Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.6465 OF 2015

(Arising out of S.L.P.(Civil) No.9266 of 2012)

Madras Institute of Development

Studies and Another …..Appellant(s)

versus

Dr. K. Sivasubramaniyan and others ..Respondent(s)

with

CIVIL APPEAL No.6466 OF 2015

(Arising out of SLP (Civil) No.10022 of 2012)

Dr. S. Anandhi and others ….Appellant(s)

versus

Dr. K. Sivasubramaniyan and others ..Respondent(s)

JUDGMENT

M. Y. EQBAL, J.

Leave granted.

2.These appeals by special leave are directed against the

Judgment and order dated 09.01.2012 passed by the High

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Page 2 Court of Judicature at Madras in W.A. No. 167 of 2008,

whereby the order passed by the learned Single Judge

dismissing the writ petition filed by respondent No.1 herein

has been reversed and the order dated 14.8.2006 of the

Appellant No.-Institute approving appointment of Respondent

Nos. 2 to 6 (namely Dr. S. Anandhi, Dr. Brinda Viswanathan,

Dr. L. Venkatachalam, Dr. Ajit Menon and Dr. Kripa

Ananthpur) to the post of Associate Professor has been

quashed.

3.The facts of the case lie in a narrow compass.

4.The appellant Institute issued an advertisement calling

for applications for the positions of Professor, Associate

Professor and Assistant Professor. The said advertisement

contained a description of the three qualifications required to

be possessed by the candidate. Several persons including

respondent No.1-writ petitioner submitted application for

appointment to the post of Associate Professor. The

short-listing of the candidates was done by the Director of the

Institute in consultation with the Chairman after informal

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Page 3 consultation with senior Professors for evolving the criteria for

short-listing of the candidates. The Selection Committee

consisting of three noted Social Scientists as contemplated

under the Rules conducted interviews and recommended a

panel of five names. Thereafter, the Executive Council by

Order dated 14.8.2006 approved the appointment of various

persons to the posts of Professor, Associate Professor and

Assistant Professor. Since the Institute had advertised for

three posts, the first three i.e. respondent nos. 2, 3 and 4 were

initially approached for the post of Associate Professor.

5.The respondent No.1-writ petitioner challenged the

aforesaid decision dated 14.8.2006 on the ground inter alia

that the selection was not done strictly as per the

qualifications mentioned in the advertisement and that the

respondent No.1-writ petitioner having fulfilled all the

requirements ought to have been selected to one of the three

vacancies of Associate Professor. It was also alleged by the

respondent No.1-writ petitioner that there has been infraction

of the recruitment rules.

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Page 4 6.The appellant institute denied and disputed the

allegation regarding the infraction of the recruitment rules and

further denied and disputed the allegations of irregularities in

the selection process.

7.The learned Single Judge of the Madras High Court

dismissed the writ petition by a reasoned judgment on two

grounds. Firstly, it was held that the writ petition was not

maintainable inasmuch as the Institute is not a “State” within

the meaning of Article 12 of the Constitution of India. The

learned Single Judge secondly held that there is no

discrepancy with regard to the qualification mentioned in the

advertisement and the service rules. Finally, learned Single

Judge held that respondent No.1-writ petitioner having taken

part in the selection process without raising any objection

cannot challenge the selection process after being declared

unsuccessful by not including his name in the Selection List.

8.Aggrieved by the said judgment, the respondent preferred

the writ appeal before the Division Bench of the Madras High

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Page 5 Court. The Division Bench allowed the appeal and reversed

the order passed by the learned Single Judge. On the issue of

maintainability of writ petition, the Division Bench in the

impugned order held that the duties being performed by the

appellant-Institute are in the nature of public function and,

therefore, it would come within the ambit of ‘State’ under

Article 12 of the Constitution of India. The Division Bench on

the merit of the case came to the conclusion that there is a

variation in the advertisement from the prescribed rules and

as such the entire selection process is vitiated in law.

According to the Division Bench, the advertisement issued by

the Institute and the constitution of Selection Committee are

totally contrary to the Rules, consequently, the order dated

14.8.2006 approving the appointment of the respondent is

liable to be quashed.

9.Hence, the present appeals by special leave.

10.We have heard learned counsel appearing for the

appellants and the contesting respondents including the

selected candidates.

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Page 6 11.Mr. N.L. Rajah, learned counsel appearing for the

appellant-Institute, assailed the judgment passed by the

Division Bench on various grounds. On the question of

maintainability of the writ petition, it was submitted that the

appellant-Institute was not created by any statute. It was

founded as a trust and no part of the corpus of the Institution

was held by the Government. The participation of the State in

the affairs of the Institution is not under any special statute.

The Division Bench, therefore, has not correctly appreciated

the facts and the law while coming to the conclusion that the

appellant Institute is a State.

12.Mr. Rajah, learned counsel further contended that

although the grievance of the writ petitioner is that he has not

been selected but no relief has been prayed to consider him to

the said post. The relief claimed in the writ petition is only to

quash the decision by which aforesaid respondents have been

selected.

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Page 7 13.Lastly, learned counsel submitted that the respondent

writ petitioner participated in the selection process without

challenging the alleged variance in the advertisement and the

rules and without challenging the constitution of the

Committee. He cannot thereafter challenge the same after

being declared unsuccessful for the said post.

14.On the other hand, Ms. V. Mohana, learned senior

counsel appearing for the respondent writ petitioner,

supported the finding recorded by the Division Bench of the

High Court. Learned counsel contended that the

qualifications prescribed in the advertisement are totally in

adherence with the Rules. According to the learned counsel,

the entire proceeding for appointment is vitiated by reason of

variance in the advertisement and the rules and also

irregularity in the constitution of the Committee who

conducted interview for selection of the candidates.

15.Indisputably, the Madras Institute of Development

Studies (MIDS) is governed by its Faculty Recruitment Rules,

2001. The Rules apply to the selection and appointment of

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Page 8 persons to the post of Assistant Professor (Research

Associates), Associate Professor (Fellow) and Professor we are

here concerned with the qualifications required for

appointment of a person to the post of Associate Professor.

The Rules read as under:-

“Associate Professor (Rule)

Good academic record with a doctoral

degree or equivalent published work with

five years of experience of teaching and/or

research.”

16.The qualification mentioned for the post of Associate

Professor in the advertisement reads as under:-

“Associate Professor (ADVT)

Good academic record with a doctoral

degree in Social Sciences, with at least 5

(five) published papers in reputed

national/international journals/ edited

volume- or equivalent thereof- and

experience of research/teaching at

University/national level research

institutions.”

17.From a reading of the necessary qualifications mentioned

in the Rules and the advertisement, it is manifest that a

candidate must have a good academic record with a doctoral

degree with 5 years experience in research/teaching at

University or National level research Institute.

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Page 9 18.The contention of the respondent no.1 that the

short-listing of the candidates was done by few professors

bypassing the Director and the Chairman does not appear to

be correct. From perusal of the documents available on

record it appears that short-listing of the candidates was done

by the Director in consultation with the Chairman and also

senior Professors. Further it appears that the Committee

constituted for the purpose of selection consists of eminent

Scientists, Professor of Economic Studies and Planning and

other members. The integrity of these members of the

Committee has not been doubted by the respondent- writ

petitioner. It is well settled that the decision of the Academic

Authorities about the suitability of a candidate to be appointed

as Associate Professor in a research institute cannot normally

be examined by the High Court under its writ jurisdiction.

Having regard to the fact that the candidates so selected

possessed all requisite qualifications and experience and,

therefore, their appointment cannot be questioned on the

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Page 10 ground of lack of qualification and experience. The High Court

ought not to have interfered with the decision of the Institute

in appointing respondent nos. 2 to 4 on the post of Associate

Professor.

19.Be that as it may, the respondent, without raising any

objection to the alleged variations in the contents of the

advertisement and the Rules, submitted his application and

participated in the selection process by appearing before the

Committee of experts. It was only after he was not selected for

appointment, turned around and challenged the very selection

process. Curiously enough, in the writ petition the only relief

sought for is to quash the order of appointment without

seeking any relief as regards his candidature and entitlement

to the said post.

20.The question as to whether a person who consciously

takes part in the process of selection can turn around and

question the method of selection is no longer res integra.

21.In Dr. G. Sarana vs. University of Lucknow & Ors .,

(1976) 3 SCC 585, a similar question came for consideration

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Page 11 before a three Judges Bench of this Court where the fact was

that the petitioner had applied to the post of Professor of

Athropology in the University of Lucknow. After having

appeared before the Selection Committee but on his failure to

get appointed, the petitioner rushed to the High Court

pleading bias against him of the three experts in the Selection

Committee consisting of five members. He also alleged doubt

in the constitution of the Committee. Rejecting the

contention, the Court held:-

“15. We do not, however, consider it necessary

in the present case to go into the question of the

reasonableness of bias or real likelihood of bias

as despite the fact that the appellant knew all

the relevant facts, he did not before appearing

for the interview or at the time of the interview

raise even his little finger against the

constitution of the Selection Committee. He

seems to have voluntarily appeared before the

committee and taken a chance of having a

favourable recommendation from it. Having done

so, it is not now open to him to turn round and

question the constitution of the committee. This

view gains strength from a decision of this Court

in Manak Lal’s case where in more or less

similar circumstances, it was held that the

failure of the appellant to take the identical plea

at the earlier stage of the proceedings created an

effective bar of waiver against him. The following

observations made therein are worth quoting:

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Page 12 “It seems clear that the appellant wanted to

take a chance to secure a favourable report from

the tribunal which was constituted and when he

found that he was confronted with an

unfavourable report, he adopted the device of

raising the present technical point.”

22.In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3

SCC 486, similar view has been reiterated by the Bench which

held that:-

“9. Before dealing with this contention, we must

keep in view the salient fact that the petitioners

as well as the contesting successful candidates

being respondents concerned herein, were all

found eligible in the light of marks obtained in

the written test, to be eligible to be called for oral

interview. Up to this stage there is no dispute

between the parties. The petitioners also

appeared at the oral interview conducted by the

Members concerned of the Commission who

interviewed the petitioners as well as the

contesting respondents concerned. Thus the

petitioners took a chance to get themselves

selected at the said oral interview. Only because

they did not find themselves to have emerged

successful as a result of their combined

performance both at written test and oral

interview, they have filed this petition. It is now

well settled that if a candidate takes a calculated

chance and appears at the interview, then, only

because the result of the interview is not

palatable to him, he cannot turn round and

subsequently contend that the process of

interview was unfair or the Selection Committee

was not properly constituted. In the case of Om

Prakash Shukla v. Akhilesh Kumar Shukla

1

it

has been clearly laid down by a Bench of three

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Page 13 learned Judges of this Court that when the

petitioner appeared at the examination without

protest and when he found that he would not

succeed in examination he filed a petition

challenging the said examination, the High

Court should not have granted any relief to such

a petitioner.

23.In Manish Kumar Shahi vs. State of Bihar , (2010) 12

SCC 576, this Court reiterated the principle laid down in the

earlier judgments and observed:-

“We also agree with the High Court that after

having taken part in the process of selection

knowing fully well that more than 19% marks

have been earmarked for viva voce test, the

petitioner is not entitled to challenge the criteria

or process of selection. Surely, if the petitioner’s

name had appeared in the merit list, he would

not have even dreamed of challenging the

selection. The petitioner invoked jurisdiction of

the High Court under Article 226 of the

Constitution of India only after he found that his

name does not figure in the merit list prepared

by the Commission. This conduct of the

petitioner clearly disentitles him from

questioning the selection and the High Court did

not commit any error by refusing to entertain

the writ petition.”

24.In the case of Ramesh Chandra Shah and others vs.

Anil Joshi and others, (2013) 11 SCC 309, recently a Bench

of this Court following the earlier decisions held as under:-

“In view of the propositions laid down in the

above noted judgments, it must be held that

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Page 14 by having taken part in the process of

selection with full knowledge that the

recruitment was being made under the

General Rules, the respondents had waived

their right to question the advertisement or

the methodology adopted by the Board for

making selection and the learned Single

Judge and the Division Bench of the High

Court committed grave error by entertaining

the grievance made by the respondents.”

25. So far as the finding recorded by the Division Bench on

the question of maintainability of the writ petition on the

ground that the appellant Institute is a ‘State’ within the

meaning of Article 12 of the Constitution, we are not bound to

go into that question, which is kept open.

26.Taking into consideration the entire facts of the case and

the law laid down by this Court in a catena of decisions, we

are of the definite opinion that the Division Bench has

committed grave error in law by passing the impugned

judgment reversing the order passed by the learned Single

Judge.

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Page 15 27.We, therefore, allow these appeals, set aside the

impugned judgment and order passed by the Division Bench

in Writ Appeal No.167 of 2008 and hold that the writ

petitioner-respondent has no merit in the case inasmuch as

there is no illegality in the decision dated 14.08.2006 taken by

the appellant-Institute for appointment of aforesaid

respondent nos. 2 to 6 to the post of Associate Professor.

…………………… J.

(M.Y. Eqbal)

…………………… J.

(Arun Mishra)

New Delhi

August 20, 2015

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