1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18

TH

DAY OF NOVEMBER, 2023

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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

BETWEEN:

SRI ASHOK D. SANADI

S/O LATE DINAKAR

AGED ABOUT 59 YEARS

RESIDING AT C/O SHIVANAGOUDA PATIL

NO.205, BHEL LAYOUT

PATTANAGERE (BDA), R.R.NAGAR

BENGALURU – 560 098.

... PETITIONER

(BY SRI RANGANATH S.JOIS, ADVOCATE A/W

SRI M.KRISHNE GOWDA, ADVOCATE)

AND:

1 . THE CHIEF SECRETARY

GOVERNMENT OF KARNATAKA

VIDHANASOUDHA

BENGALURU – 560 001.

2 . CHAIRPERSON

SELECTION COMMITTEE

MINISTER-IN-CHARGE

DEPARTMENT OF WOMEN AND

CHILD DEVELOPMENT

VIDHANA SOUDHA

BENGALURU – 560 001.

R

Page No.1 is retyped and replaced vide chamber order dated 21.11.2023.

2

3 . THE PRINCIPAL SECRETARY

DEPARTMENT OF WOMEN AND

CHILD DEVELOPMENT AND

EMPOWERMENT OF DIFFERENTLY ABLED

AND SENIOR CITIZENS

GATE NO.3, 1

ST

FLOOR

M.S.BUILDING, DR.B.R.

AMBEDKAR VEEDHI

BENGALURU – 560 001.

4 . THE DIRECTOR

DEPARTMENT OF WOMEN AND

CHILD DEVELOPMENT

M.S.BUILDING

BENGALURU – 560 001.

5 . SRI K.NAGANNA GOWDA

S/O LATE EREGOWDA

3

RD

CROSS, V.V.NAGAR

KALLAHALLI

MANDYA – 571 401.

... RESPONDENTS

(BY SRI SPOORTHY HEGDE N., HCGP FOR R1 TO R4;

SRI G.B.SHARATH GOWDA, ADVOCATE FOR R5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASI DE THE

PROCEEDINGS DATED 21/10/2022 AND SUBSEQUENT ORDERS

PASSED ON THE STRENGTH OF SAID PROCEEDINGS AS

ANNEXURE-H; DIRECT THE R2 TO CONDUCT THE FRESH

SELECTION PROCESS ACCORDANCE WITH LAW AND PROCEDURE

PRESCRIBED UNDER THE SAID ACT.

Page No.2 is retyped and replaced vide chamber order dated 21.11.2023.

3

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED

FOR ORDERS ON 06.11.2023, COMING ON FOR PRONOUNCEME NT

THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

The petitioner is before this Court calling in ques tion

Notification dated 21-10-2022 issued by the 3

rd

respondent in

selecting and appointing the 5

th

respondent as the Chair Person of

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

Commission’ for short).

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

The petitioner and the 5

th

respondent became applicants

pursuant to a notification issued by Government of Karnataka on

31-01-2022 calling for applications from eligible c andidates for

appointment to the post of Chairperson of the Commi ssion. The

applications lead to scrutiny of documents so submitted by both the

petitioner and the 5

th

respondent. The 5

th

respondent comes to be

appointed as the Chairperson of the Commission. The petitioner

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

newspaper and then applies for all the requisite do cuments of

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selection or proceedings of selection under the Right to Information

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

this Court calling in question entire proceedings that took place

leading to the appointment of the 5

th

respondent as Chairperson of

the Commission and has also sought consequential pr ayer seeking

annulment of appointment of the 5

th

respondent and conduct of

fresh selection process in accordance with law. Thi s Court on

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

and appointment of the 5

th

respondent to be subject to the result of

the petition.

3. Heard Sri Ranganath S.Jois, learned counsel app earing for

the petitioner, Sri Spoorthy Hegde, learned High Court Government

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

Gowda, learned counsel appearing for respondent No.5.

4. The learned counsel Sri Ranganath S.Jois, appea ring for

the petitioner would vehemently contend that the 5

th

respondent is

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

is his submission that the 5

th

respondent is a political representative

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

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

petitioner who is practicing as an Advocate and has been

completely involved in the cases concerning juvenil e justice

appearing before the Juvenile Justice Board from 2009 to 2017 as

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

Bengaluru. It is his submission that comparative credentials of the

two would clearly lead to the annulment of appointm ent of the 5

th

respondent and appointment of the petitioner. He wo uld seek

quashment of entire proceedings and the resultant appointment of

the petitioner.

5. On the other hand, the 5

th

respondent/appointee has filed

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

Gowda appearing for the 5

th

respondent would contend that the 5

th

respondent long before the selection process itself had demitted

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

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

documents that are necessary for appointment of the 5

th

respondent are considered by the selection committe e and

appointment is made. He would submit that none of t he grounds

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

5

th

respondent to be set aside.

6. The State has also filed its statement of objec tions. The

learned counsel appearing for respondents 1 to 4 ha s contended

that the wisdom of the selection committee in appoi nting the 5

th

respondent cannot be interfered with under Article 226 of the

Constitution of India unless the appointment is con trary to the

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

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

Therefore, the petition should be dismissed.

7. I have given my anxious consideration to the su bmissions

made by the respective learned counsel and have per used the

material on record. In furtherance whereof what fal ls for my

consideration is “whether the appointment of the 5

th

respondent as Chairperson of the Commission is viti ated on

account of statutory aberration?”

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8. The Government of India notifies the Commission s for

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

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

Commission for Protection of Child Rights. Section 17 reads as

follows:

“17. Constitution of State Commission for Protection

of Child Rights.—(1) A State Government may constitute a

body to be known as the ………(name of the State) Comm ission

for Protection of Child Rights to exercise the powers conferred

upon, and to perform the functions assigned to, a S tate

Commission under this chapter.

(2) The State Commission shall consist of the following

Members, namely:—

(a) a Chairperson who is a person of eminence and has

done outstanding work for promoting the welfare of

children; and

(b) six Members, out of which at least two shall b e women,

from the following fields, to be appointed by the State

Government from amongst persons of eminence, abilit y,

integrity, standing and experience in,—

(i) education;

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

(iii) juvenile justice or care of neglected or marginalized

children or children with disabilities;

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

(v) child psychology or sociology; and

(vi) laws relating to children.

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(3) The headquarter of the State Commission shall be at

such place as the State Government may, by notification,

specify.”

(Emphasis supplied)

Section 18 deals with appointment of Chairperson an d other

Members. Section 18 reads as follows:

“18. Appointment of Chairperson and other

Members.—The State Government shall, by notification,

appoint the Chairperson and other Members:

Provided that the Chairperson shall be appointed on the

recommendation of a three Member Selection Committe e

constituted by the State Government under the Chairmanship of

the Minister-in-charge of the Department dealing with children.”

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

Chairperson and other Members. Section 36 of the A ct deals with

the power of the State Government to make Rules. I t reads as

follows:

“36. Power of State Government to make rules.—

(1) The State Government may, by notification,

make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality

of the foregoing power, such rules may provide for all or any of

the following matters, namely:—

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(a) terms and conditions of service of the Chairpe rson and

Members of the State Commission and their salaries and

allowances under Section 20;

(b) the procedure to be followed by the State Comm ission in

the transaction of its business at a meeting under sub-

section (4) of Section 10 read with Section 24;

(c) the powers and duties which may be exercised a nd

performed by the Secretary of the State Commission

under sub-section (2) of Section 21;

(d) the salary and allowances and other terms and conditions

of service of officers and other employees of the State

Commission under sub-section (3) of Section 21; and

(e) form of the statement of accounts and other records to be

prepared by the State Commission under sub-section (1)

of Section 30.

(3) Every rule made by the State Government under t his

section shall be laid, as soon as may be after it is made, before

each House of the State Legislature where it consis ts of two

Houses, or where such State Legislature consists of one House,

before that House.”

(Emphasis supplied)

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

State Government notifies the Rules viz., the Karna taka State

Commission for Protection of Child Rights Rules, 2010 (hereinafter

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

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

reads as follows:-

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“3. Eligibility for appointment as Chairperson and

other Members. – (1) No person having any past reco rd of

violation of human rights especially child rights o r criminal

conviction shall be eligible for appointment as Cha irperson

or other Members of the Commission. The Chairperson or the

Members of the Commission, the person shall fulfill the

following criteria:-

(a) the person shall have at least five years of work

experience in the field of child rights, child

protection and advocacy for upholding the rights of

children;

(b) the person shall not be an office-bearer or member

of any political party.

(2) The persons selected for the post of

Chairperson/ Members shall not hold any other post or be

affiliated to any Governmental, quasi-governmental,

public sector, non-governmental, private organizati on or

hold any other position whether for profit or not.”

(Emphasis supplied)

Rule 3 deals with eligibility for appointment as Chairperson and

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

and other Members. It reads as follows:

“6. Term of office of Chairperson and other

Members. – (1) The Chairperson shall, unless removed from

office under Section 7 read with Section 24 of the Act, hold

office for a period of three years, or till the age of sixty five

years, whichever is earlier.

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(2) Every Member shall, unless removed from office

under Section 7 read with Section 24 of the Act, hold office for a

period of three years, or till the age of sixty years, whichever is

earlier.

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

sub-rule (2), -

(a) a person who has held the office of chairperson shall be

eligible for renomination; and

(b) a person who has held the office of a Member shall be

eligible for renomination as a member or nomination as a

Chairperson:

Provided that a person who has held an office of

Chairperson or Member for two terms, in any capacity, shall not

be eligible for renomination as Chairperson or, as Member.

(4) If the Chairperson is unable to discharge his functions

owing to illness or other incapacity, the State Government shall

nominate any other member to act as Chairperson and the

Member so nominated shall hold office of Chairperson until the

Chairperson resumes office or for the remainder of his term.

(5) The Chairperson or a Member may, by writing und er

his hand addressed to the State Government, resign his office at

any time.

(6) Any vacancy caused by death, resignation or any

other reason shall be filled up in accordance with the provisions

of sub-section (2) of Section 8 of the Act.”

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

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

any past record of violation of human rights especially child rights

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or criminal conviction shall be eligible for appoin tment as

Chairperson or other Members. This is the first rung of

disability. The Chairperson shall fulfill certain conditions as

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

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

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

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

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

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

person selected for the post of Chairperson or Members should not

hold any other post of governmental, quasi governme ntal, public

sector, non-governmental or private organization whether for profit

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

bedrock of eligibility and ineligibility as depicted under the Rules,

the case at hand requires consideration.

9. Government of Karnataka issues a notification f or

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

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

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and the maximum age limit of any applicant was at 6 2 years. As

obtaining under Rule 3, the notification also contained that one

should have work experience in the field of child r ights, child

protection and advocacy for upholding the rights of children. The

petitioner and the 5

th

respondent became applicants. The petitioner

is not selected but the 5

th

respondent is. Contending that the

petitioner comes to know of the appointment of the 5

th

respondent

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

question the appointment of the 5

th

respondent as Chairperson,

projecting a two pronged attack – one projecting the ineligibility

on the score that the 5

th

respondent is an office bearer or a Member

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

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

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

advocacy for upholding the rights of children and in juxtaposition,

the 5

th

respondent does not have such qualification.

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

attack i.e., whether the 5

th

respondent has, on the date of selection

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

party. The 5

th

respondent has filed his statement of objections. He

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

Bharatiya Janata Party, but resigned from the primary membership

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

demonstrate his resignation from the primary member ship of the

party appended to the statement of objections which depicts that

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

Notification for selection, as observed hereinabove, is issued on

31-01-2022, close to 15 months after the resignatio n of the 5

th

respondent from the political party. Therefore, the first pronged

attack that the 5

th

respondent is an office bearer or member of a

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

notification the 5

th

respondent was neither an office bearer, nor a

member of any political party.

11. The second pronged attack is with regard to co mparative

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

or advocacy for upholding rights of children. The petitioner claims

15

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

Authority from 2009 to 2017 and has fought various cases which

concern juvenile justice and has worked extensively on behalf of

juveniles. In juxtaposition, the 5

th

respondent has produced

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

field of child rights from 2001. Certificates of several participations

in symposiums, awards and other encomiums by way of certificates

given to the 5

th

respondent form part of the statement of

objections. Apart from the same, the 5

th

respondent has also placed

on record several documents that would drive home t hat the 5

th

respondent is fighting for child rights or has been advocating the

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

12. The Selection Committee has looked into the cre dentials

produced by both the petitioner and the 5

th

respondent and has

found it fit to choose the 5

th

respondent as a Chairperson in terms

of the analysis of the Selection Committee. The Sel ection

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

committee. The analysis and consideration of docume nts of both

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the petitioner and the 5

th

respondent is by the Selection Committee.

The Selection Committee has chosen the 5

th

respondent to be a

better experienced candidate than the petitioner to hold the post of

Chairperson of the Commission. This Court exercisi ng its

jurisdiction under Article 226 of the Constitution would not weigh

the credentials qua experience of both the petitioner and the 5

th

respondent, and come to conclude that the experienc e of the

petitioner far outweighs the experience of the 5

th

respondent. This

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

the Constitution of India.

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

decide who is better qualified, qua their experience and obliterate

an appointment made by the Selection Committee, vir tually sitting

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

The discretion available to this Court is exercisable only in certain

circumstances, qua challenge to an appointment made by the

Selection Committee, which would be arbitrariness a nd such

arbitrariness should be palpable or demonstrable. The other would

be that the selection and appointment should suffer from certain

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

existing in the challenge to the appointment of the 5

th

respondent.

14. Reference being made to the judgment of the Ap ex Court

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

KASHMIR

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in the circumstances, becomes apposite. The Apex

Court has held as follows:

“Selection Process for Public Employment : Interfer ence

by Courts:

“65. Before proceeding further, it is necessary to

preface our judgment with the view that Courts in I ndia

generally avoid interfering in the selection proces s of

public employment, recognising the importance of

maintaining the autonomy and integrity of the selec tion

process. The Courts recognise that the process of

selection involves a high degree of expertise and

discretion and that it is not appropriate for Court s to

substitute their judgment for that of a selection

committee. It would be indeed, treading on thin ice for us

if we were to venture into reviewing the decision o f

experts who form a part of a selection board. The law on

the scope and extent of judicial review of a selection process

and results thereof, may be understood on consideration of the

following case law:

i) In Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (19 90)

1 SCC 305 : AIR 1990 SC 434, this Court clarified t he

scope of judicial review of a selection process, in the

following words:

1

2023 SCC OnLine SC 344

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“9…It is needless to emphasise that it is not

the function of the court to hear appeals over the

decisions of the selection committees and to

scrutinise the relative merits of the candidates.

Whether the candidate is fit for a particular post or not

has to be decided by the duly constituted selection

committee which has the expertise on the subject. The

court has no such expertise. The decision of the

selection committee can be interfered with only on

limited grounds, such as illegality or patent

material irregularity in the constitution of the

committee or its procedure vitiating the selection,

or proved malafides affecting the selection etc…..”

ii) In a similar vein, in Secy. (Health) Deptt. Of Health &

F.W. v. Dr. Anita Puri, (1996) 6 SCC 282, this Cour t

observed as under as regards the sanctity of a selection

process and the grounds on which the results thereof may

be interfered with:

“9. … It is too well settled that when a

selection is made by an expert body like the Public

Service Commission which is also advised by

experts having technical experience and high

academic qualification in the field for which the

selection is to be made, the courts should be slow

to interfere with the opinion expressed by experts

unless allegations of mala fide are made and

established. It would be prudent and safe for the

courts to leave the decisions on such matters to th e

experts who are more familiar with the problems

they face than the courts. If the expert body

considers suitability of a candidate for a specifie d

post after giving due consideration to all the

relevant factors, then the court should not

ordinarily interfere with such selection and

evaluation…….”

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

Thimmaiah v. Union Public Service Commis-sion, (2008) 2

SCC 119, in the following words:

“21. Now, comes the question with regard to the

selection of the candidates. Normally, the

recommendations of the Selection Committee cannot b e

challenged except on the ground of mala fides or serious

violation of the statutory rules. The courts cannot sit as

an Appellate Authority to examine the recommendatio ns

of the Selection Committee like the court of appeal. This

discretion has been given to the Selection Committee only

and courts rarely sit as a court of appeal to examine the

selection of the candidates nor is the business of the

court to examine each candidate and record its opinion…

xxx

30. We fail to understand how the Tribunal can sit

as an Appellate Authority to call for the personal records

and constitute Selection Committee to undertake thi s

exercise. This power is not given to the Tribunal and it

should be clearly understood that the assessment of the

Selection Committee is not subject to appeal either before

the Tribunal or by the courts. One has to give credit to

the Selection Committee for making their assessment and

it is not subject to appeal. Taking the overall view of ACRs

of the candidates, one may be held to be very good and

another may be held to be good. If this type of

interference is permitted then it would virtually amount

that the Tribunals and the High Courts have started

sitting as Selection Committee or act as an Appella te

Authority over the selection. It is not their domain, it

should be clearly understood, as has been clearly held by

this Court in a number of decisions…..”

iv) Om Prakash Poplai and Rajesh Kumar

Maheshwari v. Delhi Stock Exchange Association

Ltd., (1994) 2 SCC 117, was a case where an appeal was

filed before this Court challenging the selection o f

members to the Delhi Stock Exchange on the ground t hat

the Selection Committee formed for the aforesaid

20

purpose, arbitrarily favoured some candidates and w as

thus, against Article 14. This Court rejected the allegation

of favouritism and bias by holding as under:

“5. …the selection of members by the Expert

Committee had to be done on the basis of an objecti ve

criteria taking into consideration experience, professional

qualifications and similar related factors. In the present

cases, we find that certain percentage of marks wer e

allocated for each of these factors, namely, educational

qualifications, experience, financial background an d

knowledge of the relevant laws and procedures pertaining

to public issues etc. Of the total marks allocated only 20

per cent were reserved for interviews. Therefore, t he

process of selection by the Expert Committee was not left

entirely to the sweet-will of the members of the

Committee. The area of play was limited to 20 per c ent

and having regard to the fact that the members of t he

Expert Committee comprised of two members nominated

by the Central Government it is difficult to accept the

contention that they acted in an unreasonable or arbitrary

fashion……”

66. Thus, the inexorable conclusion that can be

drawn is that it is not within the domain of the Co urts,

exercising the power of judicial review, to enter i nto the

merits of a selection process, a task which is the

prerogative of and is within the expert domain of a

Selection Committee, subject of course to a caveat that if

there are proven allegations of malfeasance or viol ations

of statutory rules, only in such cases of inherent

arbitrariness, can the Courts intervene.

67. Thus, Courts while exercising the power of

judicial review cannot step into the shoes of the S election

Committee or assume an appellate role to examine

whether the marks awarded by the Selection Committe e

in the viva-voce are excessive and not correspondin g to

their performance in such test. The assessment and

evaluation of the performance of candidates appeari ng

before the Selection Committee/Interview Board shou ld

be best left to the members of the committee. In li ght of

21

the position that a Court cannot sit in appeal agai nst the

decision taken pursuant to a reasonably sound selec tion

process,……….”

(Emphasis supplied)

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

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

of the Selection Committee or assume an appellate role to examine

whether the marks awarded by the Selection Committe e was not

corresponding to their performance in the test. Th e issue before

the Apex Court was awarding of marks by the Selection Committee

was erroneous. The Apex Court holds that the constitutional Courts

cannot interfere in awarding of marks. I deem it ap propriate to

paraphrase the words ‘ awarding of marks ’ to that of

consideration of ‘relative experience’ in the case at hand. Even

then, the inexorable conclusion is that, this Court cannot step into

the shoes of the Selection Committee or assume an a ppellate role,

over the selection made. Thus, fails the challenge to the

appointment of the 5

th

respondent, and the failure would lead to

dismissal of the petition.

22

15. Finding no merit in the petition, the petition stands

dismissed.

Sd/-

J

UDGE

bkp

CT:MJ