Karnataka High Court
Dr.Vishwanatha vs The University Of Mangalore on 24 February, 2020
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B. VEERAPPA
WRIT PETITION NO.10443 OF 2014 (S-RES)
BETWEEN:
Dr.Vishwanatha,
S/o Late Mallegowda,
Aged about 51 years,
Working as Associate Professor,
UCFA, University of Mysore,
Mysore - 570 006.
Resident of :-
No.1257, Paduvana Road,
4th Cross, T.K.Layout,
4th Stage, Kuvempunagara,
Mysore - 570 023.
... PETITIONER
(By Sri. K.N. Nitish for Sri K.V.Narasimhan, Advocate)
AND
1. The University of Mangalore,
Mangalagangotri,
Mangalore - 574199, D.K.District,
Represented by it's Registrar.
2. The Vice-Chancellor,
University of Mangalore,
Mangalore - 574199, D.K.District.
2
3. Sri.Somanna,
S/o Siddaiah,
Hongalli (Ambedkar Colony),
K.R.Sagara Post,
Srirangapatna Taluk,
Mandya District - 571607.
Presently Working as Professor,
Kannada Department,
The University of Mangalore,
Mangalagangotri,
Mangalore - 574199,
D.K. District.
... RESPONDENTS
(By Ms. Ashwini for Smt. Belle Ravivarma, Advocate for
R1 and R2;
Sri K. Chandranath Ariga, Advocate for R3)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the
order/Official Memorandum at Annexure-M dated
02.12.2013 issued by respondent No.1 and direct
respondent Nos.1 and 2 to issue the order of appointment
to the petitioner to the post of Professor, Kannada
Department, in the University, etc.
This Writ Petition coming on for Preliminary Hearing
in 'B' Group, this day, the Court made the following:
3
ORDER
The petitioner in this writ petition has sought for -
(a) Issue a writ of certiorari, any other writ, order or direction, quashing the order/Official Memorandum at Annexure-M bearing No.MU/118/EST(1)/2013-14 dated 02.12.2013 issued by respondent No.1; (b) Issue the order of appointment to the petitioner to the post of Professor, Kannada Department in the University Field Marshal K.M.Cariappa College, Madikeri.
2. It is the case of the petitioner that petitioner belongs to a backward community, (Veerashaiva/ Lingayath), which is treated as III-B category by the Government of Karnataka. In the year 1987, the petitioner acquired Master's Degree in Kannada with 58.16% of the aggregate marks. Thereafter, he worked as a full time lecturer in Kannada in 'Mahajana Education Society' during the period 1988-1993. During the year 1993, the petitioner was also awarded Ph.D. in Kannada. On 29.07.1994, the petitioner was appointed as a permanent 4 lecturer in Kannada in 'Maharaja's College', University of Mysore, Mysore. On 10.05.2013, the 1st respondent issued notification inviting applications for the post of Professor, Associate Professor etc. In response to the same, the petitioner applied for the post of Professor, Department of Kannada, Mangalore University. Thereafter on 16.11.2013, he was informed to appear for interview before the Board of appointment constituted as per statutes and UGC regulations in the chambers of Vice-Chancellor, Mangalore University, Administrative Building, Manasagangotri on 26.11.2013 at 10.00 a.m. The petitioner attended the said interview and ultimately, respondent No.1 appointed respondent No.3 as Professor of Kannada by the impugned order dated 02.12.2013 as per Annexure-M without any basis. Hence, the present writ petition is filed for the relief sought for.
3. The respondent Nos.1 and 2 - University filed objections and denied the averments and contended that in pursuance of the notification issued by respondent No.1, 5 invited applications for various cadres of Teachers. The total posts of Professors were 19 and 2 posts were reserved for candidates belonging to Scheduled Castes. The petitioner applied for the post of Professor in Kannada claiming reservation as a candidate belonging to Category III-B. The Expert Committee came to be appointed by respondent No.1 for the purpose of consideration of all the six applications received for the post of Professors on the basis of stipulated criterion found four candidates eligible and two candidates, namely Dr.M.S.Ashadevi and Dr.R.Chalapathy who did not secure the minimum required API Score of 400, ineligible. The petitioner has produced the APR Score obtained by each of the 6 candidates at Annexure-L. All the eligible candidates including the Petitioner were called for interview. Out of 4 persons called for interview, Dr.N.Y.Mattihal did not attend the interview. Three persons including the petitioner participated in interview. Under the UGC Regulations and the Statues, selection has to be made on the basis of 6 various parameters, which are set out hereunder along with the percentage weightage for each component:
(a) Academic Background: 27.5%
(b) Research Performance based on API secured and quality of Publications: 40%
(c) Assessment of domain knowledge and teaching skill: 20%, and
(d) Interview performance: 12.5%.
4. It was further contended that during the time of interview, the Selection Committee assessed the Teaching Skills for 20 marks and Interview for 12.5 marks, which put together come to 32.5 marks. Out of these 32.5 marks for Teaching Skills and Interview, the petitioner got 16.2 marks and respondent No.3 got 22.6 marks. Having regard to the higher merit of respondent No.3 as disclosed by the higher marks, he secured in aggregate, the Board of Appointments recommended the name of respondent No.3 for appointment to the post of Professor in Kannada. The recommendations of the Board of Appointments was accepted by the Syndicate in its meeting held on 7 30.11.2013. Accordingly, respondent No.3 has been appointed by the Official Memorandum dated 02.12.2013 as per Annexure-M.
5. It was further contended that the petitioner also participated in the interview conducted by respondent No.1 but he was not selected. Therefore, he cannot maintain the present Writ Petition as once he participated, he cannot challenge the process of selection.
6. It was further contended that the petitioner obtained total 66.2 marks and respondent No.3 obtained aggregate total 71.8 marks. Therefore, respondent No.1 appointed respondent No.3 strictly in accordance with the University Regulations and in accordance with the advertisement made. The petitioner is not entitled for the relief before this Court. Therefore, he sought to dismiss the writ petition.
7. Respondent No.3, who was selected for the post of Kannada Professor, also filed statement of 8 objection and denied the averments made in the writ petition and contended that the minimum marks for API for the post of Professor is 400. The petitioner has secured 520.5 and respondent No.3 has secured 509. The API mark is allocated by the Subject Expert Committee. That Committee has assessed the API of the petitioner at 520.5 and of respondent No.3 at 509. Therefore, the contention of the petitioner that his API score is 1294.95 is incorrect and false. It is further contended that out of two posts for SC candidates, one post is for women and one post for SC Rural. Respondent No.3 is an SC Rural Candidate and qualified to the post and is better merited than the petitioner and the selection Committee has properly selected respondent No.3. The aggregate marks of respondent No.3 is 71.8 and the petitioner got 66.2 marks. Therefore, the selection made is strictly in accordance with law. It was further contended that the selection made by the Authority was approved by the Syndicate. The approval of the Syndicate is not at all questioned by the petitioner before this Court. 9 Respondent No.3 came to be appointed in the year 2013 and this Court has not granted any interim order and respondent No.3 is continuing to work as Professor in Kannada. Therefore, at this stage, the petitioner has not made out any grounds to interfere with the impugned order and sought to dismiss the Writ Petition.
8. I have heard learned Counsel for the parties.
9. Sri K.N.Nitish, learned counsel for the petitioner mainly raises three points:
(i) Respondent No.3 is ineligible to be appointed as Professor;
(ii) Appointment of respondent No.3 is contrary to the reservation policy; &
(iii) Marks allotted to the petitioner is not in accordance with the criteria maintained by the University and in terms of the parameters for assessing academic background, research performance, domain knowledge and teaching skills for the recruitment of Professor.10
10. Elaborating the first point, Sri K.N.Nitish, learned Counsel contended that as per the qualification prescribed for the post of 'Kannada Professor', qualification No.4 clearly stipulates that minimum criteria stipulated in the Academic Performance Indicator [API] is based on performance and based on appraisal system developed by UGC in its Regulations. According to him, as could be seen from Table-1(A), Column No.5 of UGC Notification produced by respondent Nos.1 and 2 at Annexure-R1 to the statement of objections, the minimum API score to be secured by a person to be qualified for the post of Professor is 400 points. Respondent No.3 while filing his application to the post of Professor in Kannada has claimed API score to be at 626. Likewise, when he filed the application for the post of Principal, Mangalore University which at Annexure-R to the rejoinder filed by the petitioner on 24.11.2014, he has declared that his API score is 626. However, respondent Nos.1 and 2 did not call for interview to the post of Principal on the ground that the petitioner did not possess the required 400 API score points. The said 11 assessment is made by none other than respondent Nos.1 and 2 University. Therefore, the very same respondents have given 509 API score. It is impossible and impermissible too. Therefore, the computation of API score made by respondent Nos.1 and 2 at Annexure-R has not been questioned by respondent No.3. Therefore, respondent No.3 is not eligible to the post of Professor at all.
11. He further contended that as per the notification at Annexure-B in the writ petition, there were 19 vacancies in the post of Professors notified and out of it, 2 posts have been reserved for persons belonging to Scheduled Caste, out of it, 1 is for woman and 1 is for rural candidate. One post had been reserved for person belonging to the Category of III-B. As could be seen from the list of persons appointed as per the notification dated 10.05.2013 at Annexure-N to the writ petition, at Sl.No.7, it is seen that Dr.M.Krishnamurthy have been declared to be appointed and he belongs to Scheduled Caste. Name of respondent No.3 is at Sl.No.10. He belongs to the 12 Scheduled caste, as such, two men from Scheduled caste have been appointed. However, no person from category III-B has been appointed. Therefore, appointment of respondent No.3 is illegal.
12. He further contended that UGC qualification as per statement of objections clearly indicates the marks under each head:
Sl. Particulars In %
No.
1. Academic background 27.5 %
2. Research performance based on 40%
API score and quality of
publication
3. Assessment of domain knowledge 20%
4. Interview performance 12.5%
However, the marks allotted to the petitioner is only 66.2 and respondent No.3 is 71.8. Though, the petitioner stated in his application, while applying to the post of Kannada Professor, self assessment at 1294.5 and further 13 contended that the marks to be awarded to API score is at
400. 30 marks is to be awarded for API score of 400 points and 1 for every 15 additional API score. According to him, he is entitled to be awarded 40 marks, but erroneously 38 points had been given to him for the post of Doctoral Study Research with evidence of research publication, patent, book for one paper being published. 5 marks is awardable. If respondent Nos.1 and 2 awarded 40 instead of 38, and 5 marks extra, the petitioner should have been given 7 marks more and the total marks awardable to the petitioner would be 73.2 whereas the score allowed to respondent No.3 is 71.8. Therefore, the petitioner is better candidate than respondent No.3 and the very appointment of respondent No.3 is illegal and cannot be sustained contrary to the notification issued. He further contended that the very selection made by the University appointing respondent No.3 is not in accordance with the notification and in accordance with law. Therefore, he seeks to allow the writ petition.
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13. Per contra, Ms. Ashwini, learned counsel for respondent Nos.1 and 2 contended that in pursuance of the notification issued by the 1st respondent inviting applications to various cadres of teachers, the petitioner applied for the post of Professor in Kannada claiming reservation as a candidate belonging to Cadre -III-B. She would further contend that the Expert Committee came to be appointed by the 1st respondent consisting of five members and on consideration of all the six applications received for the post of Professor in different subjects, four persons were found eligible and two candidates namely Dr. M.S. Ashadevi and Dr. R. Chalapathy did not score minimum API score and became ineligible. All the eligible candidates including petitioner were called for interview. Out of four persons called for interview Dr. N.Y. Mattihal did not attend the interview, only three persons including the petitioner participated in the interview. As per UGC Regulations and Statute, the selection has to be made on the basis of various parameters with percentage of weightage fixed namely (a) Academic background 27.5%, 15
(b) Research performance based on API secured and quality publications 40%, (c) Assessment of domain knowledge and teaching skill 20% and (d) interview performance 12.5%. Considering the said parameters, the petitioner got 16.2 marks and respondent No.3 got 22.6 marks. Having regard to the higher merit, selection of respondent No.3 for the post of Professor in Kannada, was approved by the Syndicate in the meeting held on 30.11.2013. Accordingly, respondent No.3 has been appointed for the said post by the Official memorandum dated 02.12.2013 and respondent No.3 has reported to duty on 03.12.2013.
14. Learned counsel would further contend that in the statement of objections, it is categorically contended as to how the case of the petitioner and respondent No.3 was considered and ultimately selected respondent No.3 and the same is not denied by the petitioner in the present writ petition. It was further contended that on 30.11.2013, the Syndicate approved the appointment of 3rd respondent. 16 Same has not been challenged in the present proceedings. The petitioner having participated in the proceedings is estopped from challenging the appointment of respondent No.3 which has been made after following due procedures, strictly in accordance with law. Therefore she sought to dismiss the petition.
15. Sri Ariga, learned counsel for the contesting respondent No.3 sought to justify the impugned order passed by respondent Nos.1 and 2 and contended that the minimum marks for appointment for the post of Professor was fixed at 400 API points. Petitioner secured 520.5 points and respondent No.3 secured 509 points. The respondent No.3 is selected by the Expert Committee. Therefore the contention of the petitioner that he secured 1294.95 API score is incorrect and false. It was further contended that out of two posts meant for SC candidates, one is for 'woman' and one for 'rural candidate'. The respondent No.3 who was better merited than the petitioner was properly selected by the Expert Committee 17 under the SC Rural category. Respondent No.3 totally scored 71.8 marks and the petitioner got 66.2 marks and therefore the selection made is strictly in accordance with law. The selection of 3rd respondent was approved by the Syndicate which has not at all been questioned by the petitioner in this petition. The selection and appointment of respondent No.3 was done in the year 2013 and there is no interim order. Therefore the petitioner is not entitled to any relief before this Court at this stage. He would further contend that the respondent No.2 considering the entire material on record has proceeded to pass the order selecting respondent No.3 as Professor in Kannada. Same was approved. Therefore the petitioner is not entitled for any relief before this Court under Articles 226 and 227 of the Constitution of India.
16. In support of his contentions, learned counsel for 3rd respondent relied upon the dictum of the Hon'ble Supreme Court in the case of UNION OF INDIA AND 18 OTHERS, AIR 2008 SC 5, at para 18 and sought to dismiss the petition.
17. Having heard learned counsel for the parties, it is not in dispute that respondent Nos.1 and 2 issued notification dated 10.05.2013 inviting applications in the prescribed form from qualified candidates of Indian nationality to 19 posts of Professors, and 15 posts of Associate Professors. Out of 19 posts of Professors to various subjects, It is also not in dispute that the petitioner and respondent No.3 applied for the post of Professor in Kannada. According to the petitioner, in his application at Annexure-H, he has stated that from Category I/II/III of Table I/IV/VII in Appendix III of UGC Regulations, 2010, he scored consolidated API score of 1294.5. According to respondent No.3, he filed application claiming his consolidated API score at 626. The University, considering the applications under the UGC Regulations and Statutes on the basis of various parameters which are set out in the petition as under:
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TABLE - I(A) Column - 5 PARAMETERS FOR ASSESSING ACADEMIC BACKGROUND, RESEARCH PERFORMANCE, DOMAIN KNOWLEDGE AND TEACHING SKILLS FOR THE RECRUITMENT OF PROFESSOR SL.N Parameter Max o. Marks /points A. ACADEMIC BACKGROUND:
01 Percentage of Marks secured 55 % & above - 02 ; 60 % & above - 03; 05 70 % & above - 04 ; 80 % & above - 05 02 Post Doctoral Studies / Research (with evidence of Research Publications/ Patents/Books) 12.5 6 Months & above - 5 (at least one paper) 1 Year & above - 7.5 (at least two papers) 2 years & above - 12.5 (at least three papers) 04 Regular full time teaching experience -1 per completed year of experience 10
B.RESEARCH PERFORMANCE:
Consolidated minimum API score of 400 points - 30 Additional API scores - 01 per 40 15 Addl. API score C. DOMAIN KNOWLEDGE & TEACHING SKILLS:
Domain Knowledge and Teaching skills may be assessed by the Committee based on a Lecture on a topic in the subject; 20
-Knowledge in the subject - 10 (Maximum)
- teaching skills - 10 (Maximum) 20
18. The main grievance of the petitioner in the present writ petition is that, as stipulated in the performance index appraisal system developed by UGC in its Regulation, as could be seen from TABLE - I(A) Column
- 5 produced by respondent Nos.1 and 2, the minimum score to be secured by a person to be qualified for the post of Professor is 400 points. The respondent No.3 while filing the application to the post of Professor claims 626 points. The application filed by respondent No.3 for the post of Principal discloses that respondent No.3 was not qualified for the post of Principal. Therefore the very appointment made appointing respondent No.3 as Professor in Kannada cannot be sustained.
19. A careful perusal of Annexure-J would disclose that the 3rd respondent applied only for the post of Professor in Kannada. The Annexure-R relied upon by the petitioner in the present case is not applicable to the post of Professor, but it was applicable to the post of Principal. That cannot be a ground to consider the application of the 21 petitioner. It was further contended that according to the petitioner, as per the notification, out of 19 posts of Professors, only two posts belong to SC, one for Woman and one for Rural Candidate and one post reserved for person belonging to category - III(B). But a careful perusal of Annexure-G - notification clearly indicates that there were 19 posts of Professors in different subjects including Kannada, out of which, only one post of Kannada Professor was to be filled up, for which both the petitioner and 3rd respondent applied. The argument advanced by the learned counsel for the petitioner in the synopsis clearly indicating that as out of 19 posts, only two posts were reserved, namely, one for Woman and one for Rural quota under the Scheduled Caste category, and thereby deprived the selection of the petitioner, cannot be accepted, as, out of 19 posts of Professors, only one post was earmarked for 'Professor in Kannada' and both the petitioner and respondent No.3 applied to the said post.
20. Though learned counsel for the petitioner invited the attention of this Court to Annexure-H and 22 contended that, while applying to the post, petitioner has made self-assessment at 1294.5 points, but according to respondent No.3, by self-assessment, he secured only 626 points. But, self-assessment is not a criterion to consider for selection to the post of Professor. As already stated supra, the selection criteria is fixed by the selection authority and is based on the academic background, research performance based on API score and quality of publications, assessment of domain knowledge and teaching skill and interview performance. Based on the said criteria, the petitioner was allotted 66.2 points and 3rd respondent was allotted 71.8 points. Therefore, the contention of the petitioner that he is entitled to be awarded 40 marks as disclosed in his application at Annexure-H, but only 38 marks is given and further for post doctoral study / research paper publication, another 5 marks is awardable to the petitioner, cannot be accepted.
21. The parameters for assessing academic background, research performance, domain knowledge and 23 teaching skills for recruitment of Professor stated to be as per TABLE - I(A) Column - 5 already extracted above, indicates that under Academic Background (a) a maximum of 5 marks / points can be allotted for percentage of marks secured; (b) a maximum of 12.5 marks / points can be secured on the basis of research publications; (c) a maximum of 10 points on the basis of teaching experience can be allotted. Further under Research Performance 30 points would be granted for the consolidated minimum API score of 400 points and additional 1 point for every 15 additional API score. Under Domain knowledge & Teaching Skills, 20 points can be granted i.e. maximum 10 points for knowledge in the subject and another 10 points for teaching skills.
22. The details of the marks secured by the petitioner and respondent No.3 and other candidates who attended the interview for the post of Professor in Kannada has been produced by the respondents as per Annexure- R2 and the same has been extracted hereinbelow: 24
DETAILS OF API AND INTERVIEW MARKS OF CANDIDATES CALLED/ ATTENDED FOR INTERVIEW FOR THE POST OF PROFESSOR IN KANNADA Sl.N Candidate Name and Total Points based Interview Total o. Address API on Academic marks Marks Score record and obtai research ned performance
1. Dr.P.Vishnu Bhat 403 54 16 70 S/o Narayana Bhatta P, "Dhatri" Athrady Udupi Tq.
Mobile:9448986527 2 Dr.N.Y.Mattihal 529.5 52.63 Dr.R.C.Hiremath institute of Kannada Studies, Karnataka university, Absent for Interview Dharwad-580 003.
3 Dr.Viswanata 520.5 50 16.2 66.2 Alampu, #1257, Paduvana Road, IV Cross, T.K.Layout, Kuvempunagar, Mysore-570 023.
4 Dr.Somanna 509 49.2 22 71.8
Associate Professor .6
Department of
Kannada
FMKMC College,
Madikeri
5 Dr.M.S.Ashadevi 312.5 15
5/41, Sameera Krupa,
st st
1 Main, 1 Stage, KHB
Colony, Basaweshwara No required
Nagar, Bangalore, Ph minimum 400 API
No.080 23482105 points
Mobile No.9845235045
[email protected]
6 Dr. R.Chalapathy 392.5 13
th
No.1189, 9 Cross, 'B'
Sector,
Yelahanka New Town, No required
Bangalore-560 106 minimum 400 API
Mobile:9449671226 points
25
From the above it is clear that the petitioner has obtained total API Score of 520.5, 50 points based on API Score, 16.2 interview marks, in all, 66.2 marks. The respondent No.3 though secured 509 API Score and 49.2 points, his interview marks are 22.6, in all 71.8 marks.
Therefore the contention of the petitioner that he is entitled to 40 marks and 5 marks as contended supra cannot be accepted.
23. The material on record clearly depicts that out of 19 posts, only one post was reserved for Professor in Kannada. Admittedly, the 3rd respondent got higher marks than the petitioner and 3rd respondent came to be appointed by the respondents vide Official memorandum dated 02.12.2013. The same was approved by the Syndicate on 30.11.2013. The petitioner though participated in the proceedings, did not challenge the selection criteria fixed by the University. Having accepted the selection criteria and having participated and being unsuccessful, the petitioner has filed the present writ 26 petition for quashing the appointment of respondent No.3 which is impermissible.
24. It is also not in dispute that the recommendations made by the Board of Appointments was accepted by the Syndicate on 30.11.2013 and accordingly, respondent No.3 came to be appointed on 02.12.2013 and that from 1st January, 2014, there is no interim order granted by this Court. The respondent No.3 has continued as Professor in Kannada for more than seven years. At this stage, the appointment of respondent No.3 made by respondent Nos. 1 and 2 after following procedures based on the performance, academic qualification, interview as well as selection criteria fixed by the authority, cannot be interfered by this Court. The petitioner has not made out any ground to interfere with the appointment of respondent No.3 made by respondent Nos. 1 and 2 which is based on merit and strictly in accordance with the Regulations and parameters of the UGC.
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25. The contention of the petitioner that the 3rd respondent was not eligible to be appointed as 'Principal' is not a ground to interfere with the selection made by the authority, appointing 3rd respondent as Professor in Kannada, strictly on merit. It is also relevant to state that the petitioner did not challenge the approval of the 3rd respondent's appointment made by the Syndicate as long back as on 30.11.2013. Once the petitioner participated without any demur in the selection process, after selection of respondent No.3 strictly based on the Regulation and Statutes of the University, the petitioner is estopped from challenging the appointment of respondent No.3. My view is fortified by the dictum of the Hon'ble Supreme Court in the case of UNION OF INDIA AND OTHERS Vs. VINOD KUMAR AND OTHERS, AIR 2008 SC 5, (supra), at para 18 which is extracted hereunder:
" 18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar and others v. Rajiv Govil 28 and others, AIR 1991 SC 1607). (See also Rashmi Mishra v. Madhya Pradesh Public Service Commission and others
- 2006 (11) Scale 5).
26. It is also brought to my notice by learned counsel for the University that in respect of post of Lecturer in the case of Dr. Lakshmi V. Vs. State of Karnataka and Others in W.P. No.17271/2014(S-RES), paragraph Nos.5, 6 and 7 held as under:
"5. On the other hand, learned counsel for the respondent No.3 submitted that the selection has been made strictly in accordance with the guidelines framed by the University's Grant Commission and petitioner had participated in the process of selection and therefore, she cannot be permitted to turn around and challenge the process of selection. In support of aforesaid submissions, reliance has been placed on the decisions of Supreme Court in 'MADRAS INSTITUTE OF DEVELOPMENT STUDIES AND ANOTHER VS. K. SIVASUBRAMANIYAN AND OTHERS', (2016) 1 SCC 454 and in the case of 'UTTAR PRADESH PUBLIC SERVICE COMMISSION VS. RAHUL SINGH AND ANOTHER', (2018) 7 SCC 254. Learned counsel for the respondent No.5 while supporting the submissions made by learned counsel for the respondent No.3 submitted that 29 evaluation of eligibility of the suitable candidates including the petitioner and respondent No.5 has been made by five member committee on the basis of the guidelines framed by the Universities Grant Commission. It is further submitted that the petitioner has participated in the process of selection without any demur and therefore, cannot be allowed to challenge the process of selection. In support of aforesaid submissions, reliance has been placed on decisions of the Supreme Court in 'OMPRAKASH SHUKLA VS. AKHILESH KUMAR SHUKLA', AIR 1986 SC 1043, 'MADAN LAL AND OTHERS VS. STATE OF JAMMU AND KASHMIR AND OTHERS', (1995) 3 SCC 486 and 'UNION OF INDIA AND OTHERS VS. S.VINOD KUMAR AND OTHERS', AIR 2008 SC 5.
6. I have considered the submissions made on both sides and have perused the record. Admittedly, the criteria for selection was fixed by the respondent No.3 University and the marks were also allocated, which were to be awarded to the candidates under different heads. Under the heads of Academic Record, Research Performance, Assessment of Domain Knowledge & Teaching Skills and Performance in the interview, 37.5, 20, 30 and 12.5 as minimum percentage of marks were fixed respectively. As per the guidelines framed by the Universities Grant Commission, the parameters for assessing the academic record, research performance, domain of knowledge, teaching skills for the post in question was also fixed. A Committee comprising 30 of five members, after comparative evaluation of the merits of the candidates and in particular petitioner as well as respondent No.5 have awarded 64 marks to the petitioner, whereas, the respondent No.5 has been awarded 70.5 marks. It is pertinent to mention here that out of 100 marks, only 12.5 marks were reserved for interview, out of which, petitioner has secured 5.8 marks whereas respondent No.5 has secured 8.3 marks. The difference between the marks awarded to the petitioner as well as respondent No.5 in the interview is not grossly disproportionate but is marginal. It is well settled law that this Court in exercise of powers of judicial review cannot sit in appeal over the decision taken by a committee of experts and substitute its opinion with regard to eligibility of candidates.
7. The Supreme Court in 'MARRIPATI NAGARAJA AND OTHERS VS. GOVERNMENT OF ANDRA PRADESH AND OTHERSS.', (2007) 11 SCC 522 has held that if a candidate participates in the process of selection without any demur, such a candidate cannot be permitted to challenge the process of selection. Similar view has been taken in 'DHANANJAY MALIK AND OTHERS VS.
STATE OF UTTARANCHAL AND OTHERS', (2008) 4 SCC 171 and it has been held that a candidate who has participated in the process of selection without any demur is estopped from challenging the selection criteria as well as the process of selection on the ground that the same was not made as per the rules and the prescribed educational 31 qualifications were not adhered to. Similar view was taken in 'MADRAS INSTITUTE OF DEVELOPMENT STUDIES AND ANOTHER' and 'UTTAR PRADESH PUBLIC SERVICE COMMISSION' supra. In the instant case, admittedly the petitioner has participated in the process of selection without any demur and without any objection. Therefore, after having participated in the process of selection she cannot be permitted to turn around and challenge the process of selection.
On the basis of very notification issued by the University, this Court, considering the selection criteria, dismissed the writ petition.
27. The Hon'ble Supreme Court in the case of MADRAS INSTITUTE OF DEVELOPMENT STUDIES AND ANOTHER Vs. K. SIVASUBRAMANIYAN AND OTHERS [(2016) 1 SCC 454] considering the guidelines issued by the University and the fact that the candidate though participated in the selection process could not get selected in accordance with the selection process, held that an unsuccessful applicant / candidate who consciously took part in the selection process, now cannot turn around and 32 challenge the selection process. At paragraph Nos.15, 17 and 21 it was held as under:
" 15. In G. Sarana v. University of Lucknow (1976) 3 SCC 585, a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology 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 in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p.591, para
15) " 15. We do not, however, consider it necessary in the present case to go into the question of the 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 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 33 decision of this Court in Manak Lal Case (AIR 1957 SC
425) where in more or less similar circumstances, in this appeal 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: (AIR p.432 para 9).
"9. ... In this appeal 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."
xxxxxx xxxxxxx xxxxxx xxxxxx xxxxxx " 17. In Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p.584, para 16) " 16. We also agree with the High Court (2008 SCC OnLine Pat 321) 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 of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even 34 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 disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
xxxxxx xxxxxx xxxxxx xxxxxx xxxxxx
21. 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 respondent - writ petitioner has no merit in the case in asmuch as there is no illegality in the decision dated 14-8- 2006 taken by the appellant Institute for appointment of aforesaid Respondents 2 to 6 to the post of Associate Professor."
28. Similar view is also taken by the Supreme Court in the case of UTTAR PRADESH PUBLIC SERVICE COMMISSION, THROUGH ITS CHAIRMAN AND ANOTHER Vs. RAHUL SINGH AND ANOTHER, reported in (2018) 7 SCC 254. At para 11 therein, it has been held as under: 35
" 11. We may also refer to the following observations in Paras 31 and 32 which show why the Constitutional Courts must exercise restraint in such matters: (Ram Vijay Singh case (2018) 2 SCC 357) "31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse -- exclude the suspect or offending question.
32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must 36 not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination -- whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers."
29. It is relevant to state that the petitioner having participated in the selection process without demur, cannot be allowed to now challenge the process of selection of appointment of 3rd respondent as Professor in Kannada by 37 the University after following the procedure in accordance with law.
30. It is well settled that this Court, in exercise of power of judicial review cannot sit in appeal over the decision taken by Expert Committee and substitute its opinion with regard to eligibility of the candidates, as admittedly, the petitioner has not challenged the eligibility criteria fixed by the University. Therefore the petitioner is not entitled for any relief in exercise of the power under Article 226 and 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE sac*