MADRAS INSTITUTE OF DEVELOPMENT STUDIES AND ANOTHERversusDR. K. SIVASUBRAMANIYAN AND OTHERS

                        [2015] 14 S.C.R. 276


A           MADRAS INSTITUTE OF DEVELOPMENT
                     STUDIES AND ANOTHER
                                  v.
           DR. K. SIVASUBRAMANIYANAND OTHERS
B
                  (Civil Appeal No. 6465 of 2015)
                         AUGUST 20, 2015
             [M. Y. EQBALANDARUN MISHRA, JJ.]
        Service Law- Selection Process I Procedure- For the
c positions of Professor, Associate Professor and Assistant
  Professor - Appel/ant-Institute issued advertisement -
  Several persons including respondent No. 1 submitted
  applications - Selection Committee conducted interviews
0 and recommended a panel of five names. Thereafter,
  Executive Council by Order dated 14.8.2006 approved the
  appointment of various persons - 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
E Professor - Respondent No. 1 challenged the decision dated
  14.8.2006 inter alia on grounds that the selection was not
  done strictly as per the qualifications mentioned in the
  advertisement; and that there was infraction of the recruitment
  rules - Single Judge of the High Court dismissed the writ
F petition inter alia on grounds that there was no discrepancy
  with regard to the qualification mentioned in the
  advertisement and the service rules; and that respondent
  No. 1 having taken part in the selection process without
  raising any objection cannot challenge the selection process
G after being declared unsuccessful- Division Bench of High
  Court reversed the order passed by the Single Judge-Held:
  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 on record - Decision of the
H
                                276
   MADRAS INSTITUTE OF DEVELOPMENT STUDIES                           277
           v. DR. K. SIVASUBRAMANIYAN
Academic Authorities about the suitability of a candidate to         A
be appointed as Associate Professor in a research institute
cannot normally be examined by the High Court under its
writ jurisdiction - Having regard to tlie fact that the candidates
so selected possessed all requisite qualifications and
experience and, therefore, their appointment cannot be               B
questioned on the ground of lack of qualification and
experience - Division Bench of High Court ougflt not to have
interfered with the decision of the appellant-Institute in
appointing respondent nos. 2 to 4 on the post of Associate
Professor - Be that as it may; respondent no. 1, without raising     c
any objection to the alleged variations in the contents of the
advertisement and the Rules, submitted his application and
participated inthe 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               D
selection process - 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 - Taking into consideration the entire facts of the
case and the Jaw laid down by Supreme Court in a catena of           E
decisions, it is clear that the Division Bench committed grave
error in law by reversing the order passed by the Single Judge
- Madras Institute of Development Studies (MIDS) Faculty
Recruitment Rules, 2001.
      Dr. G Sarana v. University of Lucknow & Or.s.                  F
      (1976) 3 sec 585: 1977 (1) SCR 64; Madan
      Lal & Ors. v. State of J&K & Ors. (1995) 3 SCC
      486: 1995 (1) SCR 908; Manish Kumar Shahi
      v, State of Bihar (2010) 12 SCC 576; Ramesh
      Chandra Shah and others v. Anil Joshi and others               G
     (2013) 11 sec 309 : 2013 (5) scR 687 -
     referred to.


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278         SUPREME COURT REPORTS                [2015] 14 S.C.R.


A                       Case Law Reference
           1977 (1) SCR 64       referred to           Para 21
           1995 (1) SCR 908      referred to           Para 22
           (201 o) 12 sec 576    referred to           Para 23
B
           2013 (5) SCR 687      referred to           Para 24
           CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      6465 of 2015.
           From the Judgment and Order dated 09.01.2012 of the
C     High Court of Judicature at Madras in W.A. No. 167 of 2008.
                                 WITH
           C.A. No. 6466 of 2015.
       Ms. V. Mahana, Sr. Adv., N.L. Rajah, Santanam
D Swaminadhan, Ms. lnsha Mir, Sidharth Rajah, Anil Kumar
  Tandale, Gautam Narayan, R.A. lyer,Amitesh Kumar, Shashank
  Shekhar Singh,' Navin Prakash, Vijay Kumar, Anil Kumar
  Tandale, Anil KumarTandale, Satish Vig, B. Ragunath, Vijay
  Kumar, Advs. for the appearing parties.
 E
           The Judgment of the Court was delivered by
           M. Y. EQBAL, J. 1. Leave granted.
         2. These appeals by special leave are directed against
F the Judgment and order dated 09.01.2012 passed by the High
  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
G Appellant No.-lnstitute approving appointment of Respondent
  Nos. 2 to 6 (namely Dr. S. Anandhi, Dr. Brinda Viswanathan,
  Dr. L. Venkatachalam, Dr.Ajit Menon and Dr. KripaAnanthpur)
  to the post of Associate Professor has been quashed.
           3. The facts of the case lie in a narrow compass.·
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   MADRAS INSTITUTE OF DEVELOPMENT STUDIES                            279
    v. DR. K. SIVASUBRAMANIYAN [M. Y. EQBAL, J.]

       4. The appellant Institute issued an advertisement calling A
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 B
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 consultation
with senior Professors for evolving the criteria for short-listing
of the candidates. The Selection Committee consisting of three        c
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 D
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           E
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            F
petitioner that there has been infraction of the recruitment rules.
      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      G
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
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    280         SUPREME COURT REPORTS                   [2015] 14S.C.R.


    A     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
    B     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
    C     preferred the writ appeal before the Division Bench of the
          Madras High 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
    D     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
     E    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
     F    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
     G selected candidates.
                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
     H



•
     MADRAS INSTITUTE OF DEVELOPMENT STUDIES                         281
      v. DR. K. SIVASUBRAMANIYAN [M. Y. EQBAL, J.]

  appellant-Institute was not created by any statute. It was         A
  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      B
. 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 C
 quash the decision by which aforesaid respondents have been
 selected.
       13. Lastly, learned counsel submitted that the respondent
 writ petitioner participated in the selection process without D
 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. Mahana, learned senior         E
 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         F
 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 G
 Studies (MIDS) is governed by its Faculty Recruitment Rules,
 2001. The Rules apply to the selection and appointment of
 persons to the post of Assistant Professor (Research
 Associates), Associate Professor (Fellow) and Professor we
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282         SUPREME COURT REPORTS                 [2015] 14S.C.R.


A     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)
B          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:-
c          "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
D          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
 E doctoral degree with 5 years experience in research/teaching
   at University or National level research Institute.
         18. The contention of the respondent no.1 that the short-
   listing of the candidates was done by few professors
 F 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
 G 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 theAcademicAuthorities about
   the suitability of a candidate to be appointed as Associate
 H
   MADRAS INSTITUTE OF DEVELOPMENT STUDIES                         283
    v. DR. K. SIVASUBRAMANIYAN [M. Y. EQBAL, J.]

Professor in a research institute cannot normally be examined      A
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 ground of lack of qualification
and experience. The High Court ought not to have interfered        B
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 C
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 D
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         E
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 before a three Judges Bench of this Court where
the fact was that the petitioner had applied to the post of F .
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 G
in the constitution of the Committee. Rejecting the contention,
the Court held:-                   ·              ·
     "15. We do not, however, consider it necessary in the
     present c;:ise to go into the question ·of the
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284         SUPREME COURT REPORTS                    (2015] 14 S.C.R.


A          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
B          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
c          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:
D           "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."
E
           22. Jn Madan Lal & Ors. vs. State of J&K & Ors. (1.995)
      3 SCC 486, similar view has been reiterated by the Bench
      which held that:-
           "9. Before dealing with this contention, we must keep in
 F         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
 G         dispute between the parties. The petitioners also
           appeared at the oral int~rview 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
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   MADRAS INSTITUTE OF DEVELOPMENT STUDIES                            285
    v. DR. K. SIVASUBRAMANIYAN [M. Y. EQBAL, J.]

     themselves selected at the said oral interview. Only A
     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 B
     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. Akhi/esh Kumar Shukla1 it has c
     been clearly laid down by a Bench of three learned
     Judges of this Court that when the petitioner appeared
     at the examination withput protest and when he found
     that he would not succeed in examination he filed a
     petition challenging the said examination, the High Court D
     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:-
                                                                      E
     ''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 ofselection. Surely, if the petitioner's name         F
     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               G
     disentitles hini from questioning the selection and the
     High Court did not commit any error by. refusing to
     entertain the writ petition."

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 286         SUPREME COURT REPORTS                    (2015] 14S.C.R.


 A          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.-
            "ln view of the propositions laid down in the above noted
 B          judgments, it must be held that 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
. c         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."
 D           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.
  E         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
  F    Judge.
          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
  G 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.


  H    Bibhuti Bhushan Bose                                Appeals allowed.