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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
P. Vishwanatha Shetty, J.
Siddalinga Devaru and another —Appellant
Vs.
Selection Committee, Kidwai Memorial Institute of Oncology —Respondent
WP Nos. 35541 and 35542/1996 C/w Writ Petition No. 35589 of 1996
Decided on : 02-06-1997
Recruitment Rule prescribing maximum age limit of 50 years for appointment as Director of Kidwai Memorial Institute of Oncology, Bangalore, and procedure adopted by authorities in selecting candidates for post, challenged. Karnataka Societies Registration Act, Bye-law 12(a) of Kidwai Memorial Institute of Oncology General Bye-laws, 1980, Articles 14 and 16 of Constitution of India.
Fact of the Case:
Petitioners challenged validity of Recruitment Rule prescribing maximum age limit of 50 years for appointment as Director of Kidwai Memorial Institute of Oncology, Bangalore, and procedure adopted by authorities in selecting candidates for post. Petitioners were beyond 50 years of age on date of receipt of applications by authorities and Selection Committee did not consider their cases for appointment as Director. Petitioners contended that Recruitment Rule was arbitrary, unreasonable, discriminatory and violative of their rights under Articles 14 and 16 of Constitution of India. They also contended that Selection Committee was not constituted by Governing Council as required under Bye-law 12(a) of Kidwai Memorial Institute of Oncology General Bye-laws, 1980, and that entire selection process was vitiated on account of malafides on part of authorities incharge of selection process.
Finding of the Court:
Court held that Recruitment Rule prescribing maximum age limit of 50 years for appointment as Director of Kidwai Memorial Institute of Oncology, Bangalore, was unconstitutional, void and unenforceable in law. Court also held that entire selection process initiated with commencement of advertisement issued in 'Indian Express' dated 20.10.1996 for purpose of selection to post of Director of Kidwai Memorial Institute, was declared as illegal. Court directed State and Kidwai Memorial Institute of Oncology to take immediate fresh steps in matter of selection and appointment to post of Director of Kidwai Memorial Institute without reference to maximum age qualification prescribed in Recruitment Rules and complete process of appointment as expeditiously as possible, but not latter than four months from date of order, in accordance with law and in light of observations made by Court.
Issues: 1. Whether Recruitment Rule prescribing maximum age limit of 50 years for appointment as Director of Kidwai Memorial Institute of Oncology, Bangalore, was arbitrary, unreasonable, discriminatory and violative of petitioners' rights under Articles 14 and 16 of Constitution of India? 2. Whether Selection Committee was constituted by Governing Council as required under Bye-law 12(a) of Kidwai Memorial Institute of Oncology General Bye-laws, 1980? 3. Whether entire selection process was vitiated on account of malafides on part of authorities incharge of selection process?
Ratio Decidendi: 1. Court held that Recruitment Rule prescribing maximum age limit of 50 years for appointment as Director of Kidwai Memorial Institute of Oncology, Bangalore, was unconstitutional, void and unenforceable in law, as it was arbitrary, unreasonable and violative of rights guaranteed to petitioners under Articles 14 and 16 of Constitution of India. Court observed that age limit of 50 years was highly unreasonable, arbitrary and violative of rights guaranteed to petitioners under Articles 14 and 16 of Constitution of India, as experience, knowledge, professional skill and administrative capabilities increases as one puts in more number of years of service and along with that when he or she grows in age. Court further observed that object of selection to post of Director of premier institution, like Institute, which treated deadly disease like cancer, was to make best choice or to select most merited and suitable candidate among candidates available and that qualification regarding age prescribed had no nexus or rationale with object sought to be achieved. 2. Court held that Selection Committee was not constituted by Governing Council as required under Bye-law 12(a) of Kidwai Memorial Institute of Oncology General Bye-laws, 1980. Court observed that Bye-law 12(1)(a) of Bye-laws provided for constitution of Selection Committee which consisted of several persons or authorities referred to in said bye-law and that Clause (a)(v) of Bye-law 12(1) provided for constitution of Selection Committee with four outside experts nominated by Governing Council. Court further observed that admittedly, experts to Selection Committee had been nominated by Government as against mandate of Clause (v) of Bye-law 12(1)(a) of Bye-laws and that when power was conferred on Governing Council to nominate four outside experts to Selection Committee, said power must be exercised by very authority and it was not permissible for any other authority how high so ever it may be to nominate four outside experts to Selection Committee. 3. Court held that entire selection process was not vitiated on account of malafides on part of authorities incharge of selection process. Court observed that allegations of malafides made in petitions were vague and ambiguous and that there was absolutely no foundation laid in petition with regard to submission that Chief Minister had pre-determined with regard to candidature of Dr. Prabhakar as being appointed as Director of Institute.
Final Decision: Recruitment Rule prescribing maximum age limit of 50 years for appointment as Director of Kidwai Memorial Institute of Oncology, Bangalore, was declared unconstitutional, void and unenforceable in law. Entire selection process initiated with commencement of advertisement issued in 'Indian Express' dated 20.10.1996 for purpose of selection to post of Director of Kidwai Memorial Institute, was declared as illegal. State and Kidwai Memorial Institute of Oncology were directed to take immediate fresh steps in matter of selection and appointment to post of Director of Kidwai Memorial Institute without reference to maximum age qualification prescribed in Recruitment Rules and complete process of appointment as expeditiously as possible, but not latter than four months from date of order, in accordance with law and in light of observations made by Court.
P. Vishwanatha Shetty, J.—The controversy raised in these petitions relates to the validity of the Recruitment Rules providing fixation of maximum age limit for being appointed as Director of one of the premier medical care institutions in the State i.e., Kidwai Memorial Institute of Oncology, Bangalore, and the procedure adopted by the concerned authorities in proceeding to select the candidates to the said post.
2. Since the facts pleaded in these petitions are fairly similar and the contentions urged are identical, these petitions were heard together at the stage of preliminary hearing itself in view of the urgency pleaded and disposed of by this common order.
3. Before considering the submissions made by the Learned Counsel appearing for the parties, it is useful to set out in brief the facts which are relevant for disposal of these petitions.
Kidwai Memorial Institute of Oncology, Bangalore (hereinafter referred to as 'the Institute') is an autonomous body registered under the provisions of the Karnataka Societies Registration Act (hereinafter referred to as 'the Act') and is wholly financed by the State of Karnataka. It is also not in dispute that it is an instrument of the State within the meaning of Article 12 of the Constitution of India. The Institute has been established and being developed for the purpose of giving specialised treatment to the patients who suffer from deadly disease of cancer. The Institute generally caters to the need of large section of cancer patients and more particularly poor patients hailing from the State and outside.
Consequent upon the retirement of the former Director of the Institute on 30.8.1996, steps were taken to fill up the post of Director by advertising the vacancy in daily newspaper published in 'Indian Express' on 20.10.1996. In the said advertisement, the gist of the Cadre and Recruitment Rules regarding the qualification etc; has been set out. One of the qualifications prescribed in the notification provides that the maximum age limit of the candidate as on the last date fixed for the receipt of the applications should not be more than 50 years, but the same may be relaxable in special circumstances. The relevant portion of the said qualification prescribed in the advertisement issued in the paper reads as follows:
"Age Limit:
Maximum 50 years as on the last date fixed for the receipt of application, but relaxable in special circumstances."
Among others, the petitioners in these petitions and the supplemental respondents in these petitions submitted their applications. It is undisputed that all the petitioners in these petitions were beyond 50 years of age on the date of the receipt of the applications by the authorities and the supplemental respondents i.e., Dr. P.S. Prabhakaran, respondent-3; and Dr. Vallikad Elizebeth, respondent-4, and one Dr. M.H. Sharief, whose cases were considered by the Selection Committee, were within 50 years of age. It is the grievance of the petitioners in these petitions that though the Recruitment Rules and also the notification issued calling for applications for being considered to the post of Director of the Institute provide for relaxation of age limit fixed, their claim was not considered by the Selection Committee, and on the other hand the State Government took a decision not to consider the case of such of those applicants who were beyond the age of 50 years on the date of receipt of the applications and therefore the Selection Committee did not have an occasion to consider the cases of the petitioners as to whether having regard to their proficiency, experience in the profession, qualification held by them and other relevant circumstances, the requirement of age qualification prescribed should be relaxed in terms of the Recruitment Rules by the Selection Committee, or not. It is their further case that though the Selection Committee was required to be constituted under Bye-law No. 12(a) of the Kidwai Memorial Institute of Oncology Gene
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