Karnataka High Court
Dr. Anjaneya vs The University And Anr on 6 June, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 207596 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.207596 OF 2017 (S-RES)
BETWEEN:
DR.ANJANEYA S/O OBLESHA,
AGE :35 YEARS,
OCC: ASST. PROFESSOR
IN BIO CHEMISTRY,
AT LVD COLLEGE, RAICHUR,
R/O C/O KRISHNAVENI, H.NO.C-83,
ANJANAPPA COLONY, YERAMARUS CAMP,
RAICHUR-584135.
...PETITIONER
(BY SRI P.VILAS KUMAR, SENIOR COUNSEL FOR
SRI NITESH PADIYAL, ADVOCATE)
AND:
Digitally signed
by VARSHA N
RASALKAR
1. THE UNIVERSITY OF AGRICULTURAL SCIENCES,
Location: HIGH
COURT OF RAICHUR, THROUGH ITS REGISTRAR,
KARNATAKA
LINGASUGURU ROAD, RAICHUR-584104.
2. KUMARI TRIVENI
AGE: MAJOR, OCC: ASST. PROFESSOR,
IN BIO-CHEMISTRY DEPARTMENT
IN THE UNIVERSITY OF AGRICULTURAL SCIENCES,
R/O RAICHUR-584104.
RESPONDENTS
(BY SRI AMARESH S.ROJA, ADVOCATE FOR R1;
SMT.RATNA N.SHIVAYOGIMATH, ADVOCATE FOR R2)
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WP No. 207596 of 2017
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO ISSUE A WRIT OF
CERTIORARI FOR QUASHING THE ORDER OF APPOINTMENT OF
RESPONDENT NO.2 WHO HAS JOINED THE SERVICE ON
08.09.2017 UNDER THE RESPONDENT NO.1 AS
ASST.PROFESSOR IN BIO-CHEMISTRY AND CONSEQUENTLY
ISSUE A WRIT OF MANDAMUS DIRECTING THE RESPONDENT
NO.1 UNIVERSITY TO APPOINT THE PETITIONER AS
ASST.PROFESSOR IN BIO-CHEMISTRY WITH ALL
CONSEQUENTIAL BENEFITS.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 30.05.2023, COMING ON FOR
'PRONOUNCEMENT OF ORDERS', THIS DAY THE COURT MADE
THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
i. Issue a writ of certiorari for quashing the order of appointment of Respondent No.2 who has joined the service on 08.09.2017 under the Respondent No.1 as Asst. Professor in Bio-chemistry and consequently issue a Writ of Mandamus directing the Respondent No.1 University to appoint the petitioner as Asst. Professor in Bio-Chemistry with all consequential benefits.
ii. Order for any other relief to which the petitioner is found to be entitled to.
2. The petitioner claims to be Ph.D. holder in Bio-Chemistry belonging to Scheduled Caste Community hailing from Hyderabad-Karnataka -3- WP No. 207596 of 2017 region. The respondent No.1 - University of Agricultural Sciences, Raichur had issued notification on 31.12.2012 calling for applications for various posts. Subsequently, due to reservation earmarked under Article 371(j) of the Constitution of India, the notification of the year 2012 came to be withdrawn and a fresh notification came to be issued on 9.01.2016 calling for applications for the same post as that notified in the year 2012.
3. There were certain increases in some of the posts, however, in the notification of 2016 it was indicated that the candidates who had already applied under notification in the year 2012, need not apply once again, but were called upon to note the changes in disciplines, number of posts, etc and submit the additional documents in respect of their claim on or before the last date of receipt of applications being 8.2.2016.
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4. The petitioner having applied under the notification of the year 2012, his application was processed under the notification of year 2016, petitioner secured 44.70 marks and was placed at 6th rank for the aforesaid post and came to be recommended for the said post by the Selection Committee in its undated report at Annexure-N.
5. Respondent No.2 who had secured 34.36 marks and was placed at 9th rank was selected for the post though she had not been recommended for the post and it is aggrieved by the same that the petitioner is before this Court seeking for the aforesaid reliefs.
6. The contention of Sri Vilaskumar, Senior counsel is that:
6.1. The petitioner being more meritorious than respondent No.2 having secured 44.70 marks and placed at 6th rank ought to have been selected for the said post and respondent No.2 -5- WP No. 207596 of 2017 being lower down in merit could not have been selected for the said post.
6.2. The only ground on which the candidature of the petitioner has been rejected is for non-
production of No Objection Certificate [NOC] from Lakshmivenkatesh Desai Degree College (LVD), Raichur, where he was employed post the notification of the year 2012 on 11.05.2015 and as such non production of NOC along with application which had been submitted earlier on 30.1.2013 cannot be held against him inasmuch as the same is a subsequent event, there is no requirement for the petitioner to produce NOC subsequent to the filing of the application.The NOC was required to be produced if and only if the petitioner had been in employment with the government, quasi government or private entity at the time when the application was made. The petitioner not -6- WP No. 207596 of 2017 being in any such employment, the guideline at Sl.No.12 would not apply to the petitioner. The said guideline at Sl.No.12 is reproduced hereunder for easy reference:
"12. Candidates already in service (Government/Quasi Government or Private) should submit their applications through proper channel. Candidates anticipating delay in sending their applications through proper channel may submit an advance copy of the application along with the prescribed fee. The original application duly forwarded by the parent office must reach this office within a fortnight after the last date prescribed for submission of filled-in applications. Such of the candidates who do not forward their applications through the parent office have to produce a No Objection Certificate at the time of interview, failing which they will not be allowed to appear for the interview."
6.3. Learned Senior counsel submits that the identical guideline is now termed as instruction under the notification of the year 2016 at Sl.No.15 thereof. The said instruction at Sl.No.15 is reproduced hereunder for easy reference:
"15. Candidates already in service (Government/Quasi Government or Private) should submit their applications through proper channel.-7- WP No. 207596 of 2017
Candidates anticipating delay in sending their applications through proper channel may submit an advance copy of the application along with the processing fee. The original application duly forwarded by the parent office must reach this office within one month after the last date prescribed for submission of filled in applications. Such of the candidates who do not forward their applications through the parent office have to produce a No Objection Certificate at the time of interview, failing which they will not be allowed to appear for the interview."
6.4. On the basis of the above, he submits that the requirement to submit 'NOC' is only at the time of submission of the application and not otherwise and as such, this requirement now being imposed after submission of the application is not proper.
6.5. Alternatively, he relies upon the decision of the Hon'ble Apex Court in the case of Ganesh Prasad Sah Kesari and another -v- Lakshmi Narayan Gupta1, more particularly para 8 and 9 thereof which are reproduced hereunder for easy reference:
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AIR 1985 SC 964 -8- WP No. 207596 of 2017 "8. Ordinarily the use of the word 'shall' prima facie indicates that the provision is imperative in character. However, by a catena of decisions, it is well-established that the court while considering whether the mere use of the word 'shall' would make the provision imperative, it would ascertain the intendment of the legislature and the consequences flowing from its own construction of the word 'shall'. If the use of the word 'shall' makes the provision imperative, the inevitable consequence that flows from it is that the court would be powerless to grant any relief even where the justice of the case so demands. If the word 'shall' is treated as mandatory the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with its order.
To illustrate, if the tenant while he has on the way to the court on the 15th day to deposit the rent for the just preceding month as directed by an order under Sec. 11A, met with an accident on the road and could not reach the court before the court hours were over, should he be penalised by his defence being struck off. Even if the court is satisfied that he was on the way to the court to make the necessary deposit, that he had the requisite amount with him, and that he started in time to reach the court within the prescribed court hours and yet by circumstances beyond his control, he met with an accident would the -9- WP No. 207596 of 2017 court be powerless to grant him relief? This illustration would suffice to the intendment of the legislature that it never used the word 'shall' to make it so imperative as to render the court powerless.
9. The statute in which the expression is used is The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. It is a statute enacted with a view to providing a fetter on the right of a landlord to evict tenant at his whim or fancy. The long title of the Act shows that it was enacted to regulate the letting of buildings 13 and the rent for such buildings and to prevent unreason able eviction of tenants therefrom in the Province of Bihar. A provision in such a statute primarily enacted for the protection of tenants against unreasonable eviction that the court is required to find out whether the word 'shall' was used as to make the provision mandatory or imperative. Obviously if one ascertains the intendment of the legislature, the purpose for which the provision was enacted, the beneficent nature of the statute and to protect the harassed tenant obviously it does not require long argument to hold that the expression 'shall' was used not with a view to making the provision mandatory or imperative but it was to be directory. Such a construction would advance the purpose for which the Act was enacted namely the protection of tenants. It will also not render the court powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice."
6.6. Placing reliance on the above, his submission is that the word 'shall' would have to be in this
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WP No. 207596 of 2017particular matter be read as 'may'. Usage of the word 'shall' cannot always be referred to as 'shall' but would have to be considered on the basis of the surrounding circumstances and in this matter, the surrounding circumstances indicate that the word 'shall' has to be read as 'may' and the University ought to have considered the instruction at Sl.No.15 to be directory 'may' than mandatory 'shall' requiring the petitioner to submit NOC.
6.7. He submits that the petitioner had written to LVD College, Raichur for the NOC and despite repeated follow-up by the petitioner, LVD College did not issue such NOC and as such the non-production/submission of the NOC is due to no fault on part of the petitioner, if LVD College had furnished it, he would have produced it. 6.8. Lastly he submits that the petitioner having written to the LVD college seeking for the NOC
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WP No. 207596 of 2017and LVD College having replied by issuing a certificate stating that the services of the petitioner was satisfactory, he submits that the certification of the service of the petitioner as 'satisfactory' would be sufficient compliance with the requirement for NOC inasmuch as LVD College having indicated the services of the petitioner to be 'satisfactory'. There was no further NOC which was required to be submitted.
6.9. On all these grounds, he submits that the writ petition is required to be allowed.
7. Per contra, Sri Amaresh S.Roja, learned counsel for respondent No.1 submits that the requirement of submitting the NOC under notification in the year 2012 is reiterated in the notification of 2016 and the requirement of submitting additional documents would include the additional document of NOC to be
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WP No. 207596 of 2017submitted on or before the last date of receipt of the application.
8. Heard Sri Vilaskumar, learned Senior counsel for the petitioner and Sri Amaresh S.Roja, learned counsel for the respondent No.1. Perused papers.
9. The petitioner had applied for the post of Associate Professor in Bio-Chemistry in answer to the notification dated 31.12.2012. The processing of the said application being delayed, the petitioner had applied for and joined the services in LVD College at Raichur on 11.05.2015. Subsequent thereto, the earlier notification of the year 2012 was cancelled and new notification dated 09.01.2016 issued. In terms of the new notification, the applicants under the old notification were not required to re-apply, but were required to submit any additional documents after taking into account the requirements under the 2016 notification.
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WP No. 207596 of 2017
10. Both under 2012 notification and 2016 notification, it is required that if the candidate was employed with a government, quasi government or a private entity, the applications were to be submitted through proper channel and that NOC be obtained and furnished from such employer.
11. Since in the year 2012, the petitioner was not employed, it was not required for the petitioner to submit the application through proper channel nor it was required that a NOC be submitted. As such, the process followed by the petitioner in the year 2012 is proper and correct. However, in the year 2016, when the notification of the year 2012 was cancelled and the earlier applications were to be considered in terms of the notification of the year 2016, the petitioner had joined the services of LVD College at Raichur on 11.05.2015. Thus, the claim of the petitioner being under the notification of the year 2016, it was required that the petitioner follow the
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WP No. 207596 of 2017requirements thereunder. One of the requirement being the submission of NOC which is an additional document which would have to be submitted by the last date stated therein.
12. The additional documents which is contemplated herein, in my considered opinion would include the NOC, since as on that date, the petitioner was employed with LVD College at Raichur. It is for this reason, the petitioner had also written to LVD College requesting for issuance of NOC. If not for the requirement, there was no other reason for the petitioner to write to LVD College requesting for the NOC. The actions on part of the petitioner speaks of the understanding of the petitioner of the requirements under the notification being mandatory rather than directory.
13. Be that as it may, even thereafter when the petitioner was called for an interview vide letter dated 09.08.2017 produced at Annexure-D to the
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WP No. 207596 of 2017petition, he was called upon to produce all the original documents, certificates as also NOC from the present employer and it was further made clear that if such NOC was not produced his candidature would be rejected. The interview being scheduled on 23.08.2017.
14. Thus, it is clear that under the notification of the year 2012 as also in the notification of the year 2016 and in the interview letter dated 09.08.2017, the petitioner was put to notice of the requirement to produce the NOC from the employer, if he was employed. In that background, the submission of Sri P.Vilaskumar, learned Senior counsel for the petitioner that there is no mandatory requirement to produce the NOC and the word 'shall' has to be read as 'may' making it directory cannot be countenanced either in law or on facts. There is no such discretion vested with the university nor can such discretion be vested, the university is required to strictly follow the
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WP No. 207596 of 2017requirements of the notification without any interpretation.
15. As observed above, the conduct of the petitioner itself would indicate that even the petitioner understood the mandatory requirement of production of NOC in pursuance of which, he wrote to LVD college for furnishing the NOC. Though, it is contended that there is no fault on the part of the petitioner and if the LVD College had furnished the NOC, he would have produced it, the same cannot be a ground which could either be considered by the University or by this Court. The obligation is imposed on the candidate to produce the NOC and it is for such candidate to take action as it may be necessary for such production. Merely because the employer did not furnish the NOC, the candidate cannot keep quiet and use that as an excuse. The petitioner as a candidate had enough and sufficient remedies
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WP No. 207596 of 2017available to secure the NOC which the petitioner has not resorted to.
16. In view of the above, it being clear that the NOC was required to be produced and the same not having been produced in terms of the applicable guidelines/instructions, the candidature of the petitioner was rejected, which in my considered opinion is proper and correct and as such the impugned order does not require any interference.
17. No grounds being made out the petition stands dismissed.
Sd/-
JUDGE LN/sn List No.: 1 Sl No.: 73