Karnataka High Court
Nandini D/O Veerayya Math vs The University Agricultural Sciences ... on 4 September, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
-1-
NC: 2024:KHC-K:6661-DB
WA No.200073 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
WRIT APPEAL NO.200073 OF 2023 (S-RES)
BETWEEN:
NANDINI
D/O VEERAYYA MATH,
AGE: 30 YEARS, OCC: NIL,
R/O: H.NO.7-6-282, VASAVI NAGAR,
RAICHUR - 585 104.
...APPELLANT
(BY SRI SRIRANGA SUBBANNA, SENIOR ADVOCATE FOR
Digitally signed SRI RAVINDRA REDDY, ADVOCATE)
by SWETA
KULKARNI
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE UNIVERSITY AGRICULTURAL SCIENCES
RAICHUR,
THROUGH ITS REGISTRAR,
LINGASUGUR ROAD,
RAICHUR - 584 104.
2. SHETA S. METI
AGE: 26 YEARS,
R/O: H.NO.1-11-152/17-18,
SANJEEVINI NAGAR,
-2-
NC: 2024:KHC-K:6661-DB
WA No.200073 of 2023
RAMPUR ROAD,
R/O: RAICHUR - 584 104.
3. CHANNAPPA GURIKAR
AGE: MAJOR,
R/O: H.NO.6-2-71/16,
NEAR MANIKPRABHU TEMPLE,
MANIKPRABHU LAYOUT,
RAICHUR - 584 104.
...RESPONDENTS
(BY SRI AMARESH S. ROJA, ADVOCATE FOR R1;
SRI A.M.NAGARAL, ADVOCATE FOR R2
RESPONDENT NO.3 SERVED)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, PRAYING THIS
HON'BLE COURT AFTER CALLING FOR RECORDS IN
W.P.NO.207640/2017 MAY BE PLEASED TO ALLOW ABOVE
APPEAL AND FURTHER SET ASIDE THE ORDER OF THE
LEARNED SINGLE JUDGE DATED 28.11.2022 PASSED IN
W.P.NO.207640/2017 AND TO ISSUE ORDER OR
DIRECTION DEEMED FIT TO THIS HON'BLE COURT IN THE
INTEREST OF JUSTICE AND EQUITY WITH COST.
THIS WRIT APPEAL, COMING ON FOR ADMISSION,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
-3-
NC: 2024:KHC-K:6661-DB
WA No.200073 of 2023
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV) The present writ appeal is filed by the petitioner in the writ petition calling in question the correctness of the order dated 28.11.2022 passed in W.P.No.207640/2017, whereby the learned Single Judge has dismissed the writ petition filed by Ms.Nandini challenging the appointment of a selected candidate Ms. Swetha S Meti.
2. The writ petition was filed by Ms.Nandini claiming that the recruitment by the University of Agricultural Sciences, Raichur was initiated for filling up of posts, in particular, the post of Assistant Professor in Agricultural Microbiology-(7) under the Hyderabad- Karnataka Region Local Cadre Post. It is submitted that the conditions prescribed included condition of having obtained pass in National Eligibility Test (for short 'NET') -4- NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 with 50 Marks. It is further submitted that the selected candidate respondent No.2 Ms. Swetha S Meti had secured only 42% in NET and if that were to so, she was ineligible to have been considered for selection under the 'General Merit' category. It was contended that any candidate who obtains benefit of relaxation by virtue of hailing from 'Reserved' category cannot migrate to 'General Merit' category, but, must be confined to selection under the 'Reserved' category. A further contention was also raised as regards selection procedure including the procedure adopted in short-listing and interview.
3. The writ petition came to be dismissed relying on the judgment of Co-ordinate Bench in the case of Neha Kulkarni vs. University of Agricultural Sciences and others in W.P.No.201486/2018 disposed off on 09.07.2019. The learned Single Judge had observed that the reliance placed on the notification of 21.03.2017 as regards combined examination conducted for Agricultural Research Service (ARS) and NET for the year 2017 -5- NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 imposing restriction on the migration to 'General Merit' category is a prescription as regards obtaining certification of NET and could not be read into the recruitment notification of 09.01.2016.
4. The learned Single Judge had also noticed that the petitioner had obtained 23.93 marks which was lesser than the minimum number of 30 marks and accordingly not being eligible, the petitioner was rightly kept out of the selection process. The said order of learned Single Judge is challenged in this appeal.
5. Sri. Sriranga Subbanna, learned Senior Counsel appearing on behalf of petitioner has contended that admittedly, the selected candidate had cleared her NET only by virtue of grace marks on the basis of her belonging to 'Reserved' category. Accordingly, though respondent No.2 herein had got 42% in NET, she was declared pass by virtue of the benefit by way of relaxation in pass mark extended to candidates of Scheduled Tribe. It is submitted that if that were to be so, the notification of NET issued by -6- NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 Agricultural Research Service (Preliminary) Examinations- 2015 in combination with National Eligibility Test (NET) - 2015 dated 09.10.2015 which is identical to the notification of 21.03.2017 referred to by the learned Single Judge, provides for a condition that any candidate who had obtained relaxation and accordingly had cleared the NET examination in terms of Clause 2(xiv) would be eligible to be selected only against the reserved vacancies of the particular category and could not be considered for appointment against unreserved vacancy. Accordingly, it is submitted that in light of the admitted marks of the selected candidate in NET, respondent No.2 having cleared NET only on the basis of benefit of relaxation of standard, she could not have migrated to 'General Merit' category and is to be selected only in the 'Reserved' quota.
6. Sri. Amresh S. Roja, learned counsel appearing for the respondent No.1-University and Sri. A.M. Nagral, learned counsel appearing for respondent No.2 have however contended that the notification at Annexure-A -7- NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 dated 09.01.2016, in terms of Clause-19 provides for migration of a reserved candidate into the 'General Merit' quota by virtue of the Government Notification at Annexure-'A' dated 20.06.1995 and if that were to so, the question of limiting the candidate who had applied under the 'Reserved' category from migration to 'General Merit' category would not arise. It is further submitted that in terms of the Notification at Annexure-'A' dated 09.01.2016 for the post of 'Assistant Professor Cadre', the prescribed qualification was provided at Clause III(i) and beside fulfilling the qualification prescribed, the stipulation that the candidate must have cleared NET was an additional condition and in light of Clause-19 which provides for migration from 'Reserved' category to 'General Merit' category, the restriction as contended by the petitioner of confining the claim of petitioner for selection only to 'Reserved' category is not to be accepted.
7. Learned Senior Counsel appearing on behalf the petitioner has relied on the judgment of Apex Court in the -8- NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 case of Govt. of NCT Delhi and Others vs. Pradeep Kumar and others1 (Pradeep Kumar) and contended that the Apex Court has clearly held that a person who had obtained qualification by virtue of relaxation of pass marks under CTET could not be considered for appointment to a post under 'General Merit' category.
8. As regards such contention, learned counsel for the respondents would contend that the facts of that case are different and the law cannot be applied in the present factual matrix in light of the stipulation under the notification at Annexure-A dated 09.01.2016.
9. Insofar as the other contention relating to locus standi raised by the respondents stating that the petitioner had obtained 23.93 marks out of 100 marks and was declared as not eligible and once she had not challenged her declaration as being not eligible, the petitioner could not have sought to assail the selection of respondent 1 AIROnline 2019 SC 2024 -9- NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 No.2; the same was sought to be opposed by placing reliance on the judgment in the case of K. Shekar vs. V. Indiramma and others2 ('K. Shekar).
10. It is contended by the learned Senior Counsel that when lack of merit of the selected candidate was such that it would go the root of recruitment process, the Court would intervene to eliminate such candidate from the selection process and accordingly, irrespective of the eligibility of petitioner, the matter has to be considered.
11. Heard both sides.
12. It must be noticed that the notification at Annexure-'A' dated 09.01.2016 provides for the criteria to be taken note of for the purpose of selection. Insofar as the post of 'Assistant Professor Cadre', the qualification is provided at Clause-III(i) to (vi). Apart from providing the requirement of 55% marks or its equivalent at the Master's Degree level various other qualifications are also 2 AIR 2002 SC 1230
- 10 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 prescribed. It is provided that apart from having minimum qualifying marks, the candidate must have cleared NET. The notification further provides at Clause-10 for relaxation of marks and Clause-11 provides for minimum marks and Clause-19 provides for roster which was to be in accordance with the orders of Government of Karnataka.
13. The learned Single Judge has observed that the notification dated 09.10.2015 relied upon by the petitioner relating to Agricultural Research Service (Preliminary) Examination in combination with NET-2015 cannot be read into the notification at Annexure-'A' dated 09.01.2016. It must be noticed that, if the notification dated 09.10.2015 pertaining to relaxation of marks in NET were to be accepted as imposing restriction as regards eligibility to migrate to 'General Merit' category, then the same appears to be inconsistent with Clause-19 of Annexure-'A' dated 09.01.2016. Clause-19 is extracted hereinbelow:-
- 11 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 "19. The roster prescribed for the posts notified herewith is in accordance with the following Karnataka State Government Orders (a) No. SiAaSul:21:SaHiMa:90, Bangalore, dated 16.11.1995 (b) No.SiAaSul:08:SaHiMa:95, Bangalore, dated 20.6.1995 (c) No.SiAaSul:
42:SeNeNi:2001, Bangalore, dated 23.07.2001 (d) No.SiAaSul:97:SeNeNi: 2002, Bangalore, dated 22.11.2002 (e) No.DPAR 50 SRR 2000, dated 3.9.2005 (f) SiAaSul: 107:SeNeNi:2005, dated 5.9.2005 and as amended from time to time.
Further, reservation for persons belonging to Hyderabad-Karnataka Region is provided as per GOK notification dated 29.1.2014."
14. The qualification for the post of 'Assistant Professor Cadre' as per the recruitment notification is as follows:-
"III. ASSISTANT PROFESSOR CADRE:-
i. Good academic record with at least 55% marks or its equivalent at the Master's Degree level in a relevant subject from a recognized University.
ii. NET is compulsory along with one publication in NAAS (National Academy of Agricultural Sciences, New Delhi) rated refereed journal for recruitment to the post of Assistant Professor and equivalent
- 12 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 in the disciplines in which NET is conducted. Essentiality or NET can be waived-off for the candidates holding Ph.D. degree provided it has been done with course work as prescribed by the UGC Regulations 2009, and the candidate has at least two full length papers in journals having a NAAS rating not less than 4 or a minimum of 4 full length papers in NAAS rated SAU journals, as on the last date of submission of application. Those candidates with Ph.D. degree without course work will not qualify of NET exemption.
iii. For the post of Assistant Professor in the discipline of Physical Education/Library Science/Physics/Bio-Chemistry/Computer Science/Statistics/Mathematics are exempted from getting Ph.D. with course work.
iv. Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR, ICAR or similar test accredited by the UGC like SLET/SET.
v. NET/SLET/SET shall not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted.
vi. Candidate should not be above 50 years of age."
- 13 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023
15. It is to be noticed that the qualification for the post of 'Assistant Professor Cadre' is good academic record with atleast 55% marks or its equivalent at the Master's Degree level. The clearing of NET is also stipulated as a mandatory requirement and accordingly, while NET does not constitute the 'qualification marks', it could be stated that passing in NET though independent of the qualifying marks is a requisite.
16. Reference is made to the notification by the Agricultural Scientists Recruitment Board, which notification is titled as "Agricultural Research Service (Preliminary) Examination-2015 in combination with National Eligibility Test (NET)-2015" and in specific to Clause-13(xiii), which provides that a candidate qualifying after getting relaxation is to be considered only against 'Reserved' vacancies of the particular category.
17. Under the caption of 'Instructions' at point Nos.10 and 11 of the recruitment notification, there are
- 14 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 stipulations regarding relaxation of marks, which reads as follows:-
"10. Relaxation of 5% marks at Master's level & 5% of marks at Graduate level is provided to the SC/ST category, Physically & Visually handicapped persons for appointment to various posts of Teachers in UAS, Raichur.
11. Minimum marks prescribed for placing in the selection panel for Professor is 50, Associate Professor is 40 and Assistant Professor cadre is 30 marks with relaxation of 5 marks for SC & ST."
18. Accordingly, it is clear that there is relaxation of 5% marks at the Master's level and 5% of marks at the Graduate level provided to SC and ST category.
19. It is also of relevance to note that at Clause-19, reference is made to the roster for the posts in accordance with the Government Orders. In terms of the Government Order of 20.06.1995 at Annexure-II which Government Order is referred to at Clause-19, that there is a provision for a candidate who has applied under 'Reserved' category
- 15 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 to migrate to 'General Merit' category in case merit is established.
20. A holistic reading of the recruitment notification at Annexure-'A' dated 09.01.2016 would no doubt indicate that passing in NET is a mandatory requirement. Though in the present case the selected candidate has obtained the benefit of passing NET with the benefit of relaxation, however, it must be noticed in terms of the score card, the said candidate is placed higher in the merit list and has been successful in having marks sufficient for selection even under the 'General Merit' list. The respondent No.2 has not obtained any relaxation as regards qualifying marks in her Master's Degree. If the respondent No.2 has not received benefit of relaxation in the qualifying marks and in terms of Clause-19 of the recruitment notification at Annexure-'A' dated 09.01.2016 is permitted to migrate to 'General Merit' category upon own merit, the only way of holistically interpreting conditions at Clause III(ii), and Clause-19 extracted hereinabove would be to give primacy
- 16 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 to Clause-19 and to permit the petitioner to migrate to the category of 'General Merit'. The notification referred to regarding NET cannot be read into to be a part of recruitment notification and thereby prohibiting respondent No.2 to migrate to 'General Merit' category by virtue of obtaining benefit of relaxation while clearing the NET. This would defeat the option of migrating to 'General Merit' on 'Reserved' category specifically provided under Clause-19.
21. Though the learned Senior Counsel appearing on behalf of the petitioner submits that the notification of 20.06.1995 relied upon by the respondents is as regards only roster and cannot be extended beyond it, however, we are of the view that under Clause-19 of Annexure-'A' provides the working of the roster to be in accordance with the Government Notification dated 20.06.1995. In terms of the said notification referred to in Clause-19 of the recruitment notification, it is permissible for a candidate who has applied under the 'Reserved' category to migrate
- 17 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 to 'General Merit' category. If this were to be so, we cannot restrict right of a candidate to migrate from 'Reserved' category to 'General Merit' category as provided for by Government Notification of the State of Karnataka referred to in Clause-19 of the recruitment notification by reference to the clearing of NET. The NET eligibility is apart from the minimum qualification. If that were to be so, the only manner of reading the notification at Annexure-A would be by giving primacy to Clause 19. Further, the passing of NET is only prescribed. The consequence of clearing NET with relaxation is not envisaged in the recruitment notification specifically.
22. It must be noticed that the judgment in Pradeep Kumar (supra) lays down the principle that those who had obtained the CTET eligibility because of relaxation benefits as 'OBC' category examinees cannot be permitted to migrate to 'General Merit' category. However, in the present case, the recruitment notification has a specific Clause i.e. Clause-19 which refers to
- 18 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 Government Order that provides for migration from 'Reserved' category to 'General Merit' category and in light of such prescription in the recruitment notification which is a distinguishing factor.
23. It is also to be noticed that the petitioner's application has been declared to be 'not eligible' in terms of the score card. This declaration of ineligibility of the petitioner's claim not having been challenged, she is out of the zone of consideration.
24. We find that the petitioner has not challenged her ineligibility by way of specific relief and in the absence of which, her right to contest and challenge to the selection of candidate also is not tenable.
25. Reliance is placed by the petitioner on the judgment in K. Shekar (supra) However, the facts in which the locus standi to challenge by an ineligible candidate was overlooked, was in a entirely different factual matrix. In K. Shekar (supra), the Apex Court
- 19 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 was dealing with a case where an applicant was appointed to the post of 'lecturer in Psychiatric Social Work' which was not advertised and the candidate had also applied only for the post of 'Assistant Professor'. It is in light of such flagrant violation of selection norms that locus standi was overlooked. The present case is on a different factual matrix where Clause-19 allows for migration from 'Reserved' to 'General Merit' category. In light of the same, the locus standi of the petitioner also assumes significance and cannot be overlooked.
26. We are also in agreement with the reasons assigned by the learned Single Judge on other aspects including as regards notification of combined examination conducted for the Agricultural Research Service along with NET for the year 2017 cannot be read into the recruitment notification. Even otherwise, the restriction as regards those qualified under NET with relaxed marks cannot have the effect of whittling down the right under the
- 20 -
NC: 2024:KHC-K:6661-DB WA No.200073 of 2023 recruitment notification which provides for migration from 'Reserve' category to 'General Merit' category.
27. In light of the above, we find no reason to interfere with the order of the learned Single Judge dated 28.11.2022 passed in W.P.No.207640/2017 and accordingly, the petition is rejected.
Sd/-
(S.SUNIL DUTT YADAV) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE VP/VGR