H.L. Dattu, J.
1. Kidwai Memorial Institute of Oncology, Bangalore, is an autonomous body and is registered as a society under the provisions of the Karnataka Societies Registration Act, 1960. It is a State within the meaning of Article 12 of the Constitution of India. The Governing Council constituted by the Government of Karnataka is the authority responsible for the achievement of the objects for which the Institute was made autonomous by the Government of Karnataka vide its order dated 27.12.1979.
2. The Governing Council has approved for adoption of the Pay and recruitment Rules and Miscellaneous Provisions in respect of the employees of the Institute in its meeting held on 22.8.1981 and the same is published vide its official memorandum dated 28.1.1982. The Rules are known as the Kidwai Memorial Institute of Oncology (Pay, Recruitment, Conditions of Service and Miscellaneous Provisions) Rules 1981. Apart from others, the Rules provides for direct recruitment of the personnel for the services of the Institute.
Rule 11 of the Rules speaks of direct recruitment. The said Rule has some relevance for the purpose of this case. Therefore, it is extracted and it reads as under:
'11. Direct Recruitment: The Governing Council may at its discretion arrange Direct Recruitment at any level to meet the recruitment of specialisation and or to attract highly qualified personnel for the services of the Institute. The Governing Council at its discretion may relax the prescribed qualification and experience in special circumstances.'
3. Rule 16 of the Rules envisages that in respect of matters not specifically provided in the Rules relating to pay, recruitment, and promotion, the appropriate Rules of the State Government will apply to the employees of the Institute.
4. In these two Writ Petitions, we are primarily concerned with the appointment of respondent No. 2 by the first respondent Institute to the post of Assistant Professor of Medical Oncology in the first respondent Institute.
5. Respondent No. 2, who had worked as Lecturer in Medical College, Nagpur, and who later joined the first respondent Institute on 1.2.1984 as Lecturer in Medical Oncology and who was working as Assistant Professor of Medical Oncology on additional charge from 9.4.1990 is appointed as Assistant Professor by the Selection Committee constituted for that purpose, and has reported for duty on 10.3.2000 on her appointment as Assistant Professor of Medical Oncology and continues to work in that capacity till today.
6. Now a brief profile of the petitioners before this Court.
Petitioner in W.P.No. 10130/2000: Petitioner is a holder of D.M. in Medical Oncology. Initially, he was appointed as a Lecturer in the first respondent Institute on 15.3.1990. He worked as such till he was selected and appointed as Assistant Professor of Medical Oncology in the Institute, till his appointment was cancelled by the Institute by an order dated 15.4.1996, pursuant to an order made by this Court in W.P.No. 7978/1993 disposed off on 6.2.1996 to which Writ Petition, I will refer to it in detail a little later.
7. Petitioner in W.P.No. 12003/2000: Petitioner possesses the qualification of M.B.B.S. M.D. in General Medicine and super speciality of D.M. in Medical Oncology. Initially he worked as Lecturer in the first respondent Institute and at a later point of time, he was appointed as Assistant Professor for three years. At the time of filing of the petition, he was working as Incharge Professor of Medical Oncology in the first respondent Institute.
8. The selection and appointment of the petitioner in W.P. No. 10130/2000 to the post of Assistant Professor, pursuant to a notification dated 2.1.1992 came to be quashed by this Court in the Writ Petition filed by respondent No. 2 in W.P.No. 7978/1993 by an order made on 6.2.1996, holding that the notification issued by the first respondent institute was bad in law, since it failed to notify the reservation of posts subject-wise and it mentions only the number of posts reserved without indicating the particular post reserved subject-wise.
After disposal of the Writ Petition, the Institute had issued notification dated 5.5.1994 inviting applications from eligible and suitable candidates to fill up the vacant posts in Group A, B, C and D in the Institute. Sl. No. 1 pertains to the post of Professors, while SI.No. 2 pertains to the post of Assistant Professors in various specialities. The last date for receipt of the application was on 19.6.1994. As could be seen from the notification at SI. No. 2, six posts of Assistant Professors including the post of Assistant Professor of Medical Oncology was notified for selection. The selection process did not go through for various reasons.
By notification dated 12.1.1996, the posts notified in the earlier notification dated 5.5.1994 were again re-notified and advertised by the first respondent Institute, specifically mentioning that persons who had applied earlier need not apply again.
In the notification, regarding age limit, it was mentioned that the candidate must have attained the age of 40 years as on 1.5.1994. Therefore, it is clear that the cut -off date for the purpose of age limit is 1.5.1994 and any candidate for the post of Professor or Assistant Professor not satisfying the age limit on the cut-off date is ineligible to apply for the post much less to be considered for the said post.
Pursuant to the aforesaid notification, petitioner had applied for the post of Professor of Medical Oncology and since he was not called for the interview, which was fixed on 7.2.1999, petitioner was before this Court in W.P.No. 43270/1999 for appropriate directions to the Institute. The relief sought in the petition was opposed by respondent Institute, on the ground, that the petitioner does not possess the requisite qualification and experience as Assistant Professor prescribed under 1998 Regulations and therefore, the Institute cannot be found fault with in this regard. However, it was their case that they have no objection for considering the case of the petitioner's application for the post of Assistant Professor of Medical Oncology. Recording the submission made, the Court was pleased to dispose off the petition by its order dated 6.12.1999, directing the respondent Institute to interview the petitioner for the post of Assistant Professor of Medical Oncology. In view of the directions issued by this Court, petitioner was interviewed for the post of Assistant Professor on 7.12.1999. As is the case of any other aspirant, it is his case before this Court that he had done well in the interview and was hoping that he would receive a favourable communication in the form of letter of appointment from the first respondent Institute.
9. Petitioner in W.P.No. 12003/2000 and respondent No. 2 had also filed their applications for the post of Assistant Professor of Medical Oncology pursuant to the notification issued by the first respondent Institute.
10. The first respondent Institute vide its notification dated 10.3.2000 has published the list of selected candidates in respect of various teaching posts and other posts advertised in the notification dated 5.5.1994. By the said notification, respondent No. 2 has been selected as Assistant Professor of Medical Oncology and other two persons are shown in the waiting list. Aggrieved by their non-selection, petitioners are before this Court, interalia seeking a writ of certiorari to quash the notification issued by the respondent Institute bearing No. KMIO/EST(1)/44/94 dated 10.3.2000 in so far as it pertains to selection and appointment of respondent No. 2 for the post of Assistant Professor of Medical Oncology and for other ancillary and incidental reliefs.
11. Petitioners contend that the selection of respondent No. 2 suffers from more than one legal infirmity and therefore, unsustainable. They have further stated that the age limit prescribed in the notification as on 1.5.1994 for the post of Assistant Professor of Medical Oncology is 40 years and the persons who are over aged as on 1.5.1994 are not only ineligible to apply for the post of Assistant Professor, much less application of such person could not have been considered or entertained by the first respondent institute. According to them, in view of the date of birth recorded in the seniority list and service records, respondent No. 2 as on 1.5.1994 was more than 40 years of age. Therefore, the first respondent Institute could not have entertained the application of respondent no.2 for selection to the post of Assistant Professor of Medical Oncology.
Nextly, it is contended that there is no Rule or Regulations in the Institute, which would authorise the selection Committee to relax the age limit notified or mentioned in the advertisement. Therefore, relaxing the age limit mentioned in the advertisement, the selection Committee could not have recommended the cases of respondent No. 2. Alternatively, it is contended that assuming that the selection Committee could relax the age limit mentioned in the advertisement, they could do so only in exceptional cases, that too by assigning reasons in writing for such age relaxation.
12. Sri S.G. Bhat and Sri S.V. Narasimhan, learned Counsel appearing for the petitioners, while reiterating the assertions made in the petitions, invite my attention to the observations made by the Apex Court in the case of ASHOK KUMAR SHARMA v. CHANDRASHEKHAR, : (1997)ILLJ1160SC , wherein the Apex court has observed, that where applications are called for prescribing a particular date as the cut-off date, the eligibility of the candidate is required to be judged with reference to that date and any deficiency in the eligibility qualification would disentitle a candidate for consideration of his or her case for appointment to a post. In view of this settled legal position, the learned Counsels would contend that the first respondent Institute by entertaining the application of respondent No. 2 and considering her candidature for selection to the post of Assistant Professor has acted arbitrarily and in excess of the authority vested in it and on this score alone, the selection of respondent No. 2 is liable to be quashed. The learned Counsels would also submit that the non-selection of the petitioners is not only discriminatory, but also violative of Articles 14 and 16(4) of the Constitution of India. Lastly, it is contended that the procedure followed by the selection Committee is illegal and in that, it has not properly assessed the merit of the petitioners' vis-a-vis, respondent No. 2 and other candidates. According to them, a perusal of the proceedings would demonstrate that there is no consideration of relative merit of all the applicants who had not only filed their applications for the post advertised and were also called for the interview and further it is also not known on what basis respondent No. 2 who did not possess the requisite qualification of age and educational qualification was recommended by the selection committee. Both the learned Counsels have relied upon the observations made by the learned Single Judge of this Court in the case of Dr. K.S. RAVINDRANATH v. JAYADEVA INSTITUTE OF CARDIOLOGY BANGALORE, 2000(1) KLJ 72. In the said decision, the Court was pleased to observe:
'On a conjoint reading of Rule 1 and the Schedule, it is apparent that in the case of a candidate not falling in any one of the categories referred to, a valid appointment can be made only if he/she is within the age limit prescribed. The rules do not reserve any power of relaxation for the Institute or any other Authority for that matter. Since the rules made self-contained provision as regards to the age of the candidates, it is neither necessary nor otherwise permissible to look for any other source of power to supplement the scheme underlying the same.. Respondent 2 had at all material points of time including the date of the issue of the notification inviting applications gone beyond the maximum age limit prescribed in the Schedule. It follows that the said respondent was on the date of the notification and subsequent dates ineligible for an appointment.'
13. In aid of their submissions that the judicial review is permissible even in the case where selections are made by a selection committee consisting of experts in the field, the learned Counsels rely on the observations made by Apex Court in the case K. SHEKHAR v. V. INDIRAMMA AND OTHERS, : [2002]2SCR86 and in that the Court was pleased to observe:
'It is also true that generally speaking Courts have been reluctant to interfere with the running of educational institutions. But there can be 'no islands of insubordination to the rule of law'. The actions of educational institutions, however highly reputed, are not immune from judicial scrutiny. Indeed, to preserve the high reputation, there is a greater need to avoid even the semblance of arbitrariness or extraneous colouring the institution's actions.'
14. In opposing the stand of respondent No. 2 in her statement of objections that since she has continued to hold the post of Assistant Professor from last three years, and at this belated stage, her appointment need not be taken exception to by this Court and adopt a human approach to the problem, the learned Counsels for the petitioners have relied on the observations made by the Apex Court in the case of STATE OF MADHYA PRADESH v. DHARAM BIR : [1998]3SCR511 . In that, the Court was pleased to observe:
'31. The plea that the Court should have a 'human approach' and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. IN dispensing justice to the litigating parties, the Courts not only go into the merits of the respective cases, they also try to balance the equalities so as to do complete justice between them. Thus the Courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of 'human approach', it would be at the cost of a duly selected candidate who would be deprived of employment for which he had striven and had ultimately cleared the selection. In fact, it is the 'human approach' which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification. The Court as also the Tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the Government under Article 309 of the Constitution.'
15. Now coming back to the fact situation, firstly, I should observe that the first respondent Institute has messed up the whole selection process. This is the least that I can express, I will elaborate on this a little later. The first respondent Institute in its statement of objections filed in W.P.No. 10130/2000, while answering the specific issue with regard to over-aged person being selected and appointed to the post of Assistant Professor in Medical Oncology have stated as under:
'... the advertisement have been made in accordance with the Rules and the age is taken into consideration as the second respondent is an in-service candidate with sufficient experience in the field of Medical Oncology permissible under the MCI Regulations and the petitioner is giving a distracted version without verifying the actual position of law in the matter and the first respondent is guided by the K.C.S.R. and directions given from time to time even in the matter of age.'
16. Respondent No. 2 has filed her objections in both the Writ Petitions. Reference to which I will make while discussing the primary issue canvassed by the parties to the lis. Sri Ravivarma Kumar, learned Counsel for respondent No. 2 contended that in view of Rule 11 of Recruitment Rules, the employer is statutorily permitted to relax the prescribed qualification and that would include the age prescribed in the notification/advertisement. Alternatively, the learned Counsel would contend that 'age' is also a qualification and in view of Rule 11 of the Recruitment Rules, the Selection Committee constituted for selection of the candidates for the posts advertised, in an exceptional case, can relax the prescribed age qualification and further the Selection Committee need not give any reasons in writing while relaxing the age limit of a candidate. In aid of this submission, the learned Counsel would rely on the observations made by the Apex Court in the case of THE DIRECT RECRUIT CLASS II ENGINEERING OFFICERS ASSOCIATION AND OTHERS v. STATE OF MAHARASHTRA AND OTHERS, : [1990]2SCR900 and in the case of NARENDRA CHADHA v. UNION OF INDIA, 1986(1) SLR (SC) 437.
In THE DIRECT RECRUIT CLASS II ENGINEERING OFFICERS ASSOCIATION AND OTHERS v. STATE OF MAHARASHTRA AND OTHERS the Court was pleased to state:
'Where the Rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota Rule.'
17. The Apex Court in the case of NARENDRA CHADHA v. UNION OF INDIA , while considering a particular rule, which provided some discretion to the appointing authority, the Court was pleased to observe:
'Therefore, it can be safely stated that the enormous departure from the quota Rule year to year, permits an inference that the departure was in exercise of the power of relaxing the quota Rule conferring on the controlling authority. Once when there is power to relax the mandatory rule, the appointments made in excess the quota from any given source would not be illegal or invalid, but would be valid and legal as held by this Court in N.K.Chauhan and others v. State of Gujarat (1977) 1 SCR 1037.'
The Court was further pleased to observe:
'The continuance of these petitioner's may be justified on the basis of the above quote Rule 16 on the assumption that the Government had relaxed the rules and appointed them to the posts in question to meet the administrative requirements.'
18. The learned Counsel in the alternative would contend that Rule 11 of the Recruitment Rules requires to be read with Rule 16 of the Recruitment Rules. By virtue of the said Rule, what is not provided and prescribed in conditions of Service Rules of the first respondent Institute, the provisions of Karnataka Civil Services (General Recruitment Rules) 1967, requires to be adopted and in particular, Rule 6 of the Rules, which provides for age limit for appointment. According to the learned Counsel, in view of Rule 6(3)(b) of the Rules, since second respondent is an in-service candidate, the age limit prescribed under the notification is deemed to be enhanced and therefore, in the case of respondent No. 2, the age limit prescribed should be taken as 50 years and therefore, petitioners are not justified in contending that respondent No. 2 did not satisfy the age limit prescribed under the notification.
19. The learned Counsel would nextly contend that during the pendency of this petition before this Court, the first respondent Institute has abolished the post of Assistant Professor of Medical Oncology and the petitioners and respondent No. 2 are presently working as Associate Professors and therefore, the grievance of the petitioners, as on today, does not exist and this Court is not expected to issue futile writs.
20. Lastly, the learned Counsel would contend, since respondent No. 2's appointment as Assistant Professor was in the year 2000 and since she is continuously working in that post, it would be inhuman to annul her selection and appointment made by the Selection Committee, which was validly constituted by the first respondent Institute. In aid of this submission, the learned Counsel would rely on the observations made by the Apex Court in the case of DISTRICT COLLECTOR AND CHAIRMAN, VIZIANAGARAM SOCIAL WELFARE RESIDENTIAL SCHOOL SOCIETY v. M. TRIPURA SUNDARI DEVI, : (1990)IILLJ153SC . In that, the Court has observed:
'Considering the fact that she is compelled to serve, that she has acquired the requisite qualification, that today she may be over aged for the post and the further fact that many who were under qualified were appointed to the post earlier, we feel that it will be unjust to deprive her of the post at this stage.'
21. With the available pleadings on record and the original records maintained by the Selection Committee for selecting the applicants for the posts of Assistant Professor in Medical Oncology, the following three issues arise for consideration and decision of this Court. They are:
I. Whether the procedure adopted by the Selection Committee while selecting the applicants for the post of Assistant Professor in Medical Oncology is in accordance with law and in accordance with Service Regulations of the first respondent Institute?
II. Whether the Selection Committee was justified in selecting respondent No. 2 who was admittedly had crossed the age limit prescribed for the post of Assistant Professor of Medical Oncology, in the advertisement/notification?
III. Assuming that the Selection Committee could relax the age limit prescribed in the notification, has it been done in accordance with law and the law declared by the Apex Court in this regard?
22. The first respondent Institute is 'other authority' within the meaning of Article 12 of the Constitution. It is now well settled that every action of the State and the 'other authority' should stand the test and rigour of Articles 12 and 16(1) of the Constitution of India. It is expected to act fairly and reasonably and as a model employer towards its employees in respect of employment and other conditions of service. The first respondent Institute had constituted a selection committee to select those amongst the eligible candidates on the basis of merit adjudged by adopting fairly laid down criteria and finally preparing a panel of successful candidates for the post of Assistant Professor of Medical Oncology. The process of selection consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva-voce and preparation of select list of successful candidates for appointment/s etc.
In KALYANA RAMAN'S CASE, 1992 Suppl. (2) SCC 481, the Apex Court has observed that the function of the selection committee is neither judicial nor adjudicatory. It is purely administrative. Secondly, there is any legal obligation upon the selection committee in the discharge of its functions to record reasons in support of its decision.
Perhaps the most authoritative and exhaustive statement of law by the Apex Court with regard to process of selection is to be found in LILADHAR'S CASE, : (1981)IILLJ297SC . In the said decision, the Court has observed as under:
'The object of any process of selection for entry into a public service is to secure the best and most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services.'
The Court was further pleased to observe:
'It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and Courts cannot sit in judgment over the methods of marking employed by interviewing bodies unless it is proved or obvious that the method of marking was chosen with an oblique motive.'
23. There is a presumption that a selection committee, particularly when it is a body of experts and eminent persons, acts fairly without oblique motive and is deemed to have taken into account all relevant considerations before coming to a conclusion. It is the duty of the selection committee to consider all eligible candidates who have participated in the selection process by filing the necessary application. At the same time, it is not necessary that the decision of the selection committee should be unanimous. Each member of the selection committee has a right to give his independent, unbiased and considered opinion in respect of each candidate. But one thing is certain that the selection committee is required to consider the case of all the eligible candidates, who are called for the interview at the time of selection process and if there is failure to do so, then the entire selection process would be dubbed as arbitrary, illegal and violative of fundamental right to equality. I hasten to add, that a candidate has no right of selection and appointment, but definitely has the right of consideration of his case for selection and appointment. At this stage, it may be appropriate to refer to the observations made by the Apex Court in the case of K. PRASAD v. UNION OF INDIA, : (1988)ILLJ485SC . In that, the Court has observed:
'36. So far as Orissa is concerned, the position is very simple. It clearly emerges from our discussion above that all the 82 eligible officers had to be considered for initial recruitment. Though it has been alleged in the counter-affidavit that they had been so considered, the Government note referred to be counsel dated 2.6.1967 (at p.47) of the paper book) indicate to the contrary. The S.S.B. merely selected 42 officers and made an omnibus observation that the others were found unsuitable. This, as explained in Chothia : [1978]3SCR652 is not proper compliance with the rules and so the selection has to be set aside with a direction that it should be redone properly.'
24. Keeping these fundamental principles in view, let me notice the fact situation with reference to the records produced by the learned Counsel for the first respondent Institute, in particular to the proceedings of the selection committee which met on 7.12.1999 to interview the candidates for the post of Assistant professors. The said proceedings requires to be extracted and they read as under:
'KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY. BANGALORE - 560 029.
PROCEEDINGS OF THE SELECTION COMMITTEE FOR THE POST OF ASST. PROFESSOR ON MEDICAL ONCOLOGY.
1. The Selection committee consisting of following Members met on 7.12.1999 at 11.00 a.m.
CHAIRMAN:ABSENT MEMBER:Dr. P.S. Prabhakaran
Director
KMIO, Bangalore.Dr. Tukol
Professor & Head
Dept. of Medicine
Nominee of the
Vice-Chancellor
RGUHS, Bangalore.MEMBERS:Sri D.K. Rangaswamy
Deputy Secretary to the
Govt of Karnataka
Medical Education Department
BANGALORE.Dr. Subramaniyam
Professor & Head
Department of Medical Oncology
Madras Medical College
CHENNAIDr. P.P. Bapsy
Prof. & Head
Department of Medical Oncology
KMIO, Bangalore.Shri H. Murthy
Chief Admn. Officer &
Member - Secretary
Selection Committee, KMIO
Bangalore.
Number of candidates called for interview :6Number of candidates appeared for interview :5Number of candidates considered in absentia. :1
The Member-Secretary read out the two advertised Notifications of 1994 & 1996.
The Chairman-cum-Director brought to the notice of the Selection Committee, the implications of the order passed in Writ Petition No. 762/1997 C/W. etc., with regard to teaching posts in particular.
The Member-Secretary also brought to the notice of the Selection Committee, the minimum qualification for teachers in Medical Institutions passed by the Medical Council of India by way of regulations refer Page 61 & 71 and it is also necessary to impress upon the Members that the Medical Council of India is supreme with regard to post-graduate courses in the Country as KMIO is not only Cancer Care Hospital but also teaching hospital in the field of Oncology having specialised courses imparting post-graduate education.
The Member-Secretary presented the eligible candidates for interview and also placed the individual application made by the candidates/applicants.
With the permission of the Selection Committee, the Applicants/Candidate were called upon for interview.
The Selection Committee recommends as follows:
SI. No.Interview No.NameCat.
SELECTED1.5Dr. Rani S. AcharyaGMWAITING LIST1.4Dr. K. Govind BabuGM2.2Dr. T.M. SureshSC
sd/-(P.S. PRABHAKARAN)sd/-(D.K. RANGASWAMY)sd/-(SUBRAMANIYAM)sd/-(P.P. BAPSY)sd/-(H. MURTHY)
25. Sri V.A. Mohan Rangam, learned Counsel appearing for the first respondent Institute at the time of hearing of the petition has filed a memo dated 10.9.2003 on behalf of the Institute. A reading of the memo gives an impression that they do concede that there is some irregularity in the procedure adopted by the Selection Committee while considering the case of the applicant for the post of Assistant Professor of Medical Oncology.
26. The learned Counsel for the first respondent Institute has produced before the Court the statement showing the particulars of the candidate called for the interview and the marks awarded by the members of the Selection Committee for the candidates who had participated in the selection process for the posts of Assistant Professor of Medical Oncology.
The interviews were held by the Selection Committee on 7.12.1999. The Committee constituted of six members including the Chairman of the Selection Committee. On the date of interview, one member was absent. Out of six candidates, who had applied for the post, only five had appeared for the interview including petitioners and respondent No. 2. The selection was required to be made purely on merit. Six qualities, such as personality power of expression, smartness, general knowledge, knowledge of the subject, and experience to be judged are of equal value, each carrying 10marks. However, total marks for the interview that was fixed was only 50 marks. Except Dr. Rama Murti Kamble, who had also applied for the post, all the others had participated in the interview held on 7.12.1999. One of the member of the Selection Committee does not award any marks in the case of Dr. D.Lokanath and Dr. K.C. Lakshmaiah, petitioner in W.P. No. 10130/2000. That gives a clear indication that though these candidates had appeared in the interview, their case was not considered by one of the members of the Selection Committee.
In the statement showing the particulars of the candidate, there is a column, which provides for 'experience possessed' by the candidate. In the case of all the other candidates with the information made available along with their application by the candidates is extracted to facilitate the members to award marks under the heading 'experience'. When it comes to the case of the petitioner in W.P.No. 12003/2000, it is left blank on the ground that the name of the petitioner is included for consideration of his case for the post of Assistant Professor of Medical Oncology in view of the directions issued by this Court on 6.12.1999. They further say that since the candidate has not applied for the post of Assistant Professor, particulars are not known. The remarks made by the person, who has prepared the statement showing the particulars of the candidates called for the interview reads:
'Name included as per the directions of the High Court of Karnataka, Bangalore on 6.12.1999 (since the candidate has not applied for the post of Assistant Professor particulars are not known.'
27. The above note extracted by me clearly shows that when the Selection Committee considered the case of the petitioner (W.P. 12003/2000), his application was not even available before them. This may be one of the reasons for one member not to award any marks to him. But the other members award marks for his experience without even knowing his qualifications and his credentials. Two things can be deduced from these documents. Firstly, when there was a clear direction by this Court while disposing of the petition filed by him, directing the respondents to consider the application filed by the petitioner for the post of Professor in the Institute on an application filed for the post of Assistant Professor, the Selection Committee failed to consider the case of the petitioner in the selection process for the post of Assistant Professor. Secondly, in the absence of petitioner's application, the members of the Selection Committee at their whims and fancies could not have awarded any marks for his experience. Thirdly, when the total number of marks for interview was only 50, it could not have earmarked 10 marks each for the six qualities to be judged of a candidate. These bare facts from the records of the Selection Committee produced by the first respondent Institute would demonstrate that the entire selection process is an eyewash and the whole selection is faulty. The Selection Committee instead of identifying the deserving person on the basis of merit and performance have identified only their favourite person to confer on her the post of Assistant Professor of Medical Oncology ignoring the claim of other candidates. An expert body has done this basic mistake which is not only disheartening and at the same time demonstrates the sorry state of affairs of the Institute. If this trend continues, it may not augur well for the reputation of the Institute. This ground alone is sufficient to set aside the entire selection process, since the case of an eligible and qualified candidate has not been considered by the Selection Committee in the selection process held for the post of Assistant Professor of Medical Oncology. Denial of fair consideration of the case of the petitioner at the time of selection is not only arbitrary but also in violation of fundamental right to equality. The Apex Court in National Institute's case has pointed out that the necessity for giving reasons is different from and in principle distinct from procedural fairness. In the said decision, the Court has reiterated that the procedural fairness is the main requirement and a Selection Committee is not an exception to this principle and it must take a decision reasonably without being guided by extraneous or irrelevant consideration. Such decision should also confirm to the concept of 'fairness in action'. In the present case, the same is lacking. Therefore, the entire selection process requires to be set aside by this Court.
28. Since the learned Counsels have argued on the other issues, let me briefly consider them also.
The Rules do not provide a cut-off date by which the applicant has to satisfy the prescribed eligibility criteria pertaining to 'age'. In the absence of a statutory provision in that regard, the age limit has to be fixed at the time of issuing advertisement. This is not merely to enable the appointing authority to sort out the applications of eligible candidates from those candidates who did not fulfill the prescribed qualification but also to avoid criticism of favouritism and nepotism against the appointing authority.
In the present case, in the notification dated 5.5.1994, it had been notified that the last date for receipt of the application form as 19.6.1994 and further in so far as age limit, it was mentioned that the candidate must have attained the age of 40 years as on 1.5.1994 and therefore, it is clear that the cut-off date for age limit is 1.5.1994 and any candidate for the post of Professor or Assistant Professor not satisfying the age limit on the cut-off date was ineligible to apply for the post. Admittedly, as on the cut-off date prescribed in the notification, respondent No. 2 has crossed the age limit and therefore, firstly, she was ineligible to make any application for the post advertised. However, learned Counsel Sri Ravivarma Kumar would contend that in view of Rule 11 of the Recruitment Rules, the Governing Council, at its discretion, may relax the prescribed qualification and experience in special circumstance. Assuming firstly that under this Rule, Governing Council has the discretion to relax the age limit prescribed in the notification, the first respondent Institute has not produced any material before this Court even to impliedly suggest that such a decision was taken by the Governing Council of the Institute. The learned Counsel for the first respondent Institute very fairly on instructions would submit that there is no record/document that he can produce before the Court even to suggest that the Governing Council had taken any decision to relax the age limit prescribed in the notification in the case of respondent No. 2. In the absence of any material produced before this Court, it can safely be said that the Governing Council had not taken any decision to relax the age limit prescribed in the notification in the case of respondent No. 2. Therefore, the learned Counsel for respondent 2 cannot rely on Rule 11 of the Recruitment Rules to contend that the Institute has relaxed the prescribed qualification while considering the candidature of respondent No. 2 for the advertised post. Secondly, the Selection Committee at its discretion cannot relax the prescribed qualification and experience in special circumstances, for the simple reason, the power to relax the prescribed qualification is entrusted in the highest authority of the Institute under the Rules and this power can be exercised only by that specified authority and again in exercising of that power it is necessary for that authority to pass an express order, since the concept of deeming relaxation is not permissible as observed by the Apex Court in the case of SYED KHALID v. UNION OF INDIA, 1993 Suppl. (3) SCC 575. These observations would answer the contention of learned Counsel Sri Ravivarrna Kumar that the 'age' is also a qualification and therefore under Rule 11 of the Recruitment Rules, it could be relaxed and no reasons need by even for relaxing the qualification of 'age' prescribed in the notification and when the Selection Committee has considered the application of respondent No. 2 that there is deemed relaxation of age and lastly, in view of sub-rule (3)(b) of Rule 6 of the Karnataka Civil Services (General Recruitment Rules) 1967, that the age limit prescribed in the notification is deemed to be enhanced.
29. The learned Senior Counsel Sri Shanta Raju, who appears for respondent No. 2 in the other Writ Petition would submit that since the petitioners and respondent No. 2 during the pendency of these Writ Petitions have been designated as Associate Professors in the Department of Medical Oncology, at this stage, this Court need not express any opinion on the legality or otherwise of the selection process that was made by the Selection Committee while selecting respondent No. 2 as Assistant Professor in the Department of Medical Oncology. In the normal course, the submission of the learned Senior Counsel could have been accepted by this Court, for the sole reason, this Court would not issue futile writs. But in the present case, such a course cannot be resorted to by this Court, for the reason, if for any reason, the selection and appointment of respondent No. 2 is accepted by this Court, she would have march over others in the seniority list of Lecturers, who are now promoted/ re-designated as Associate Professors in the Department of Medical Oncology, since her appointment as assistant Professor in the Department was earlier to that of the petitioners herein.
Even otherwise also, these subsequent events cannot be taken into consideration while deciding the lis between the parties, since the petitioners were before this Court immediately after selection and appointment of respondent No. 2 to the advertised post and this Court while deciding the dispute between the parties, is expected to take note of the fact situation as it existed at the time of filing of the petitions.
The learned Counsels for the private respondent also made an attempt to persuade this Court not to pass any orders on the merits of the case in view of the fact that the post of Assistant Professors in the Department of Medical Oncology is abolished during the pendency of these Writ Petitions before this Court. These subsequent events should not deter the Court in passing an order on the merits of the case, since this Court believes that an illegal and irregular appointment made earlier cannot be continued to exist even if the post that was available earlier has been abolished during the pendency of these Writ Petitions. Therefore, this plea of the learned Counsel appearing for the second respondent cannot be accepted and accordingly, it is rejected.
30. In view of the above discussions, the plea of the petitioners requires to be accepted and the relief requested in their respective petition in so far as setting aside the selection and appointment of respondent No. 2 requires to be granted. Accordingly, the following:
ORDER
I. Writ Petitions are allowed. Rule made absolute.
II. The order passed by the first respondent Institute dated 10.3,2000 selecting and appointing respondent No. 2 as Assistant Professor of Medical Oncology is set aside, as it is erroneous and suffers from vice and arbitrariness and erroneous consideration.
III. The matter need not be remanded back to the first respondent Institute, for the reasons, the post of Assistant Professor in the Department of Medical Oncology had been abolished during the pendency of these petitions before this Court.
IV. No order as to costs. Ordered accordingly.