Karnataka High Court
Dr.Savitri W/O Siddanagaouda Patil vs Vice Chancellor And Anr on 30 January, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
W.P.NO.200174/2018 (S-RES)
BETWEEN:
DR.SAVITRI W/O SIDDANAGAOUDA PATIL
AGED ABOUT 35 YEARS
OCC: ASSISTANT PROFESSOR
R/O H.NO.2-907/118/39,
BEHIND RTO SAI NAGAR
KALABURAGI-585105. .... PETITIONER
(BY SMT HEMA L.K., & SRI MANJUNATH S.G.,
ADVOCATES)
AND:
1. VICE CHANCELLOR
UNIVERSITY OF AGRICULTURAL SCIENCE
RAICHUR-584101
2. THE REGISTRAR AND MEMBER
SECRETARY BOARD OF MANAGEMENT
UNIVERSITY OF AGRICULTURAL SCIENCE
RAICHUR-584101
3. PRASANNA KUMAR
S/O SHIVASHARNAPPA
AGE: 39 YEARS, OCC: ASST. PROFESSOR,
UNIVERSITY OF AGRICULTURAL SCIENCE
RAICHUR, R/O RAICHUR-584101 ... RESPONDENTS
(BY SRI AMRESH S. ROJA, ADVOCATE FOR R1 & R2;
SRI MAHESH PATIL, ADVOCATE FOR R3)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF CERTIORARI QUASHING THE IMPUGNED SELECTION
LIST AS PER ANNEXURE-H DATED 28.11.2017 PASSED BY
RESPONDENT'S UNIVERSITY AND ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is assailing the Annexure-H, dated 29.08.2017 issued by the second respondent. Annexure-H is the proceedings of the 32nd meeting of the Board of Management of University of Agriculture Sciences Raichur, held on 28.09.2017. In terms of the said Annexure-H, the third respondent and one more person are selected as Assistant Professors. The prayer in writ petition is to quash entire Annexure-H. From the grounds raised in the writ petition it is apparent that the grievance of the petitioner is relating to the appointment of third respondent - Prasanna Kumar. Hence, the order is only confined to validity of appointment of Prasanna Kumar, as the Assistant Professor of Physical Education.
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2. The petitioner is also seeking writ of mandamus directing the respondents No.1 and 2 to appoint the petitioner to the post of Assistant Professor of Physical Education, University of Agriculture Sciences.
3. Heard Smt. Hema. L.K. the learned counsel for the petitioner, Sri. Amaresh S. Roja, the learned counsel for the respondents No.1 and 2 and Sri. Mahesh Patil, the learned counsel for the respondent No.3, whose appoint under challenge.
4. Certain admitted facts are as under:-
The University of Agriculture Science invited applications for the post of Assistant Professor in Physical Education and also some other discipline. The first application was published on 26.02.2014. As per the said notification the last date to file application was on 15.04.2014. However, the University came out with one more notification, which was published on 09.01.2016 and last date to file application was 08.02.2016. However, the 4 recruitment did not take place as per the first and second notification, as such there was one more notification published on 11.04.2016 and last date to file application was on 10.05.2016. The petitioner did apply to the post of Assistant Professor in Physical Education pursuant to the second notification itself. The qualification prescribed for the said post in terms of the said notification reads as under:-
24. Assistant Professor of Physical Education:
"i. Good Academic record with at least 55% the marks at the Master's Degree level in Physical Education from a recognized Indian University, or an equivalent Degree from a Foreign University.
ii. Candidates should have cleared the National Eligibility Test (NET) in Physical Education for Assistant Professor post conducted by the ASRB/UGC/CSIR or a similar test accredited by the ICAR/ICMR/NCERT/UGC/CSIR i.e., (a) For Agriculture/Animal/Husbandry/Veterinary/Fishe ries disciplines, ASRB/ICAR NET in the 5 concerned subject is prescribed (b) For Humanities, Languages, etc., UGC NET is prescribed and (c) For Pure Sciences, CSIR NET is prescribed.
iii. Ph.D. is desirable.
5. Admittedly, the petitioner did not possess Ph.D. qualification as on the date of first notification. As noted earlier the recruitment did not take place earlier pursuant to the first notification. As such there was one more notification dated 09.01.2016. The petitioner had applied pursuant to the notification dated 09.01.2016. The petitioner made a claim that she had completed the Ph.D. by the time she applied for the second time.
6. The application submitted by the petitioner pursuant to the second notification is at Annexure-A. In the said application the petitioner has claimed that she is awarded Ph.D. on 11.12.2005. In the application dated 09.02.2016 in Para No.29 the petitioner also made a statement that no objection certificate from the parent 6 institution would be submitted at the time of interview. This would indicate that the petitioner was working elsewhere when she applied for this post.
7. The third respondent also applied for the same post pursuant to second notification dated 09.01.2016.
8. The notification issued by the University prescribed that in case the candidate possessed the Ph.D., then there is no need to clear either NET or SET. There is no dispute over this aspect. It is also forthcoming from the records that pursuant to the second and third notification, the University has made it clear that those who have applied under the first notification, can furnish additional documents pertaining to additional qualifications which they have acquired post first notification. The petitioner was invited for the interview so also the third respondent. The petitioner submitted a notification dated 30.12.2015 issued by the Registrar of Evaluation of Karnataka State Women University, Vijayapura, wherein it is notified that the petitioner is declared qualified for the decree of Doctor 7 of Philosophy, pursuant to the decision taken by the Vide- Chancellor of University on behalf of Syndicate. The certificate also speaks to the effect that the board of examiners have recommended for the award of Doctor of Philosophy with course work, as per Ph.D. Regulations 2009.
9. The notification dated 30.12.2015 was enclosed along with the application filed by the petitioner seeking appointment. The second respondent took a decision not to award marks for Ph.D., on the premise that the petitioner had not produced the certificate in proof of her Ph.D. Decree while applying. Consequently, the third respondent who had produced the Ph.D., certificate along with the application for appointment, was selected. The petitioner was awarded 38.33 marks. The third respondent was awarded 44.47 marks. The petitioner was not given any marks for her claim as a Ph.D. certificate holder, whereas the third respondent was awarded 08 marks out of 10 maximum marks that can be awarded for possessing 8 a certificate in Ph.D. Consequently, the third respondent was appointed. The petitioner has called in question this appointment in favour of the third respondent.
10. Smt. Hema L.K. the learned counsel for the petitioner would submit that notification dated 30.12.2015 at Annexure-F is valid proof that the petitioner has completed the Ph.D. The petitioner completed Ph.D., on 30.12.2015, as on 09.01.2016 when she applied for the post. The respondent - university was in error in not awarding in any marks to the petitioner treating her as the person who is not having Ph.D. certificate. She would also submit that the in the interview held on 20.08.2017, the petitioner submitted the certificate dated 04.03.2016 issued by the University, which in turn declared that the petitioner was awarded the Ph.D. in December - 2015. The respondent No.2 was in error in not accepting the said certificate on the premise that the said certificate was not enclosed when the application was filed for the post of Assistant Professor in Physical Education. 9
11. The learned counsel Sri Amresh S. Roja appearing for the respondents No.1 and 2 would submit that the petitioner was interviewed as per the guidelines and stipulations contained in the notification inviting the applications. The notification clearly specified that all the certificates prescribed have to be enclosed along with the application and he would refer to Clause 4 of the condition of the notification inviting the application. The Clause 4 of the condition would read as under :-
"Certificates for the required qualifications must have been obtained from the competent authority on or before the last date of submission of the application."
12. Referring to this condition, learned counsel for the respondents No.1 and 2 would submit that as on the date of filing of application i.e., 09.02.2016, the petitioner did not possess the certificate of completion of her Ph.D. course, as such she is not eligible for consideration and her claim has been rightly rejected.
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13. Learned counsel for the respondents No.1 and 2, Sri Amresh S.Roja would place reliance on the judgment of the Hon'ble Apex Court in the case of Karnataka State Seeds Development Corporation vs. Smt.H.L.Kaveri.
14. Learned counsel for the third respondents would submit in addition to the contentions raised by the learned counsel for respondents No.1 and 2 that the petitioner has not filed the application as prescribed. The petitioner did not produce 'no objection certificate' at the time of filing the application nor she filed any application for having moved the application through proper channel requesting 'no objection certificate'.
15. It is also the contention of the learned counsel for the third respondent that the production of necessary certificate prescribed under the notification as on the date of application is a must for considering the candidature of the applicant who applies for a particular post. If a person does not hold the necessary certificate as on the date of 11 application then that person is not eligible for the eligible for selection.
16. Learned counsel for respondent No.3 would place reliance on the judgment of the Hon'ble Apex Court in the case of State of Bihar and others vs. Madhu Kant Ranjan another in Civil Appeal No.7677/2021 and also the judgment in the case of Mrs.Rekah Chaturvedi vs. University of Rajasthan and others (1993 SCR (1)
186. He would also place reliance on the judgment of the Hon'ble Apex Court in the case of Roshni Devi, Shravan Kumar etc. vs. State of Haryana to put forth his alternative submission that in the event of the court coming to the conclusion that the petitioner was more qualified and suitable than the third respondent then also the third respondent cannot be disturbed from his position given the fact that he has spent six years serving as the Assistant Professor in physical education. It is also his submission that the third respondent has successfully completed his probation as such he cannot be disturbed. 12
17. This court has considered the contentions raised at the bar and also perused the judgments cited.
18. Under service jurisprudence when a person applies for a particular post his eligibility to the particular post has to be considered with reference to the qualifications he possessed, as on the date of publication of notification. A person who claims to be eligible to be appointed pursuant to a notification inviting the application to a particular post, must possess a necessary qualifications prescribed to apply for the post. If notification mandates that necessary documents are to be submitted along with the application, the applicant must produce all those documents along with the application.
19. In this case the petitioner claims that she did possess necessary qualification of Ph.D., when she applied on 09.02.2016 and she did possess the necessary certificate to show that she had completed Ph.D.
20. The contention of the learned counsel for the petitioner is that notification dated 30.12.2015 is the 13 notification issued by the Registrar Evaluation of the University and this notification is issued pursuant to the decision taken by the Vice Chancellor on behalf of Syndicate, where it was decided after evaluation of the thesis submitted, the petitioner should be awarded Ph.D., and the petitioner is qualified for award of Ph.D.
21. Learned counsel for the respondents on the other hand would submit that notification is not the proof of completion of the thesis and award of Ph.D,. It is to be followed by a certificate under Regulation No.20 of 2009 Regulations. This court has considered the Regulations 19 and 20 of 2009, Regulations which read as under -
"19. Following the successful completion of the evaluation process and announcements of the award of M.Phil/Ph.D, the University shall submit a soft copy of the M.Phil/Ph.D thesis to the UGC within a period of thirty days, for hosting the same in NEFLIBNET, accessible to all Institutions /Universities.14
20. Along with the Degree, the Degree awarding University, Institution Deemed to be University, College/Institution on National Importance, as the case may be, shall issue a Provisional Certificate certifying to the effect that the Degree has been awarded in accordance with the provisions to these Regulations of the UGC."
22. On reading of Regulation 19, it is apparent that on successful completion of evaluation process and announcements of the award of M.Phil/Ph.D, the University shall submit a soft copy of M.Phil/Ph.D thesis to the UGC within thirty days for hosting the same on INFLIBENT, accessible to all Institutions/Universities. The Regulation 20 provides for issuance of a provisional certificate.
23. The court has to consider whether this notification dated 30.12.2015 is a proof relating to the completion of Ph.D. by the petitioner. The relevant portion of the notification reads as under :- 15
"The Vice Chancellor of this University on behalf of the Syndicate has accepted the thesis based on the recommendation of the Board of Examiners for the award of Doctor of Philosophy with course work as per Ph.D. regulations 2009 to the following candidate in the subject and faculty as shown below. She is accordingly declared qualified for the award of degree of Doctor of Philosophy.
The name of the candidate : Smt.Savitri Siddangouda Patil."
And further particulars relating to guide, subject and title of the thesis are also provided in the said certificate.
24. From the said certificate, it is apparent that the decision to award Ph.D. is taken by Board of Examiners and the Syndicate. The Vice Chancellor based on the decision referred above has directed the Registrar Evaluation to notify the decision taken by the Vice Chancellor on behalf of Syndicate.
25. The relevant sentence in the said notification is as under:-
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"She is accordingly declared qualified for the award of Degree of Doctor of Philosophy."
26. To a pointed question by this court as to whether any provision of the Regulation 2009 or any of the provisions applicable to the University would enable any authority under the University to nullify this notification dated 30.12.2015.
27. The learned counsel for the respondents would submit that there is no other provision in the Regulation 2009 or any other provision governing the University to recall the notification dated 30.12.2015. Under the circumstances, this court is of the view that the notification dated 30.12.2015 is conclusive proof of the fact that the person notified in the said notification has completed Ph.D.
28. Issuance of a certificate during convocation is a procedural formality and the award of Degree of Ph.D. is not dependent on this procedural formality. The decision is taken by the Syndicate pursuant to the evaluation by the 17 Board of Examiners. In the case of the petitioner, the decision of the Board of Examiners is ordered to be notified by the Vice Chancellor, representing the Syndicate. Pursuant to the decision of the Vice Chancellor, the notification is published. This notification from its contents speaks that the petitioner is declared qualified for the award of degree of Doctor of Philosophy. Thus, the notification dated 30.12.2015 is a conclusive proof of the fact that the person has completed Ph.D.
29. For this reason this court is of view that the petitioner having enclosed the notification dated 30.12.2015, has complied the requirement that applicant should produce the necessary certificates in proof of qualification prescribed for the post. In this view of the matter, the second respondent is not justified in not awarding any marks to the present petitioner.
30. The learned counsel for respondents No.1 and 2 has placed reliance on the judgment of the Hon'ble Apex Court in the case of Karnataka State Seeds 18 Development Corporation Limited and anohter vs. Smt.H.L.Kaveri and others. Referring to paragraph 14, it is stated that, unless the certificates are enclosed along with the application, as required in the advertisement inviting applications, the claim of the applicant should not be considered for a particular post.
31. In the aforementioned case, the Supreme Court has taken a view as the first respondent before it, did not produce necessary certificate as required. Since this court has taken a view that the notification dated 30.12.2015, which declared that the petitioner is qualified for the award of degree of Doctor of Philosophy, the notification produced by the petitioner along with the application is proof relating to her qualification. Thus, the ratio laid down in the said case cannot be made applicable here.
32. Learned counsel Sri Mahesh Patil appearing for respondent No.3 has referred to the judgment of the Hon'ble Apex Court in the case of State of Bihar vs. 19 Madhu Kant Ranjan and another. He would refer to paragraph No.9 and he would submit that the necessary NCC 'B' certificate is not enclosed by the candidate in the said case and same was produced three years subsequent to the notification and same was not considered by the Hon'ble Apex Court.
33. Again, since this court has taken a view that notification dated 30.12.2015, is a proof of petitioner's qualification as Ph.D. holder, the ratio laid down in the said case is also not applicable.
34. As far as the ratio laid down in Mrs.Rekha Chaturvedi's case supra, there is no difficulty in accepting the proposition of law which says that the qualification of a candidate has to be considered as on the date of application and not as on the date of interview. In this case, the petitioner does not claim that she acquired requisite qualification as on the date of interview. It is her consistent case that she did possess necessary 20 qualification as on the date of notification and same is established in view of notification dated 30.12.2015.
35. For the aforementioned reasons, this court is of the view that second respondent-University is not justified in rejecting the name of the petitioner she did possess the Ph.D.
36. The next point for consideration is how much marks are to be awarded to the petitioner as she holds Ph.D. qualification. This aspect has to be considered by the respondent-University with reference to the guidelines for allotment of marks as per Annexure-R(2)E. This exercise has to be carried out by the second respondent.
37. The second respondent shall consider the claim of the petitioner as the person with the necessary qualification of Ph.D., and award appropriate marks in accordance with the guidelines at Annexure-R(2)E and thereafter has to pass a fresh order relating to appointment of Assistant Professor in physical education. Consequently, the impugned order of appointment is set- 21 aside. The university shall carryout the said exercise within a period of thirty days from the date of receipt of copy of this order.
38. It is to be noticed that on account of the error committed by the selection committee, the petitioner possibly lost more than four years of her service. Precisely for this reason, the entire exercise of evaluating the petitioner as a holder of Ph.D., has to be considered and appropriate orders thereafter have to be passed strictly within a period of thirty days from the date of receipt of the certified copy of this order.
Accordingly, the writ petition is allowed.
Sd/-
JUDGE KJJ/sn