Karnataka High Court
Dadepeer A. Peerajade vs Vice-Chancellor And Chairman Of ... on 30 January, 2006
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
JUDGMENT D.V. Shylendra Kumar, J.
1. Writ petition by a person who had aspired to fill up the post of Assistant Professor cadre (ICAR Schemes) in the subject as notified for being filled up by the University of Agricultural Sciences, Bangalore (for short, 'the University') in terms of its Notification No. AO/RT/1129/2004-05, dated 13th December, 2004, published in the Karnataka Gazette, dated 30th December, 2004 (copy at Annexure-E to the writ petition).
2. The petitioner had applied to the post of Assistant Professor in Genetics and Plant Breeding, There were as many as three posts available in this subject, out of which one post had been reserved for persons belonging to IIB-1 category.
3. It is the claim of the petitioner that he is one qualified for seeking this post as against the said reserved category and being an eligible candidate in terms of the qualifications prescribed and indicated in the very notification, which, for the post, reads as under:
II. Assistant Professor Grade Posts (ICAR Schemes) Scale of Pay Rs. 8000-275-13500
--------------------------------------------------------------------------------
SI. No. Subject No. of posts Roster
--------------------------------------------------------------------------------
1. X X X
2. X X X
3. Genetics and Plant Breeding 3 Current: 3 posts IIB-1, GM-2 (W-1)
4. X X X
--------------------------------------------------------------------------------
4. Petitioner had been called for an interview in response to his application and was interviewed by the Selection Committee on 14-9-2005 in terms of the intimation, which is though dated 30-9-2005, a copy of which is produced at Annexure-H, Sri C. Dinakar, learned Counsel for the petitioner submits that it has wrongly mentioned the date as 30-9-2005, but it should read as 30-8-2005, which perhaps is so as the date of the interview was 14-9-2005, as mentioned in this intimation, and it appears, the petitioner did in fact attend the interview on 14-9-2005.
5. It appears the very Selection Committee had interviewed the candidates for several other posts, which had been advertised in terms of the very notification and submitted its select list for the approval of the Board of Regents of the University and thereafter selected candidates had been sent letters of appointment.
6. It so happened that the petitioner was the only applicant for the post of Assistant Professor in Genetics and Plant Breeding in the reserved category, based on the reservation for such category also being one post and the petitioner was surprised that he had not been sent an appointment letter and on enquiry having learnt that his candidature has been rejected, has approached this Court praying for issue of a writ in the nature of writ of mandamus to direct the first respondent University to select the petitioner and appoint him in the cadre of Assistant Professor in Genetics and Plant Breeding in the University, reserved in favour of a person belonging to backward Class-IIB-1.
7. Respondents 1 and 2 red caveat through their Counsel Sri R Sridhar Hiremath, who took notice on behalf of the respondent and has also filed statement of objections on their behalf.
8. Submission of Sri C. Dinakar, learned Counsel for the petitioner is that the petitioner fulfills the qualification criteria in terms of the notification dated 13-12-2004; that the petitioner had produced the relevant certificates in terms of this notification and the qualifications as had been indicated in the notification; that the petitioner was the only applicant for the post in the reserved category and it is to the surprise and shock of the petitioner that he had not been selected notwithstanding the petitioner having the necessary qualifications for the post that it is aggrieved by the non-selection of the petitioner as against the reserved post the present writ petition is filed.
9. Submission of Sri Dinakar is that if the petitioner has been disqualified on considerations or for reasons not germane to the requirements as indicated in the respondents' very notification, the act of non-selection becomes bad in law, which warrants interference by this Court in the exercise of writ jurisdiction and appropriate writ should be issued and in this regard the learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Comptroller and Auditor-General of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr. , particularly para 20 of this decision, wherein the Supreme Court had occasion to observe that it is within the jurisdiction of the High Court even in exercise of Article 226 powers to issue a writ of mandamus or writ in the nature of mandamus to direct the Government or a public authority who had failed to exercise the function or wrongly exercised the function, including issue a writ in the given case to pass an order by itself either directing the authority to make appointment or pass orders to that effect by the Court itself. Placing reliance on this decision, Sri Dinakar, learned Counsel for the petitioner urges that a mandamus should be issued to the respondents to appoint the petitioner to the post which had been advertised.
10. State of objections filed on behalf of the respondents 1 and 2, inter alia, goes to justify the non-selection of the petitioner to the post which is on the premise that the petitioner had been not produced any certificate issued by any recognised agency or accredited agency indicating the petitioner's proficiency for selection as against the notified post in the specific subjects namely, Genetics and Plant Breeding. It is averred that though the petitioner had appeared before the selection committee, the committee had disqualified the petitioner for the reason that National Eligibility Test (NET) certificate produced by the petitioner was not in respect of the subject Genetics and Plant Breeding but a certificate general in nature namely 'Life Science' and having regard to the nature of the post, the teaching qualifications required on the part of the person to handle the subject, a specific NET certificate was very desirable and as the petitioner was found to be wanting in having one, the Selection Committee had thought it fit not to reckon the petitioner as an eligible candidate for the post and had accordingly rejected his candidature. The selection committee having not recommended the case of the petitioner, the University did not appoint the petitioner and therefore the action is justified in consonance with the procedure for selecting persons to the posts notified and particularly as the expert Selection Committee had opined that the petitioner is not a qualified eligible person, it was inevitable to reject the candidature of the petitioner and therefore on receipt of such report from the selection committee, the Board of Regents of the University had taken further steps to transfer the reserved post to the general category and had carried forward the reservation for future in IIB-1 category and on such transfer to the general category though a candidate has been selected for the purpose, issue of appointment letter is deferred in view of certain deliberations in the 313th Special (Adj) meeting of the Board of Regents of the University held on 10-1-2006.
11. Submission of Sri Sridhar Hiremath, learned Counsel for respondents 1 and 2 is that the post notified was a highly specialised post that of Assistant Professor for specific subject of Genetics and Plant Breeding; that the person should be fully qualified for taking up a teaching assignment in respect of such subjects; that even in terms of the publication if had been indicated that the post is one in consonance with the ICAR scheme that as advertised, and that in itself was indicative that a person should necessarily had the commensurate qualifications in terms of NET certificate issued by the ICAR or its affiliated organisations; that in the case of some candidates, the applicants had produced such certificate issued by the Agricultural Scientists Recruitment Board, which it is claimed, is an organisation having affiliation to ICAR and University Grants Commission (UGC) and as the University has used such certificates as eligibility criteria in respect of other candidates and as it was found by the selection committee that the petitioner did not have one such, the petitioner had not been selected and such being the process, it cannot be said that it is in any way derogatory or in contravention of the very notification; that a candidate who has applied if should have looked into the entire notification starting from the beginning, where it is indicated as ICAR Scheme, it would have become obvious that the person should necessarily have a certificate for having qualified in the NET, issued in the specific subject by a recognised agency, i.e., either UGC, CSIR or ICAR or any affiliated or accredited organisation, and when the petitioner lacks in one such certificate and had not produced any such certificate from any of such recognised organisations in the specific subject, the petitioner cannot have any grievance particularly when an expert selection committee had not found the petitioner eligible to fill the post.
12. Learned Counsel for the respondents would concede that assuming that the notification did not expressly say that the certificate like NET certificate issued by CSIR should in the specific subject, it could have been inferred that any candidate having familiarity in such matters would be aware of such requirement and the petitioner being himself a post-graduate and also doing research works in other subject in the very University, should have known such requirements and therefore it cannot be said that the petitioner is either surprised or is sought to be disqualified post facto after issuing of the appointment letters.
13. On a proper reading of the notification, it is obvious that subject to fulfilling other conditions, a candidate having a certificate to indicate he has cleared NET for Assistant Professor conducted by CSIR cannot be disqualified on the grounds of want of eligibility. Petitioner in fact had produced one such certificate dated 1-11-2003, copy is produced at Annexure-D, which specifically indicates that the petitioner had qualified for filling up the posts of lectureship in life science and the phrase life science' includes the subjects of Genetics and Plant Breeding at Item 4 of paper-I, Section B and genetics figures at Item 8 of paper-II of Section B of Life Science in terms of the syllabus prescribed for these papers, which is indicative in Item I to the information bulletin and application form for candidates seeking for securing the certificate in general research fellowship and eligibility for lectureship conducted by the Council of Scientific and Industrial Research, CSIR Complex, New Delhi, a copy of which is produced at Annexure-J to the writ petition.
14. Submission of learned Counsel for the petitioner is that while CSIR issues only such certificates, which is a certificate for eligibility for lectureship in major science subjects, including Genetics and Plant Breeding, which is comprehensively termed as life science; that CSIR does not issue specific certificate of NET either in Genetics or Plant Breeding and if one should go by the notification and as this aspect or fact was evident and should be presumed to be known to the respondent-University also and if any meaning is to be attributed to the advertisement and the qualifications prescribed in terms of the advertisement, particularly in making the certificate of NET issued by CSIR as a qualification, then it should be necessarily understood that the petitioner fills the bill as the petitioner had produced a certificate which alone is issued by the CSIR even for the purpose of subjects of genetics and plant breeding, definitely merits acceptance.
15. This fact-situation is not disputed by the respondents. But what is urged on behalf of the respondents is that when a person produced a certificate, one such of the nature of issued by CSIR, which is more general in nature and a specific certificate which is issued by any accredited agency than in the matter of selection it is within the domain of the University to select such a person who perhaps has better qualifications, better suitable or has acquired the specialised knowledge in the specific subject and if the petitioner had; found wanting in such specialised skill or knowledge in the specific subject by the Selection Committee and his candidature had been rejected, no exception can be taken for the action of the University and no interference in the matter is warranted.
16. I have given my anxious consideration to the rival submissions. It is not in dispute that the post notified by the University which is an institution or organisation coming within the expression of 'State' under Article 12 of the Constitution of India, the mandate of Article 16 operates against the respondents. Fair-play and eschewance from arbitrariness is inevitable for the respondents. Equal opportunity means to consider all eligible candidates and not to deprive an opportunity for consideration on irrelevant consideration or even on consideration not notified or indicated. A notification of the nature of Annexure-E should be taken at its face value and not by the understanding of the same by process of interpretation. It should be borne in mind this is a publication inviting applications and it is necessary that such publication particularly by indicating the qualifications for any particular post should be as clear and as precise as is possible. At any rate the qualifications not mentioned therein cannot be added by the process of interpretation or even on an understanding of an export interview committee nor a candidate who fits the bill in terms of the very notification can be kept out of the zone of consideration on the understanding or in view of certain pretences indicated by the Selection Committee. The function of the selection committee is to make selection from amongst the available eligible candidates. It is not the function of the selection committee to redefine or prescribe afresh qualifications not found in the notification as at Annexure-E. The candidates when are numerous and the selection from eligible candidates, necessarily the Selection Committee has a role to play and in the matter of selection it is undoubtedly the domain of the selection committee, unless that again is vitiated by mala fides, bias, victimisation, whimsical or arbitration action.
17. The petitioners eligibility cannot be disputed by the respondent at this stage, as even admittedly the respondents themselves have called the petitioner for interview. It is upto the respondents whether to call an ineligible candidate for interview or not, but it cannot be said that the petitioner lacks eligibility criteria when he had been called for interview and had been interviewed for the post.
18. In the present case, there was in fact no job for the selection committee until and unless perhaps the selection committee found that the applicant was an objectionable person for any other reason, which could have been relevant for the particular post. In terms of the counter what is indicated is that the petitioner was not selected because he had not produced the eligibility certificate in the specific subject of Genetics and Plant Breeding issued by any of the accredited institutions by a recognised agency.
19. That in fact was not the requirement, but when the petitioner had fulfilled the requirement in terms of the very notification, the petitioner could not have been kept out. The rejection of the candidature of the petitioner on the premise that he had not produced a certificate as was desired by the selection committee clearly amounts to violation of the right of the petitioner under Article 16 of the Constitution of India in keeping out the petitioner from the zone of consideration, which is an act contrary to the very notification.
20. The post being only one and the petitioner being the only candidate, it is inevitable for the respondents to consider his candidature and proceed on further, unless it is found that the petitioner is wanting in any other manner, which was the norms followed by the University in general. No such objection has been put-forth by the University in the counter filed on behalf of the respondents.
21. In the circumstance, it is inevitable to issue a writ in the nature of writ of mandamus directing the respondents to consider the candidature of the petitioner for appointment as against the notified post and to pass appropriate orders within thirty days from today.
22. Non-selection on the ground of want of production of a certificate as indicated in the counter is declared to be illegal and violative of Article 16 of the Constitution. It is also not open to the respondents to de-notify the post and to transfer it to any other category or carry forward the reservation to the following years particularly when an eligible candidate was very much available. Such action will have be retraced by the respondents if already taken as indicated in the counter.
23. Writ petition is allowed. Rule made absolute.