date.

7. In the present case, the cut off date hasbeen fixed by the State of Rajasthan under itsRules relating to various services withreference to the 1st of January following theyear in which the applications are invited. Allservice Rules are uniform on this point.

Looking to the various dates on which differentdepartments and different heads ofadministration may issue their advertisementsfor recruitment, a uniform cut off date hasbeen fixed in respect of all suchadvertisements as 1st January of the year

following. This is to make for certainty. Such auniform date prescribed under all serviceRules and Regulations makes it easier for theprospective candidates to understand theireligibility for applying for the post in question.Such a date is not so wide off the mark as to

be construed as grossly unreasonable orarbitrary. The time gap between theadvertisement and the cut off date is less thana year. It takes into account the fact that afterthe advertisement, time has to be allowed forreceipt of applications, for their scrutiny, for

calling candidates for interview, for preparing apanel of selected candidates and for actualappointment. The cut off date, therefore,cannot be considered as unreasonable. It was,however, strenuously urged before us that theonly acceptable cut off date is the last date for

receipt of applications under a givenadvertisement. Undoubtedly, this can be apossible cut off date. But there is no basis forurging that this is the only reasonable cut offdate. Even such a date is liable to question ingiven circumstances. In the first place, making

a cut off date dependent on the last date forreceiving applications, makes it more subjectto vagaries of the department concerned,

98

making it dependant on the date when eachdepartment issues an advertisement, and thedate which each department concerned fixes

as the last date for receiving applications. Aperson who may fail on the wrong side of sucha cut off date may well contend that the cut offdate is unfair, since the advertisement couldhave been issued earlier: Or in the alternativethat the cut off date could have been fixed later

at the point of selection or appointment. Suchan argument is always open, irrespective of thecut off date fixed and the manner in which it isfixed. That is by this court has said in the caseof Parameshwaran Match Works(supra) andlater cases that the cut off date is valid unless

it is so capricious or whimsical as to be whollyunreasonable. To say that the only cut off datecan be the last date for receiving applications,appears to be without any basis. In our viewthe cut off date which is fixed in the presentcase with reference to the beginning of the

Calendar year following the date of application,cannot be considered as capricious orunreasonable. On the contrary, it is less proneto vagaries and is less uncertain".

69. As to what would be the effect when a cut off

date is fixed for fulfilling the prescribed qualification

relating to age by a candidate for appointment and the

effect of any non prescription came to be analysed by

the Hon'ble Apex Court in the case of Shankar

K.Mandal and others Vs State of Bihar and others

reported in 2003 (9) SCC 519 after considering its

99

earlier judgments and laid down the principles as

under:

5. Pursuant to the directions contained in theearlier judgment of the High Court as affirmedby this Court, a fresh exercise wasundertaken. Since the present appellants were

not selected, writ petitions were filed beforethe High Court. In the writ petition which wasfiled by 55 persons and disposed of by theDivision Bench the conclusions wereessentially as follows:(1) Some of the writpetitioners (Writ petitioners Nos. 5, 18, 23, 28,

41 and 53) were over age at the time of theirinitial appointment and their cases were,therefore, wholly covered by the directionsgiven by the High Court, and they were notentitled to relaxation of age;(2) So far as writpetitioners Nos. 6, 26, 30 and 55 are

concerned, the stand was that they had notcrossed the age limit at the time of making theapplications for appointment and, therefore,were within the age limit at the time of initialappointment and were, therefore, entitled torelaxation of age in terms of the judgment

passed by the High Court earlier and affirmedby this Court. This plea was turned down onthe ground that what was relevant forconsideration related to the age at the time ofinitial appointment and not making of theapplication;(3) As regards writ petitioner

No.24, he was under age at the time ofappointment. He was permitted to file arepresentation before the Director of PrimaryEducation and the High Court ordered thathis case would be considered afresh;(4)Inrespect of writ petitioners Nos. 9 and 17, it

was noted that they were refused absorptionon the ground that they had not made anyapplication in response to advertisement

100

issued pursuant to the order passed by thisCourt. Since no material was placed tosubstantiate this stand and no reasons had

been communicated for non-absorption,direction was given to considerrepresentations if made by them within onemonth from the date of judgment. The saidjudgment is under challenge in C.A.No.916/1999. Appellants have taken the

stand that in terms of this Court's judgment,a person who was not over age on the date ofinitial appointment was to be considered.Though it was conceded before the High Courtthat they were over age at the time of initialappointment, much would turn as to what is

the date of initial appointment. The HighCourt had not considered as to what was theapplicable rule so far as the eligibilityregarding age is concerned. Learned counselappearing for the respondent-State howeversubmitted that having made a concession

before the High Court that they were over ageon the date of appointment, it is not open tothe appellants to take a different stand. Thecrucial question is whether appellants wereover age on the date of their initialappointment. It is true that there was

concession before the High Court that theywere over age on the date of initialappointment. But there was no concessionthat they were over age at the time of makingthe application. There was no definite materialbefore the High Court as to what was the

eligibility criteria so far as age is concerned.No definite material was placed before theHigh Court and also before this Court to give adefinite finding on that aspect. What happenswhen a cut off date is fixed for fulfilling theprescribed qualification relating to age by a

candidate for appointment and the effect ofany non-prescription has been considered bythis Court in several cases. The principles

101

culled out from the decisions of this Court(See Ashok Kumar Sharma and Ors.v.Chander Shekhar and Anr. (1997 (4) SCC 18,

Bhupinderpal Singh v. State of Punjab (2000(5) SCC 262 and Jasbir Rani and ors. v. Stateof Punjab and Anr. (2002 (1) SCC 124) are asfollows:

(1) The cut off date by reference to which theeligibility requirement must be satisfied bythe candidate seeking a public employmentis the date appointed by the relevant servicerules;

(2) If there is no cut off date appointed by the

rules then such date shall be as appointed forthe purpose in the advertisement calling forapplications; and

(3) If there is no such date appointed then theeligibility criteria shall be applied by reference

to the last date appointed by which theapplications were to be received by thecompetent authority.

6. It has, therefore, to be decided by theauthorities as to which of the three conditions

indicated above were applicable to the facts ofthe case. In the absence of definite material,we think it appropriate to direct theauthorities to take a decision within a periodof four months from today, as to whether theappellants or one of them was eligible by

applying the tests indicated above. Thesedirections shall apply to the writ petitionerswho are appellants in the present appeal andto nobody else. The other directions given bythe High Court so far as the writ petitionersNos. 9, 17 and 24 are concerned do not

warrant any interference as there has been nochallenge by the State Government".

102

70. In the instant case by the impugned order

the age limit has been fixed as "below 53 years as on the

date on which the post of Director became vacant" by

restoring the resolution passed by Governing Council of

3rd respondent at its 44th Governing Council meeting

held on 18.12.2006. The fixing of a cut off date is in the

domain of the rule making authority. Whenever a cut

off date is fixed there will always be some persons who

would fall within the eligible criteria and some persons

outside the eligibility criteria. In the instant case on

hand earlier the age was fixed at 50 years came to be

amended at the 44th Governing Council meeting of the

Institute and it was fixed as 53 years as on the date on

which the vacancy accrued. This resolution when sent

for approval to the Government by the institute came to

be modified as 55 years at the first instance and later

on re-amended as 53 years but fixing the cut off date as

the last date fixed for receipt of applications. It is by

virtue of fixing the last date of receipt of application that

the candidate should be 53 years instead of the date on

which the post became vacant results in systematic

103

elimination of certain candidates including the fifth

respondent herein and as such representations were

submitted which ultimately came to be accepted. In

this background the Governing Council took into

consideration the recommendations of the anomaly

committee and resolved to fix the age as "below 53

years as on the date on which the post became

vacant" which amendment has been approved by the

first respondent-Government by impugned order dated

24.03.2008 Annexure-M. By virtue of such amendment

it would neither prejudice the petitioner nor the fifth

respondent or six respondent. However sixth respondent

having attained the age of superannuation at present it

would have no effect whatsoever on his application. In

that view of the matter neither prejudice or injustice

would be caused to any of the parties by impugned

order. In that view of the matter, I am of the considered

view that Point No.3 and 4 formulated hereinabove has

to be held in the negative i.e., against the petitioner.

71. The age limit initially prescribed for the

appointment to the post of Director was 50 years.

104

Pursuant to the direction issued by this court on

01.03.2006 in W.P.6623/2001 directing the Anamoly

Committee constituted by the institute to consider the

representations of fifth respondent and others seeking

relaxation of qualification and age limit, the Anamoly

Committee recommended for relaxation of age limit as

"below 50 years for external candidates and below 53

years for internal candidates" vide Minutes of the

recommendation dated 22.09.2006 (Annexure-R-1 in

W.P.8085/2008). The said recommendations made by

the Anamoly Committee was placed before the

Governing Council of the third respondent-institute at

its 44th meeting held on 18.12.2006 (Annexure-R-2). In

the said meeting it was resolved by the Governing

Council of 3rd respondent to recommend to the

Government to amend the C & R – 1997 in so far as

appointment to the post of Director of the third

respondent-institute particularly with regard to age

criteria as "below 53 years on the date on which

vacancy of the post of Director accrued in respect of

internal candidates only". The said resolution of the

105

Governing Council of third respondent -institute on

being forwarded to the State Government, came to be

approved with a modification namely instead of

maximum 53 years it was modified as "below 55 years

as on the date on which the post of Director became

vacant in respect of internal candidates only".

Subsequently few scientists aggrieved by such

amendment are said to have submitted representations

to the Government including the petitioner, herein

through Commissioner of Sericulture requesting to relax

the age to "53 years" and to fix the cut-off date as "last

date of application" as the relevant date. The said

representation on being forwarded by the Commissioner

of third respondent-institute to the State Government

came to be considered and recommendation was

accepted by granting approval to amend the C & R

Rules by fixing the age limit as "below 53 years for

internal candidates on the last date fixed for receipt

of applications" vide approval date.26.06.2007

Annexure-E. It is pursuant to this amendment

approved by the State Government, Notification dated

106

15.07.2007, Annexure-F came to be issued by the third

respondent -institute calling for applications from

eligible candidates. It is at this juncture rival

contentions of the parties namely as to the validity of

the approval of amendment accorded by the State as per

Annexure-E requires to be considered, since petitioner

claims that by virtue of said amendment having been

approved by the State as per Annexure-E by fixing the

age limit as below 53 years for internal candidates on

the last date fixed for receipt of applications came to

changed by withdrawing said approval under impugned

order dated 24.03.2008 Annexure-M since it would

amount to changing the rules of the Game particularly

when recruitment process had commenced by which

time a right had accrued to petitioner and more

particularly when the applications had already been

invited for selection and selection committee had also

considered the applications received and had resolved to

recommend the name of the petitioner.

72. Admittedly the Governing Council of the

third respondent-institute at its 44th meeting held on

107

18.12.2006 had resolved to amend the C & R Rules as,

“below 53 years on the date on which vacancy of the

post of Director accrued in respect of internal

candidates only". However, the State Government did

not accept the said resolution passed by Governing

Council of the third respondent-institute but accorded

approval to amend the said rule with modification

namely by fixing the age limit as "below 55 years as on

the date on which the post of Director became

vacant in respect of internal candidates only". As

noted herein supra, the Commissioner for Sericulture

vide letter dated 31.05.2007, Annexure-R-6 forwarded

the representations of 7 Scientists including that of the

petitioner to the State by recommending and requesting

the state government to reconsider its decision and for

fixing the age as "below 53 years as on the last date

of application for internal candidates". Based on the

said recommendation and without there being any

resolution passed by the Governing Council of the third

respondent -institute the State Government approved

the recommendation and fixed the age limit as "below

108

53 years on the last date fixed for receipt of

applications". This amendment dated. 26.06.2007 as

per Annexure-E approved by the State Government was

not in consonance with the resolution passed by 3rd

respondent Governing Council at its 44th Meeting held

on 18.12.2006. In the said meeting it was resolved to

fix the age at 53 years so also in the second approval

(Annexure-E) accorded by the State Government.

However, the date of vacancy to be reckoned was fixed

by the Governing Council in its 44th meeting as "from

the date on which vacancy of the post of Director

accrued" which was modified as "on the last date

fixed for receipt of applications". The State

Government within a short span of four months

accorded its approval of this amendment sought for by

petitioner by changing the rules of recruitment as per

approval dated 26.06.2007, Annexure-E. This approval

order was retraced by the Government and order dated

24.03.2008 Annexure-M impugned herein was issued

which has been already held hereinabove to be legal.

109

In view of the aforesaid discussions this court is of

the considered view that appointment of director to the

third respondent-institute is to be made by the State

Government after considering the recommendations

made by Selection Committee constituted under C & R –

1997. Petitioner would not get any indefeasible right to

seek for being appointed as director of third respondent-

institute merely because his name had been

recommended in the earlier selection process which

admittedly has not been accepted by the State

Government. Hence the impugned order dated

24.03.2008 is hereby affirmed.

Re: Point No.5:

For the reasons aforesaid, I pass the following:

ORDER

(1) Writ Petition No. 15880/2007 and Writ

Petition No. 8085/2008 are hereby dismissed.

(2) Respondents 1 to 3 in Writ Petition

8085/2008 are at liberty to proceed to appoint

110

Director to the third respondent – Institute

from the stage it was stopped.

(3) Costs made easy.

Ordered accordingly.

Sd/- JUDGE

Pl*