Karnataka High Court
Dr D Nagraju M S/O Manchaiah vs Shri Venu S A S/O Anjinanurthy on 6 March, 2024
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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NC: 2024:KHC-D:4921-DB
WA No. 100522 of 2023
C/W WA No. 100589 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT APPEAL NO.100522 OF 2023 (S-RES)
C/W
WRIT APPEAL NO.100589 OF 2023 (S-RES)
IN W. A. NO.100522 OF 2023
BETWEEN:
1. UNIVERSITY OF AGRICULTURAL SCIENCES
REP. BY ITS REGISTRAR
SRI. VINAYAK A. PALANAKAR
AGED 45 YEARS
OCC: SERVICE
R/O DHARWAD , DIST. DHARWAD.
2. VICE-CHANCELLOR /CHAIRMAN OF
SELECTION COMMITTEE
UNIVERSITY OF AGRICULTURAL SCIENCES
DHARWAD,
DHARWAD - 580 005.
... APPELLANTS
Digitally signed
by ROHAN
HADIMANI T (BY SRI. RAMACHANDRA MALI, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. SRI. VENU S.A.
S/O ANJINAMURTHY
AGED 34 YEARS
R/O NO.201, GURUKRUPA RESIDENCY,
2ND FLOOR, 6TH CROSS, MATHRU LAYOUT
YELAHANKA NEW TOWN,
BENGALURU - 560 064.
2. STATE OF KARNATAKA
REP. BY ITS ADDITIONAL CHIEF SECRETARY
DEPT. OF AGRICULTURE,
BENGALURU -01.
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NC: 2024:KHC-D:4921-DB
WA No. 100522 of 2023
C/W WA No. 100589 of 2023
3. DR. D. NAGRAJU M
AGED 35 YEARS
S/O MANCHAIAH
NEW EXTENSION,
CHIKKAMALPURA POST,
HANUR,
CHAMARAJANAGAR - 571 440
... RESPONDENTS
(BY SRI. THARANATH POOJARY, SR. COUNSEL FOR
SRI. MANJUNATH Y. SHIRUR, ADVOCATE FOR R1;
SRI. J.M. GANGADHAR, AAG FOR R2;
SRI. SUNIL DESAI, ADVOCATE FOR R3)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO CALL FOR THE RECORDS IN
W.P.NO.104330/2023 (S-RES) ON THE FILE OF THE LEARNED
SINGLE JUDGE OF THIS HON'BLE COURT AND SET ASIDE THE
ORDER DTD. 16-8-2023 MADE IN THE ABOVE WRIT PETITION
PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT
AS THE SAME BEING ERRONEOUS AND NOT SUSTAINABLE IN LAW
AND CONSEQUENTLY DISMISS THE W.P.NO.104330/2023 (S-RES)
AS DEVOID OF MERITS IN THE INTEREST OF THE JUSTICE AND
EQUITY.
IN W. A. NO.100589 OF 2023
BETWEEN:
1. DR. D. NAGRAJU M.
S/O MANCHAIAH
AGED ABOUT 35 YEARS
NEW EXTENSION,
CHIKKAMALPURA POST
HANUR TALUK,
CHAMARAJANAGAR
... APPELLANT
(BY SRI. SUNIL DESAI, ADVOCATE)
AND:
1. SHRI. VENU S.A.
S/O ANJINAMURTHY
A/A 34 YEARS
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NC: 2024:KHC-D:4921-DB
WA No. 100522 of 2023
C/W WA No. 100589 of 2023
R/A.NO.201, GURUKRUP RESIDENCY,
AP ARTMENTS, 2ND FLOOR,
6TH CROSS, MATHRU LAYOUT
YELAHANKA NEW TOWN
BENGALURU - 560 001.
2. UNIVERSITY OF AGRICULTURE SCIENCES
R/BY ITS REGISTRAR
KRISHNANAGAR,
DHARWAD - 580 001.
3. VICE-CHANCELLOR/CHAIRMAN OF
SELECTION COMMITTEE
UNIVERSITY OF AGRICULTURE SCIENCE,
DHARWAD - 580 001.
4. STATE OF KARNATAKA
R/BY ADDITIONAL CHIEF SECRETARY
DEPARTMENT OF AGRICULTURE
VIDHANA SOUDHA,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI. THARANATH POOJARY, SR. COUNSEL FOR
SRI. MANJUNATH Y. SHIRURU, ADVOCATE FOR R1;
SRI. J.M. GANGADHAR, AAG FOR R4;
SRI. RAMACHANDRA MALI, ADVOCATE FOR R2 & R3)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO CALL FOR THE RELEVANT RECORDS
AND SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE MADE
IN W P NO.104330/2023 DATED 16/08/2023 AND CONSEQUENTLY
DISMISSES THE WRIT PETITION AS DEVOID OF MERITS, IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE WRIT APPEALS PERTAINING TO DHARWAD BENCH
HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
21.12.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THROUGH VIDEO CONFERENCING AT PRINCIPAL BENCH BENGALURU
THIS DAY, S.SUNIL DUTT YADAV J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:4921-DB
WA No. 100522 of 2023
C/W WA No. 100589 of 2023
JUDGMENT
Writ Appeal No.100522/2023 filed by University of Agricultural Sciences, Dharwad (for brevity 'U.A.S.'), calling in question the correctness of the order passed in Writ Petition No.104330/2023, and W.A. No. 100589/2023 filed by Dr. D. Nagaraj, whose selection has been set aside by virtue of the impugned order, are taken up together and disposed off by a common judgment, as the order of learned Single Judge impugned in both the Writ petitions is the same.
2. The parties are referred to by their rank before the learned Single Judge for the purpose of convenience.
3. The petitioner had called in question the correctness of the Notification dated 12.07.2023, whereby, the respondent University (U.A.S.) had announced the selection list of backlog posts of Teachers declaring the respondent No.4 as selected for the post of Assistant Professor of Food Engineering under the 'backlog reserved -5- NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 category of Scheduled Caste'. The petitioner had also sought for issuance of writ of mandamus to direct the respondent University to consider selection for the post of Assistant Professor in terms of the Notification dated 03.03.2023 in accordance with the Score Card Method in terms of the Notification dated 13.12.2007 of U.A.S., Dharwad.
4. The U.A.S., by Notification dated 03.03.2023 had sought to recruit Teaching Staff under the backlog vacancy in U.A.S., Dharwad and the selection for the post of Assistant Professor under the category of Scheduled Caste was a subject matter of dispute before the learned Single Judge.
5. Admittedly, the Notification of U.A.S. dated 03.03.2023 specified that, "The procedure for selection of candidates for the backlog posts shall be in accordance with the Karnataka State Civil Services (unfilled vacancies reserved for the persons belonging to the Scheduled -6- NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 Castes and Scheduled Tribes) (Special Recruitment) Rules, 2001, notified by Government of Karnataka vide No.DPAR 13 SBC 2001, dated 21.11.2001 and 01.06.2002.."
6. The qualification was prescribed and instruction by way of Guidelines were stipulated which provided for the procedure of selection to be in accordance with the Karnataka State Civil Services (unfilled vacancies reserved for the persons belonging to the Scheduled Castes and Scheduled Tribes) (Special Recruitment) Rules, 2001, [for brevity, 'Special Recruitment Rules, 2001'] (Instruction No.5), while the qualification prescribed for the post of Teacher was in accordance with U.A.S. Notification dated 13.03.2013 (Instruction No.6).
7. The selection process took note of the marks in the qualifying examination, which was the relevant criteria in terms of Special Recruitment Rules, 2001 and accordingly, declared respondent No.4 as successful candidate.
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8. The petitioner has challenged the said selection on the primary ground that the Score Card Method of Evaluation as prescribed by the University Grants Commission Regulation, 2018, ('for brevity, UGC Regulations), which regulations were specifically adopted by U.A.S. had not been adhered to.
9. The learned Single Judge, by the impugned order dated 16.08.2023 had set aside the selection process and re-directed the U.A.S. to redo the selection process taking note of the observations made in the course of the order.
Further, the learned Single Judge referred to Instruction No.6 of the Instructions in the selection Notification dated 03.03.2023 which provided that the qualification prescribed for the post in question was in accordance with U.A.S. Notification dated 13.03.2013, which in turn had referred to the adopting of UGC/ICAR Regulations relating to the recruitment of Teachers. By -8- NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 relying on the said Notification adopting the UGC Regulations, the learned Single Judge has referred to Annexure-I of the Notification, which provides minimum qualification for appointment. The learned Single Judge has held that the selection process ought to be by following the Score Card Method of evaluation.
10. The learned Single Judge has also referred to the format in the application form which contemplates selection by following the Score Card Method. It was specifically held that selection by Special Recruitment Rules, 2001 relying solely on merit in the qualifying examination was impermissible and the Guidelines of UGC cannot be bypassed and accordingly, it has been held, that the evaluation process was faulty.
11. Insofar as the contention that the petitioner was estopped from challenging the selection procedure after having participated in the selection process, the Court has referred to the decision of the Apex Court in Dr. -9- NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 (Major) Meeta Sahai v. Sate of Bihar1 [Meeta Sahai], to observe that the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. It was held that the illegality in not following the UGC Guidelines could not be waived.
12. To avoid repetition and for the purpose of brevity, the contentions of parties are referred to and dealt with in the analysis and the reasoning portion of the order.
13. The notification of recruitment dated 03.03.2023 provides that the selection of candidates for backlog posts shall be in accordance with the Special Recruitment Rules, 2001. The Special Recruitment Rules, 2001 provides for mode of recruitment under 5(1) which reads as follows:-
"5.Mode of Recruitment.-(1) Notwithstanding anything to the contrary contained in the Karnataka Civil Service (General Recruitment) Rules, 1977 or the Rules of Recruitment specially made for 1 (2019) 20 SCC 17
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 recruitment to any service or post, recruitment under these Rules shall be made by the selecting authority."
14. The selection procedure is provided under Rule 6(1) of Special Recruitment Rules, 2001, which reads as follows:-
"6. List of Selected Candidates:- (1) The Selecting Authority shall, from among the candidates who have applied in pursuance to the publication inviting applications under rule 5 and who have attained the age of 29 years but not attained the age of 40 years, prepare a list of Candidates for each category of posts in the order of merit on the basis of percentage of total marks secured in the qualifying examination and taking into consideration the reservation for women, ex- servicemen, physically handicapped and project displaced persons in accordance with the Karnataka Civil Services (General Recruitment) Rules, 1977 and the rural candidates in accordance with the Karnataka Reservation of Appointments or posts (in the Civil Services of the State for Rural Candidates) Act, 2000...."
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15. In terms of Rule 1(3) of Special Recruitment Rules, 2001, it is clear that the recruitment insofar as unfilled vacancies, shall be only in terms of the Special Rules notwithstanding anything to the contrary contained in the Rules of Recruitment made under the Karnataka State Civil Services Act, 19772. In terms of Rule 2(d), the unfilled vacancies refers to the backlog vacancies that are not filled up by persons belonging to Scheduled Castes/Scheduled Tribes.
16. It is accordingly clear that in terms of U.A.S. Notification dated 03.03.2023, recruitment was to be in terms of Special Recruitment Rules, 2001, which provides for process of recruitment and procedure for selection in terms of filling up of backlog vacancy of Reserved Categories which was required to be followed notwithstanding any inconsistency with General Rules of Recruitment under the Karnataka State Civil Services Act, 2 Rule 1(3).- Notwithstanding anything to the contrary contained in the rules of recruitment specially made in respect of any service or post or any other rules made or deemed to have been made under the Karnataka State Civil Services Act, 1978 (Karnataka Act, 14 of 1990), the provisions of these rules shall apply for the purpose of filling up the unfilled vacancies existing on the date of commencement of these rules.
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 1977. In terms of Rule-6, the selection would be in the order of merit on the basis of percentage of marks scored in the qualifying examination.
17. The Instructions in U.A.S. recruitment notification dated 03.03.2023 at Sl.Nos.5 and 6 reads as follows:-
"5. The procedure for selection of candidates for the posts shall be in accordance with the Karnataka Civil Services (unfilled vacancies reserved for the persons belonging to Scheduled Castes and the Scheduled Tribes) (Special Recruitment) Rules, 2001 notified by GOK vide No.DPAR 13 SBC 2001, dated 21.11.2001 and 01.06.2002.
6. The qualifications prescribed for the posts of teachers are in accordance with the University Notification No.R/Rectt/CAS-2006/B- 13/2013 dated 13.03.2013."
Instruction No.6 also provides only for the qualifications prescribed in terms of the Notification of U.A.S. dated 13.03.2013, while Instruction No.5
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 provides for procedure for selection in accordance with the Special Recruitment Rules, 2001. The Instruction No.6 cannot overrule the stipulation in the main Notification which provides for procedure for selection being in terms of the Special Recruitment Rules, 2001.
18. Accordingly, in terms of Instruction No.5, when the procedure for selection would be in accordance with the Special Recruitment Rules, 2001, the qualifications are required to be in accordance with the U.A.S. Notification dated 13.03.2013.
19. The Notification of U.A.S. dated 13.03.2013 provides for adopting of regulations of UGC insofar as recruitment and promotion of teachers by the U.A.S. and in terms of Annexure-I of the said Notification, there is a reference to Regulations governing recruitment and promotion of teachers, librarians and equivalent cadres in the University which specifically refers to the UGC Regulations dated 30.06.2010 and
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 gazetted on 18.09.20103. The UAS has adopted UGC Regulations of 2010 and the Recruitment Notification dated 03.03.2023 follows the qualifications as per UGC Regulations 2010. The qualification for the purpose of direct recruitment to the post of Assistant Professor as provided by UGC Regulations 2010 adopted by the U.A.S. compared with the recruitment notification dated 03.03.2023, reads as follows:-
Notification Qualifications as per UGC No.R/Rectt/Advt.61/2023 Regulations 2010 dated 03.03.2023 (U.A.S. Recruitment Notification)
4. Direct Recruitment Qualifications Teaching Post:-
4.4.0 - Assistant Professor 3. Assistant Professor Cadre:-
i. Good academic record as i. Good academic record with defined by the concerned University atleast 55% or its equivalent with atleast 55% marks (or an at Masters Degree level in a equivalent Grade in a point scale relevant subject from a wherever grading system is recognised University. followed) at the Master's Degree level in a relevant subject from an 3 UGC Regulations on Minimum Qualifications for appointment of Teachers and Other Academic Staff in Universities and Colleges and measures for the maintenance of standards in the Higher Education, 2010.
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 Indian University, or an equivalent Degree from an accredited Foreign University.
ii. Besides fulfilling the above ii. Besides fulfilling the above qualifications, the candidate must qualifications, the candidate have cleared the National Eligibility must have cleared the Test (NET) conducted by the UGC, National Eligibility Test (NET) CSIR or similar Test accredited by conducted by the UGC, CSIR, the UGC like SLET/SET. ICAR or similar Test accredited by the UGC like SLET/SET.] iii. Notwithstanding anything iii. NET is compulsory along contained in sub-clauses (i) and (ii) with one publication in NAAS to this clause 4.4.1, candidates, (National Academy of who are, or have been awarded Agricultural Sciences, New Ph.D. Degree in accordance with Delhi) rated refereed journal the University Grants Commission for recruitment to the post of (Minimum Standards and Procedure Assistant Professor and for award of Ph.D. Degree) equivalent in the disciplines in Regulations, 2009, shall be which NET is conducted. exempted from the recruitment of Essentiality of NET can be the minimum eligibility condition of waived-off for the candidates NET/SLET/SET for recruitment and holding Ph.D. degree appointment of Assistant Professor provided it has been done or equivalent positions in with course work as Universities/Colleges/Institutions. 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 / a minimum of 4 full length papers in NAAS rated SAU journals, on the last date
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 of submission of application.
Those candidates with Ph.D. degree without course work will not qualify for NET exemption.
iv. NET/SLET/SET shall also not be iv. NET/SLET/SET shall not required for such Masters be required for such Masters Programmes in disciplines for which Programmes in disciplines for NET/SLET/SET is not conducted. which NET/SLET/SET is not conducted.
20. Accordingly, in the UGC Regulations 2010, which is adopted by the U.A.S. vide Notification dated 13.03.2013, the minimum qualifications does not prescribe Score Card Method. In fact, upon perusal of UGC Regulations 2010 itself would indicate that Score Card Method is a part of selection procedure and does not constitute as a qualification. It is to be noticed that selection procedure at Point 2.3 of Annexure-I of U.A.S. Notification dated 13.03.2013, whereby, UGC Regulations are adopted, provides for evaluation by Score Card Method. Clearly, the qualification provided under Point 2.1 and selection procedure at Point 2.3 are distinct. Further, Annexure-I to the U.A.S. Notification
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 dated 13.03.2013, refers to the adoption of the UGC Regulations for recruitment in general and not in reference to the filling up of backlog posts.
21. The U.A.S. Recruitment Notification dated 03.03.2023, clearly provides for applicability of Special Recruitment Rules, 2001 insofar as selection of candidates for filling up of backlog vacancy, while for the purpose of qualification, UGC Regulations 2010 are referred to.
22. From the comparative tables noticed above, the minimum qualifications prescribed in the UGC Regulations 2010 have been adhered to in the U.A.S. Notification dated 03.03.2023. Accordingly, insofar as selection procedure in terms of the Special Rules, evaluation would be in terms of qualifying marks (Rule 6) and qualification would be in terms of UGC Regulations 2010 which have not been deviated from.
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23. The learned Single Judge has specifically addressed the point regarding the requirement of adopting Score Card Method by the U.A.S. for evaluation and found that UGC Regulations are required to be adhered to in the selection process as also the Score Card Method. The Court has referred to the format of application to conclude that the UGC Regulations having the Score Card Method of evaluation is a part of the recruitment process. It was further concluded that stopping at evaluation by way of qualifying marks would not be consistent with the spirit of UGC Regulations but would be contrary to the same.
24. However, the learned Single Judge grossly erred in not noticing the distinction between qualification and selection. There is absolutely no doubt that the qualification is as per UGC Regulations and there is no relaxation relating to the same, while selection is a matter solely to be governed by the Special Recruitment Rules, 2001.
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25. Insofar as the observation of the learned Single Judge that the application form itself appears to indicate that the evaluation other than by qualifying marks is contemplated, it is to be observed that once selection is stipulated to be in terms of Special Recruitment Rules, 2001, the information that may have been gathered on aspects other than qualifying marks is to be treated as mere information collected with no further implication and cannot have the consequence of altering the applicability of the Special Recruitment Rules, 2001. Once the Notification specifically refers to selection in terms of Special Recruitment Rules, 2001 and there is no specific mandate in the main body of the Notification relating to evaluation by Score Card Method, the information sought for which relates to other than qualification cannot be made use of to enlarge the scope of selection beyond what is provided for under the Special Recruitment Rules, 2001.
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26. The learned Single Judge has also failed to note that the petitioner not having challenged Special Recruitment Rules, 2001, cannot by way of an interpretation seek for overcoming of procedure under Rule 6 of Special Recruitment Rules, 2001. The learned Single Judge has not noticed that the present case is one relating to filling up of posts as regards backlog vacancies.
27. Insofar as the contention that the petitioner is not estopped from challenging the illegality in procedure and that he has only accepted the lawful aspects of the notifications and is entitled to challenge illegalities of such notifications, the said aspect requires consideration.
28. It must be noticed that the notification of UAS dated 03.03.2023 clearly refers to selection procedure to be in terms of Special Recruitment Rules, 2001. This aspect has been reiterated in the Instruction No.5. It is only the aspect of qualification which as per the U.A.S.
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 Notification dated 13.03.2013 refers back to the applicable UGC Regulations. If that were to be so, once the minimum qualification as per UGC Regulations has been adhered to, in the absence of any challenge to the Special Recruitment Rules, 2001, the petitioner having participated in the recruitment process as per the procedure stipulated in the Recruitment Notification of 03.03.2023, cannot turn around after the results are announced and challenge the very notification. It is not demonstrated that as regards minimum qualification stipulated are contrary to the standards stipulated by UGC Regulations 2010 or provided under law.
29. It is relevant to note that the Apex Court has authoritatively declared that having participated in a selection process willingly without any protest, it would not be open to an unsuccessful candidate to challenge the selection criteria subsequently4. The Apex Court in 4 Similar view is taken by the Apex Court in Manish Kumar Shahi v. State of Bihar - (2010) 12 SCC 576; Tajvir Singh Sodhi v State of Jammu and Kashmir - (2023) SCC OnLine SC 344
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 Ramesh Chandra Shah v. Anil Joshi5 has observed as follows: -
"17. Those who were desirous of competing for the post of Physiotherapist, which is a Group 'C' post in the State of Uttarakhand must have, after reading the advertisement, become aware of the fact that by virtue of the Office Memorandum dated 3-8-2010, the Board has been designated as the recruiting agency and the selection will be made in accordance with the provisions of the General Rules. They appeared in the written test knowing that they will have to pass the examination enumerated in Para 11 of the advertisement. If they had cleared the test, the private respondents would not have raised any objection to the selection procedure or the methodology adopted by the Board. They made a grievance only after they found that their names do not figure in the list of successful candidates. In other words, they took a chance to be selected in the test conducted by the Board on the basis of the advertisement issued in November 2011. This conduct of the private respondents clearly disentitles them from seeking relief under Article 226 of the Constitution. To put it differently, by having appeared in the written test and taken a chance to be declared 5 (2013) 11 SCC 309
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 successful, the private respondents will be deemed to have waived their right to challenge the advertisement and the procedure of selection.
18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.
20. In G. Sarana v. University of Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S) 474] , this Court held that the appellant who knew about the composition of the Selection Committee and took a chance to be selected cannot, thereafter, question the constitution of the Committee.
21. In Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644] , a three-Judge Bench ruled that when the petitioner appeared in the examination without protest, he was not entitled to challenge the result of the examination. The same view was reiterated in Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] in the following words: (SCC p. 493, para 9) "9. ... The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only 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 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 Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644] it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
23. The doctrine of waiver was also invoked in Vijendra Kumar Verma v. Public Service
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 Commission [(2011) 1 SCC 150 : (2011) 1 SCC (L&S) 21] and it was held: (SCC p. 156, para 24) "24. When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction."
24. In view of the propositions laid down in the abovenoted 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 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."
30. Having held that there is no relaxation in the minimum qualification, we find no inconsistency between the standards prescribed regarding the minimum qualification in the recruitment notification with that of UGC Notification. If that were to be so, no occasion arises to decide as to whether the UGC Regulations supersede the Special Recruitment Rules, 2001. Accordingly, the question of invoking the
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 principle of Meeta Sahai's case (supra) does not arise.
31. The Division Bench of this Court in Dr. Phaniraja KL v. Karnataka Veterinary Animal and Fisheries Science University, disposing of Writ Appeal No.3035/2019 and connected matters, has upheld the pre-eminence of Special Recruitment Rules of 2001, vis-à-vis executive order of 09.05.2005 which was contrary to provisions of Special Recruitment Rules of 2001 while observing that Rule 3 of Special Recruitment Rules, 2001 has statutory force. This would further bolster the contention of respondent No.4 that recruitment of backlog posts relating to SC/ST is governed by the Special Recruitment Rules, 2001.
32. The question of even entering upon a discussion as to whether the permission of University Grants Commission ought to have been sought for relaxing the minimum standards would not arise in light
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 of the finding that there is no such relaxation in light of the qualification prescribed in the recruitment notification.
33. The respondent No.1 to support his contentions has relied on the judgments of the Apex Court in Dr. Preeti Srivastava and Another v. State of M.P. and Others6, wherein the Apex Court has dealt with the issue as to whether the State can prescribe a lower minimum standards in form of reducing qualifying marks for the reserved category candidates as compared to general category candidates for admission to Postgraduate Degree/Diploma Courses in Medicine. However, in the present case on hand the issue is as regards recruitment under backlog reserved vacancy, wherein the minimum standards as prescribed by Central Statute i.e., UGC has been followed and as observed supra at paras-22 and 24, only the selection procedure for backlog reserved vacancy 6 (1999) 7 SCC 120
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 as provided for under the Special Recruitment Rules, 2001 has been followed.
Further, even the judgment in University of Delhi v. Raj Singh and others7, has no relevance, as the present case on hand deals with recruitment of backlog reserved vacancy and in case of filling up of posts to such backlog reserved vacancy, selection procedure is as per the Special Recruitment Rules, 2001.
In N.T. Devin Katti and Others v. Karanataka Public Service Commission and Others8, the Apex Court has laid down that the selection to a post shall be in accordance with the existing/prevailing Rules at the time of advertisement. In the present case, it is not contested that there has been a deviation from what was prescribed in the advertisement. The selection procedure is in accordance with the advertisement wherein, it was specifically mentioned that selection of candidates shall be 7 1994 Supp (3) SCC 516 8 (1990) 3 SCC 157
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NC: 2024:KHC-D:4921-DB WA No. 100522 of 2023 C/W WA No. 100589 of 2023 in accordance with Special Recruitment Rules, 2001 (see supra para 25). Also, as observed supra at para-28, no challenge has been made to the Special Recruitment Rules, 2001.
34. Accordingly, the order of learned Single Judge dated 16.08.2023 passed in W.P.No.104330/2023 is set aside and Writ Appeals are allowed.
Sd/-
JUDGE Sd/-
JUDGE VGR