Karnataka High Court
Dr Kumar S vs The Vice Chancellor on 22 December, 2021
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.14113/2019 (S-RES)
C/W
WRIT PETITION No.6766/2019 (S-RES)
W.P.No.14113/2019
BETWEEN:
DR. NAVEENA K.P.
S/O PUTTASWAMY T
AGED ABOUT 31 YEARS
UNEMPLOYED
R/O KEREGODU, 1ST BLOCK
MANDYA TALUK & DISTRICT
PIN CODE-571446.
...PETITIONER
(BY SRI RAVI VARMA KUMAR, SR.COUNSEL A/W
SMT. G SHARADA BAI &
SRI SIDDARTH BABURAO, ADVs.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BENGALURU-560001.
2. THE KARNATAKA VETERINARY ANIMAL
& FISHERIES UNIVERSITY
2
NANDINAGAR, BIDAR-585401
REP. BY ITS REGISTRAR.
3. DR. NAGARAJU
S/O YELLAPPA
AGED ABOUT 43 YEARS
NOW APPOINTED AS
ASSISTANT PROFESSOR IN
DAIRY ECONOMICS &
BUSINESS MANAGEMENT
DAIRY SCIENCE COLLEGE
HEBBAL, BENGALURU-560 024.
....RESPONDENTS
(BY SMT. M.C.NAGASHREE, AGA FOR R1
SMT. VAISHALI HEGDE, ADV. FOR R2
SRI V.B. VIJAYA KUMAR, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO STRIKING DOWN
THE NOTIFICATION DATED 09.05.2005 (ANNEXURE-G1)
READ WITH NOTIFICATION DATED 01.03.2012 (ANNEXURE-
G2) ISSUED BY R1 IN SO FAR AS IT PRESCRIBED THAT
PRESCRIBE 59 YEARS AS THE UPPER AGE LIMIT FOR
APPOINTMENT OF PROFESSORS, ASSOCIATE PROFESSORS,
ASSISTANT PROFESSORS AND LECTURERS IN THE R2
UNIVERSITY AS ILLEGAL, VOID AND INOPERATIVE AND ETC.
W.P.No.6766/2019
BETWEEN:
DR. KUMAR S
AGED ABOUT 39 YEARS
3
S/O SOMLA NAIK
R/AT NO.1480/19
MADILU, 1ST 'A' CROSS
NEAR BIET COLLEGE
SIDDAVEERAPPA LAYOUT
DAVANAGERE - 577004.
...PETITIONER
(BY SRI MUKKANNAPPA S.B., ADV.)
AND:
1. THE VICE CHANCELLOR
KARNATAKA VETERINARY
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY
NANDINAGAR
BIDAR - 585401.
2. THE REGISTRAR
KARNATAKA VETERINARY
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY
NANDINAGAR
BIDAR - 585401.
3. SRI NAGARAJU Y
AGED ABOUT 40 YEARS
R/AT NO.32, 2ND FLOOR
2ND CROSS, SNEHANAGAR
AMRUTAHALLI MAIN ROAD
BYATARAYANAPURA
BENGALURU - 560092.
....RESPONDENTS
(BY SRI H.N.SHASHIDHARA, ADV. FOR R1 & R2
SRI V.B. VIJAYA KUMAR, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
4
QUASH THE IMPUGNED ORDER DATED 19.01.2019 ISSUED
BY THE R2 VIDE ANNEXURE-G TO THE WRIT PETITION IN SO
FAR AS RELATES TO THE SELECTION AND APPOINTMENT
OF THE R3 UNDER THE FACTS AND CIRCUMSTANCES OF
THIS CASE AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 25/11/2021 THROUGH VIDEO
CONFERENCE COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:
COMMON ORDER
Both the writ petitions are clubbed together, heard and disposed of by this Court common order since common facts and questions are involved.
2. In W.P.No.14113/2019, the petitioner has sought for the following prayers:
(i) Issue a writ, order or direction striking down the Notification J¸ï.qÀ§Äèöå.r 47 J¸ïn¹ 2004 dated 09.05.2005 (Annexure-G1) read with Notification No. J¸ï.qÀ§Äèöå.r 7 J¸ïn¹ 2012 dated 01.03.2012 5 (Annexure-G2) issued by R1 in so far as it prescribes that prescribe 59 years as the upper age limit for appointment of Professors, Associate Professors, Assistant Professors and Lectures in the 2nd respondent University as illegal, void and inoperative.
(ii) Issue a writ, order or direction in the nature of certiorari quashing selection and of the 3rd respondent at Sl.No.15 in Order No. R/85BOM/BLR-T-Appt/Ap/2018-19/5670 dated 19.01.2019 (Annexure A) issued by the 2nd respondent.
(iii) Issue a writ of mandamus directing the second respondent to consider the case of the petitioner for the post of Assistant Professor in Diary Economics & Business Management notified in revised Notification No.KVAFSU/R/Rectt (T)/BLR- 6 (Asst. Prof)/2018-19 dated 17.10.2018 6 (Annexure- C) and to appoint him for the said post forthwith.
In W.P.No.6766/2019, the petitioner has sought for the following prayers:
a) Issue a writ in the nature of certiorari quashing the impugned order bearing No:R/85/BOM/ BLR-5/APPT/AP/2018-19/5670; dated 19-1-2019 issued by the 2nd respondent vide annexure-G to the writ petition in so for as relates to the selection and appointment of the 3rd respondent under the facts and circumstances of this case.
b) Issue a writ in the nature of mandamus directing the respondent university to select the petitioner for the post of Assistant Professor in Dairy Economics and Business Management and issue the appointment order to the petitioner in accordance with law under the facts and circumstances of this case. 7
3. Petitioners and respondent No.3 in both the writ petitions possess qualification of B.Sc. in Agriculture and M.Sc. in Agricultural Economics.
4. The second respondent issued notification dated 17.10.2018 (Annexure-C) inviting applications from the eligible Scheduled Caste/Scheduled Tribe candidates to fill up the backlog posts. The notification specifically stated that it is backlog special recruitment drive at Karnataka Veterinary, Animal and Fisheries Sciences University, Bidar. The petitioners as well as respondent No.3 applied for the post of Assistant Professor in Dairy Economics and Business Management, which was reserved for Scheduled Caste category candidate. The notification also makes it clear that selection of candidates is based on the Government Order bearing No.DPAR 13 SBC 2001 dated 21.11.2001 relating to backlog recruitment and order bearing No.SWD 47 STC 2004 dated 09.05.2005 as well as 01.03.2012. The qualification 8 prescribed for the post of Assistant Professor is a Bachelor's degree in Veterinary Science from a recognized University; a Master's degree in the concerned/allied subject from a recognized University with a minimum of 50% marks and pass in NET. NET is relaxed for candidates holding Ph.D degree. The method of selection was on the basis of marks obtained in the qualifying examination. The petitioners as well as respondent No.3 participated in the selection process. The Selection Committee recommended the name of 3rd respondent for appointment as Assistant Professor. Challenging the selection of 3rd respondent, the petitioners are before this Court in these two writ petitions.
5. This Court, by order dated 04.04.2019 in W.P.No.6766/2019 observed that the appointment of respondent No.3 shall be subject to outcome of the writ petition.
9
6. Heard learned Senior Counsel Prof. Ravi Varma Kumar for petitioner in W.P.No.14113/2019 and Sri.S.B.Mukannappa, learned counsel for petitioner in W.P.No.6766/2019, Sri.V.B.Vijaykumar, learned counsel for respondent No.3 in both the writ petitions, Smt.M.C.Nagashree, learned AGA for respondent No.1, Smt.Vaishali Hegde, learned counsel for respondent No.2-
University in W.P.No.14113/2019 and Sri.H.N.Shashidhar, learned counsel for respondents No.1 and 2 in W.P.No.6766/2019.
7. Memo dated 04.12.2021 is filed by the learned counsel for the petitioner W.P.No.14113/2019, stating that the petitioner would not press prayer No.1 to quash the notification bearing No. J¸ï.qÀ§Äèöå.r 47 J¸ïn¹ 2004 dated 09.05.2005 (Annexure-G1) and notification No.J¸ï.qÀ§Äèöå.r 7 J¸ïn¹ 2012 dated 01.03.2012 (Annexure-G2) enhancing the upper age limit to 59 years. Memo is taken on record. 10 Prayer No.1 in W.P.No.14113/2019 is dismissed as not pressed.
8. Learned Senior counsel for the petitioner would submit that, selection and appointment of respondent No.3 is wholly illegal and opposed to the Karnataka State Civil Service (Unfilled Vacancies Reserved for the Persons Belonging to the Scheduled Caste/Scheduled Tribes) (Special Recruitment) Rules 2001 (for short "2001 Rules"). Elaborating his argument, learned Senior Counsel referring to 2001 Rules submits that Rule 6 provides for preparing the list of selected candidates. Selecting Authority shall prepare a list of candidates who are in the age group of 29 and 40 years and prepare another list of candidates who are in the age group of 18 and 29 years. First preference shall be given to the candidates who are aged between 29 and 40 years and if sufficient eligible candidates are not available in the age group of 29 and 40 years, then candidates in the age 11 group of 18 and 29 years could be considered for appointment. Learned Senior Counsel would submit that maximum age limit for Schedules Caste and Scheduled Tribe candidates was 40 years and the same was enhanced to 59 years under Government Notification dated 09.05.2005. It is his submission that by virtue of enhancement of upper age to 59 years, age group as contemplated under Rule 6 of 2001 Rules gets expanded from 29 years to 59 years. Thus, there could be only two groups i.e., 29 to 59 years and 18 to 29 years. But the University by its resolution dated 18.01.2019 resolved to create 3rd age group between 41 to 59 years, which according to the learned Senior Counsel is impermissible and opposed to 2001 Rules.
9. Learned Senior counsel further contends that the notification inviting applications would clearly state that the recruitment of backlog vacancies would be in accordance with 2001 Rules. When 2001 Rules provides 12 only two age groups, the respondent-University could not have formed 3rd age group which would amount to changing the rule of the game after commencement of the game. Creation of 3rd age group of 41 and 59 years is unauthorized either under 2001 Rules or subsequent Government Order dated 09.05.2005. Further it is submitted that the Selection Committee of the respondent- University recommended the eligible candidates in order of merit and age-wise by its proceedings dated 04.01.2019. As on the said date in accordance with 2001 Rules, there was only two age groups of 29 to 40 years and 18 to 28 years. In the selection list based on the order of merit, the petitioner was at Sl.No.1 having secured 89% of marks, whereas the 3rd respondent was at Sl.No.2 having secured 72.90% marks. Only to see that the 3rd respondent is selected even though he is less meritorious, 3rd age group between 41 and 60 is created by resolution dated 18.01.2019 of Board of Management. It is submitted that creation of 3rd age group would not be permissible but the 13 University could have expanded the age group of 29 to 40 years to 29 to 59 years. Learned Senior Counsel would submit that only to favour the 3rd respondent who is aged 42 years, age group of 41 to 60 years is created after commencement of the recruitment process, that too after recommendation of the Selection Committee under Annexure-M. Thus, he submits that selection and appointment of 3rd respondent is wholly illegal.
10. Learned Senior Counsel lastly contended that the petitioner is more meritorious than respondent No.3, hence, the petitioner ought to have been selected and appointed to the post of Assistant Professor, Dairy Economics and Business Management. It is submitted that the petitioner has scored 89% of marks whereas Respondent No.3 has scored 72.90%, as such the petitioner is more meritorious than the petitioner. Since the petitioner is more meritorious and to keep the petitioner out, age group of 41 years to 59 years is created 14 by resolution dated 18.01.2019, after and during the course of recruitment process.
11. Per contra, learned counsel Smt.Vaishali Hegde for respondent-University submits that it is a special recruitment to fill up backlog vacancies by following 2001 Rules. Further she submits that under notification dated 09.05.2005, maximum age to apply was enhanced to 59 years, which was made applicable to University recruitment also. It is submitted that consequently in view of enhancement of upper age limit, the respondent- University by its resolution dated 18.01.2019 resolved to create a separate age group of 41 to 59 years for backlog recruitment. Learned counsel would submit that selection list is to be prepared in accordance with Rules 6 and 9 of 2001 Rules. In view of creation of 3rd age group between 41 to 59 years of age, preference shall be given to the persons in that age group in the matter of selection and appointment. Accordingly, 3rd respondent who is in the 15 age group of 41 to 59 years and meritorious in that age group was selected and appointed as Assistant Professor in Dairy Economics and Business Management. She justifies the selection and appointment of 3rd respondent.
12. Learned counsel Sri.Vijayakumar Bajantri for Respondent No.3 submits that 2001 Rules provides for method of selection to the backlog posts in the State Civil services based on the age and under 2001 Rules, importance is given to the age. It is submitted that under notification dated 09.05.2005, the Government enhanced the upper age limit to 59 years in respect of recruitment to Assistant Professors and Professors of the University. When the upper age limit was enhanced to 59 years, the University which is the appointing authority rightly in exercise of its power created the 3rd age group of 41 to 60 years. It is contended by the learned counsel for respondent No.3 that the notification inviting applications specifically noted that the selection of candidates is based 16 on 2001 Rules as well as notifications dated 09.05.2005 and 01.03.2005. When the petitioner was aware of notifications under which, recruitment is to be made and also having the knowledge of enhancement of upper age limit to 59 years, after completion of selection process, it is not open for the petitioner to challenge the creation of 3rd age group i.e. 41 to 60 years. It is the specific contention of the 3rd respondent that the Selection Committee selected respondent No.3 on the basis of age and merit. On selection and appointment, the 3rd respondent reported to duty on 19.01.2019 and he is presently discharging his duties as Assistant Professor in Dairy Economics and Business Management.
13. Learned counsel Sri.Vijayakumar would further submit that merely because the petitioner is more meritorious, he would not be entitled for selection and appointment, when age is given importance under 2001 Rules. As respondent No.3 is aged about 43 years and 17 falls under the age group of 41 to 60 years, he is selected and appointed.
14. Learned AGA appearing on behalf of respondent No.1-State Government, referring to statement of objections filed on behalf of State Government submits that notification dated 09.12.2005 enhanced the upper age limit to 59 years and also made applicable to the recruitment of Assistant Professors and Professors of the University. Thereby the maximum age limit for recruitment of Assistant Professors and Professors under backlog gets enhanced to 59 years. Further, learned AGA submits that under 2001 Rules, only two age groups are permitted i.e., 29 to 40 years and 18 to 29 years. Learned AGA specifically submits that in view of enhancement of the upper age limit to 59 years, the age group of 29 to 40 years gets expanded to 29 to 59 years. Further, it is submitted that it is not permissible to form 3rd age group of 41 to 60 years under 2001 Rules.
18
15. Learned counsel Sri.Mukkannappa appearing for petitioner in W.P.No.6766/2019, submits that the petitioner is more meritorious than the 3rd respondent and the petitioner has also passed NET, whereas 3rd respondent has not passed NET and the Ph.D possessed by the 3rd respondent is not in the relevant subject, but it is in General Economics. Learned counsel would submit that the University erroneously and arbitrarily selected the 3rd respondent. Further it is submitted that the University failed to publish the provisional select list providing an opportunity to file objections by the aggrieved candidates. Without publishing provisional select list, the University straight away appointed the 3rd respondent as Assistant Professor.
16. Learned counsel Sri.H.N.Shashidhar appearing on behalf of respondent-University in W.P.No.6766/2019 submits that petitioners in both the writ petitions as well as 3rd respondent would not possess the notified 19 qualification under revised notification dated 17.10.2018. Learned counsel inviting attention to the revised notification dated 17.10.2018 submits that the prescribed qualification under the notification was Bachelor's degree in Veterinary Science from a recognized University; Master's degree in the concerned subject from a recognized University with minimum of 50% marks and passing NET with relaxation of NET to Ph.D holders. It is submitted that neither the petitioners nor the 3rd respondent possess the qualification of degree in Veterinary Science and it is submitted that they possess basic degree in Agricultural Science. Hence, it is submitted that neither the petitioners nor 3rd respondent are eligible for selection and appointment.
17. Learned Senior Counsel for the petitioner replying to the contention of the learned counsel for University that neither the petitioners nor respondent No.3 possess qualification as notified under the notification, submits 20 referring to the Cadre and Recruitment Rules of the University, that the qualification prescribed is Bachelor's Degree from State Veterinary University/State Agricultural Universities. It is submitted that the notification inviting applications is not in consonance with the Cadre and Recruitment Rules of the University. Hence, it is submitted that the Cadre and Recruitment Rules should prevail over the recruitment notification. Since the petitioners as well as 3rd respondent possess B.Sc. degree in Agriculture from Agricultural University, they would be entitled for consideration of their cases based on the said qualification in accordance with the C & R Rules.
18. Having heard the learned counsel for the parties and on perusal of the entire writ petition papers, the following points would arise for consideration:
(i) Whether 2001 Rules permit formation of 3rd age group between 41 and 60 years?21
(ii) Whether the respondent-University could have changed the selection criteria by creating 3rd age group after commencement of the recruitment process and after recommendation of Selection Committee?
(iii) What Order?
19. The answer to points No.1 and 2 would be in the negative and Point No.3 as per final order.
Admitted facts are that, the second respondent- University to fill up backlog vacancies of Assistant Professors issued revised notification dated 17.10.2018 (Annexure-C). One of the posts notified was one post of Assistant Professor in Dairy Economics and Business Management under Scheduled Caste category. The petitioners in both the writ petitions as well as respondent No.3 applied for one post of Assistant Professor in Dairy Economics and Business Management. The notification had clearly mentioned that selection of candidates would be based on 2001 Rules as well as subsequent 22 Government Orders dated 09.05.2005 (Annexure-G1) which enhanced upper age limit to 59 years and Government letter dated 01.03.2012 (Annexure-G2). The qualification prescribed for the post of Assistant Professors under revised notification dated 17.10.2008 reads as follows:
"1. A Bachelor's degree in Veterinary Science from recognized University.
2. A Master's degree in the concerned/allied subject from a recognized University with a minimum of 50% marks.
3. NET is compulsory in the concerned/allied subject. NET is relaxed for candidates holding Ph.D degree provided it has been done with course work as prescribed by the UGC regulation 2009. The candidates with Ph.D degree without course work will not qualify for NET exemption."
It is clear from the above, for the post of Assistant Professor one should possess Bachelor's degree in Veterinary Science; Master's degree in concerned subject 23 with minimum 50% marks and NET, with relaxation to Ph.D degree holders to pass in NET. It is also an admitted fact that the petitioners as well as respondent No.3 possess Bachelor's degree in Agricultural Science and they do not possess Bachelor's degree in Veterinary Science, which is the requirement under recruitment notification. It is also an admitted fact that the Cadre and Recruitment Rules of the respondent-University insofar as Assistant Professor of Dairy Economics and Business Management (extract of which is placed on record along with memo dated 09.11.2021 as Annexure-AB) prescribes the following qualification for recruitment.
"Bachelor's Degree from State Veterinary University/State Agricultural Universities or equivalent.
M.Sc. (Agri. Economics);
Ph.D. in Dairy Economics;
M.B.A in Marketing;
Finance or Production Management." 24
20. Re:Point No.1:
As stated above, recruitment and selection under revised notification dated 17.10.2018 (Annexure-C) was based on 2001 Rules. Rule 6 of 2001 Rules provides for preparation of list of selected candidates, 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, 1997 and the rural candidates in accordance with the Karnataka 25 Reservation of Appointments or Posts ( In the Civil Services of the State or Rural Candidates) Act, 2000. If however, sufficient number of candidates, who have attained the age of 29 years but not attained the age of 40 years are not available, the candidates, who have attained the age of 18 years but not attained the age of 29 years shall also be included in the select list in accordance with the provisions specified above to the extent of such insufficient number:
Provided that if two are more candidates have secured equal percentage of total marks in the qualifying examination, the order of merit in respect of such candidates shall be fixed on the basis of their age, the one older in age being placed higher in the order of merit. The number of candidates to be included in such list of eligible candidates shall be equal to the total number of vacancies notified under these rules.
(2) the list prepared in accordance with sub-rule(1) shall be published in the Official Gazette and shall be valid till all the candidates suitable for appointment notified under these rules are appointed."26
From a reading of the above rule, what emerges is, the Selecting Authority shall first prepare a list of candidates for each category of post in the order of merit on the basis of percentage of total marks secured in the qualifying examination in the age group of 29 years, but not attained the age of 40 years. If sufficient number of candidates in the said age group are not available, the candidates who have attained the age of 18 years but not attained the age of 29 years shall be prepared in the order of merit on the basis of percentage of total marks secured in the qualifying examination. Thus, it is clear that Rule 6 provides for two age groups between 29 and 40 years and 18 to 29 years. It would not permit formation of 3rd age group nor would it authorize the Selecting Authority to form 3rd age group of 41 to 60 years.
21. Under notification dated 09.05.2005 (Annexure-G1), upper age limit for recruitment in Universities to the post of Assistant Professor and Professor is increased/ 27 enhanced to 59 years. Therefore, candidates up to the age of 59 years if they are otherwise eligible could apply for recruitment of backlog vacancies in the Universities.
22. In view of the enhancement or increasing upper age limit to 59 years, the age group of 29 and 40 years permitted under 2001 Rules, gets expanded to 29 to 59 years. But, taking note of the notification dated 09.05.2005 enhancing upper age to 59 years, the Selecting Authority or Recruiting Authority is not authorized nor permitted to create 3rd age group of 41 to 60 years. The Government also in its statement of objection categorically states that as per 2001 Rules there should be only two age groups i.e., 18 to 29 years and 29 to 59 years. When the recruitment is on the basis of 2001 Rules, the recruitment shall be completed strictly in accordance with 2001 rules and it is not permissible for the Recruiting or Selecting Authority to deviate from rigor of 2001 Rules, particularly, Rule 6. The contention of 28 learned counsel for Respondent No.3 that the notifications dated 09.05.2005 and 01.03.2005 (Annexures-G1 and G2) are issued in order to provide additional age group of 40 to 59 years to ensure that upper age of 59 years prescribed are met, is untenable. From a reading of notification dated 09.05.2005 as well as letter dated 01.03.2012, it is clear that it would not provide for creation of additional age group of 41 to 60 years and it only enhances the upper age limit to 59 years. Thus, I am of the clear view that 2001 rules would not provide for creation of 3rd age group of 41 to 60 years. Thus, Point No.1 is answered accordingly.
23. Re: Point No.2:
The Selection Committee of second respondent- University in pursuance of the revised recruitment notification dated 17.10.2018 prepared the list of eligible candidates in order of merit and recommended to the Board of Appointment on 04.01.2019 as evidenced from 29 Annexure-M. Annexure-M list of eligible candidates in the order of merit, the petitioners are placed at Sl.No.1 and 2 respectively and respondent No.3 is placed at Sl.No.3 in the age group of 29 to 59 years. Subsequent to the preparation of list of eligible candidates on the basis of merit, the second respondent-University under resolution dated 18.01.2019 (Annexure-R2) of the Board of Management under item No.1 resolves as follows:
"Item No.1: - Recruitment of Backlog teaching post (Notification No.R/KVAFSU/ Rectt(T)/BLR(Asst.Prof)/ 2018-19) The Board deliberated in detail about Backlog recruitment guidelines adopted by the Bangalore University based on the DPAR 44 service rules 2008 and G.O.No.ED 37 UNE 2009 Dt. 15.10.2009 and DRAR order rule No.6, the Board was approved the same and permitted to adopt by the KVAFSU. Accordingly, it was decided to adopt 3 categories in age groups at 30 the entry level posts only (i.e. Assistant Professor). The appointment orders will be issued without waiting for confirmation of the minutes.
The Age Groups
1. Group - I 61 to 41 years
2. Group - II 40 to 29 years
3. Group - III 28 to 18 years The University under the above resolution decided to adopt 3 categories of age group to the entry level posts i.e., Assistant Professor.
24. The recruitment notification as stated above makes it clear that selection would be based on 2001 Rules. The 2001 rules permits formation of only two age groups i.e., aged between 29 to 40 years and 18 to 29 years. In view of enhancement of upper age limit to 59 years, the age group gets expanded to 29 to 60 years. The respondent- University after commencement of the recruitment process that too after preparation of selection list in the order of 31 merit could not have created 3rd age group of 41 to 60 years under the above resolution dated 18.01.2019, which would amount to changing the rules of the game after commencement of the game. When once the recruitment notification is published, recruitment process and selection shall be completed in accordance with the norms fixed under the recruitment notification. Selection criteria stated in the recruitment notification cannot be altered or changed during the process of selection.
25. The Hon'ble Apex Court in a case reported (2009) 14 SCC 517 in the case of TAMIL NADU COMPUTER SCIENCE BED GRADUATE TEACHERS WELFARE SOCIETY (1) v/s HIGHER SECONDARY SCHOOL COMPUTER TEACHERS ASSOCIATION AND OTHERS was examining the issue, where the State Government had reduced the minimum qualifying marks for the post of Computer Instructors from 50% to 35% in the midway 32 after the selection process was initiated. It is held at paragraphs 32 and 33 as follows:
"32. Prior to holding of the said test guidelines were formulated through a policy decision laying down the criteria that the minimum qualifying marks in the said test would be at least 50%. The said guidelines of recruitment as laid down through a policy decision were sacrosanct and were required to be followed for all practical purposes even if we accept that the Government could have filled up the said posts of computer instructors by holding a special recruitment test of the aforesaid nature as one-time exception.
33. We, however, cannot hold that the subsequent decision of the Government thereby changing qualifying norms by reducing the minimum qualifying marks from 50% to 35% after the holding of the examination and at the time when the result of the examination was to be announced and thereby changing the said criteria at the verge of and towards the end of the game as justified, for we find the same as arbitrary and unjustified. This Court in Hemani 33 Malhotra V/S High Court of Delhi has held that in recruitment process changing rules of the game during selection process or wh1en it is over are not permissible."
26. In the case on hand also, the second respondent- University after preparation of merit list on the basis of age group of 29 to 59 years, by resolution dated 18.01.2019 created 3rd age group of 41 to 60 years, which would amount to changing the selection criteria in the midway of the selection process, which is also impermissible under 2001 Rules.
27. From the material on record, it is seen that the 3rd age group of 41 to 60 years is created only to select and appoint 3rd respondent. If there were to be only two age groups of 29 to 59 year and 18 to 29 years the respondent No.3 would not have got selected, since in the age of 29 to 60 years, petitioners were more meritorious than the 3rd respondent. The point No.2 is answered accordingly. 34
28. The petitioners as well as respondent No.3 possess Bachelor's Degree in Agricultural Science and they would not possess the qualification prescribed under the recruitment notification dated 17.10.2018 i.e., Bachelor's degree in Veterinary Science. The contention of the learned Senior Counsel that no other candidate has approached this Court questioning the notification and the notification is contrary to C & R Rules is untenable and cannot be accepted in the peculiar facts of the present case and if accepted, it would be violative of Articles 14 and 16 of the Constitution of India. If the qualification as prescribed under C & R Rules was notified under the recruitment notification, other eligible candidates possessing the Bachelor's degree in Agricultural Science would have got an opportunity to participate in the selection process. The other eligible candidates who had the qualification as prescribed under the C & R Rules had no opportunity to participate in the selection process, as the qualification prescribed under the notification was 35 Bachelor's degree in Veterinary Science. Any recruitment to any public office shall be in compliance with Articles 14 and 16 of the Constitution of India.
29. The petitioners as well as respondent No.3 would not possess qualification prescribed under the recruitment notification, as such, none would be eligible for appointment as Assistant Professor of Dairy Economics and Business Management in terms of revised Recruitment Notification dated 17.10.2018. The selection and appointment of 3rd respondent would not stand to legal scrutiny since his appointment is opposed to 2001 Rules and 3rd respondent would not possess qualification as prescribed under the revised recruitment notification dated 17.10.2018. Hence, the following order:
(a) Both the writ petitions are allowed in part.
(b) Selection and appointment of 3rd respondent in pursuance of the order bearing No.R/85BOM/R-T-
Appt/AP/2018-19/5670 dated 19.01.2019 is quashed. 36
(c) The second respondent-University is directed to initiate fresh recruitment process in accordance with the C & R Rules to the post of Assistant Professor, Dairy Economics and Business Management, under 2001 Rules.
SD/-
JUDGE mpk/-* CT:bms