Karnataka High Court
Ms. Kavyashree. K vs The Kuvempu University on 9 December, 2020
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.55568/2017 (S-RES)
BETWEEN
M/S KAVYASHREE K
D/O KRISHNAMURTHY A.S
AGED ABOUT 26 YEARS
RESIDING AT C/O NARAYANAPPA D.P
VIDHYANAGAR POST,
HARIGE
SHIVAMOGGA TALUK & DISTRICT - 577 203. ...PETITIONER
(BY SRI. J.D.KASHINATH, ADVOCATE)
AND
1. THE KUVEMPU UNIVERSITY
JNANA SAHYADRI,
SHANKARAGHATTA, BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT - 577 451
REPRESENTED BY ITS REGISTRAR
2. THE BOARD OF APPOINTMENTS
KUVEMPU UNIVERSITY
JNANA SAHYADRI
SHANKARAGHATTA, BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT - 577 451
REPRESENTED BY ITS CHAIRMAN. RESPONDENTS
(BY SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS FROM R-1 DATED 01.10.2017 AT ANNEXURE -F;
AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED 2/12/2020 COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court under Article 226 of the Constitution of India praying for a direction to declare the recruitment of backlog vacancy of one post of Assistant Professor in Physics pursuant to the notification bearing No.KU/HRM-1/3776/2017-18 dated 12.10.2017 Annexure-F as illegal and arbitrary, consequently for a direction to the respondent-The Kuvempu University (for short 'the University') to proceed with the recruitment of backlog vacancy of one post of Assistant Professor in Physics, strictly in accordance with Circular No.ED 136 UNE 2017 dated 17.07.2017, Annexure -G.
2. Petitioner claims that he belongs to schedule tribe community and in support of his claim he has placed on 3 record Annexure-A certificate issued by the competent authority. The petitioner possess the qualification of M.Sc. in Physics from Kuvempu University and it is also stated that petitioner secured First rank in M.Sc. She has also completed State Eligibility Test conducted by the State of Karnataka.
3. The respondent - University vide Annexure F dated 12.10.2017 invited applications from eligible candidates to fill up one post of backlog vacancy of Assistant Professor of Physics and Electronics in the Post Graduate Department of Physics. The backlog vacancy was in the category of schedule tribe. The petitioner being fully eligible and qualified, applied for the post of Assistant Professor in Physics and vide Annexure-H intimation letter dated 06.12.2017, the respondent-University called the petitioner for interview to be held on 11.12.2017. The petitioner having no other choice attended the interview held on 11.12.2017 and also filed the present writ petition 4 before this Court on the same day i.e., on 11.12.2017. The University without following the procedure laid down under Annexure-G dated 17.07.2017 and without conducting the written test as notified under Annexure-F dated 12.10.2017 proceeded to interview the candidates. The selection was based on the marks obtained in the PG level, research performance, written test and oral interview. As the respondent-University failed to conduct the written test as required, the petitioner is before this Court in this writ petition.
4. Heard Sri.J.D. Kashinath, learned counsel for the petitioner and Sri.T.P. Rajendra Kumar Sungay, learned counsel for the respondents through video conference. Perused the writ petition papers.
5. Sri Kashinath, learned counsel for the petitioner submits that vide Annexure-F respondent-University invited applications to fill up one backlog post of Assistant Professor in Physics. The notification clearly indicated 5 that the recruitment procedure is governed by the guidelines issued by the Government of Karnataka vide Annexure-G Circular bearing No.ED 136 UNE 2017 dated 17.07.2017. Further learned counsel would submit that notification also indicated that the candidates are required to qualify in the written test to become eligible to appear for interview. It is his submission that the respondent- University dispensing with the written test, proceeded to call the candidates for interview, which is impermissible. The learned counsel invites attention of this Court to Annexure-G wherein the State Government has laid down guidelines for recruitment to the respondent-University. It is his submission that ultimate selection would be on the overall performance and marks obtained by the candidate at the PG level, research performance, written test and interview. When written test marks are also to be taken for assessing the overall performance of a candidate, the respondent-University could not have dispensed with the conduct of written test. 6 With regard to contention of the respondent-University that as per the clarification of the State Government by letter dated 27.11.2017, the respondent-University followed the Karnataka State Civil Services (Unfilled vacancies reserved for the persons belonging to the Schedule Castes and Schedule Tribes) (Special Recruitment) Rules 2001 (for short 'the 2001 Rules') and dispensed with the written test, he submits that the respondent-University having notified the procedure for selection in its notification dated 12.10.2017, subsequently it could not have deviated from the notified procedure. Thus he specifically contends that when the marks obtained in the written test is also the basis for selection, non-conduct of written test would be wholly illegal and the entire recruitment process would be vitiated. Thus he prays for allowing the writ petition directing the respondent University to complete the recruitment under Annexure-F dated 12.10.2017 strictly in accordance with the procedure laid down therein. 7
6. Per contra, Sri Rajendra Kumar Sungay, learned counsel taking through the statement of objection justifies the action of the respondent-University in conducting the interview without holding written test. Referring to Annexure-F dated 12.10.2017 learned counsel would submit that candidates are required to qualify in the written test to become eligible to appear for interview, when such is the condition and when the University has called all the candidates for interview including the petitioner, no prejudice is caused to the petitioner in not conducting written test. Further Sri Sungay, learned counsel submits that the respondent-University had written letter to the State Government seeking clarification as to the applicability of procedure prescribed under Annexure-G dated 17.07.2017, and the government had clarified that backlog vacancy of schedule caste and schedule tribe could be filled up by following 2001 Rules. As per the said clarification, the University proceeded to 8 follow the 2001 Rules for recruitment of one post of backlog vacancy of Assistant Professor in Physics notified under Annexure-F dated 12.10.2017. It is his further submission that 2001 Rules would not contemplate conduct of written test. It would contemplate preparation of list based on age criteria and interview. Further learned counsel would contend that petitioner having participated in the interview without any objection, it is not open for the petitioner to contend that written test ought to have been conducted by the University. Thus he prays for dismissal of the writ petition.
7. The respondent-University under notification dated 12.10.2017 Annexure-F invited applications to fill up one backlog post of Assistant Professor in the Department of Physics. The backlog post of Assistant Professor in the Department of Physics was in the category of schedule tribe. The recruitment notification indicated that procedure for recruitment would be governed by the 9 guidelines issued by Government of Karnataka vide Annexure-G Circular bearing No.ED 136 UNE 2017 dated 17.07.2017. The notification also makes it clear that candidates are required to qualify in the written test to become eligible to appear for interview. Annexure-G dated 17.07.2017, Government guidelines lays down procedure for recruitment/norms for selection. The final selection is to be made on overall score of the candidate in PG level, research performance, written test and interview. Written test marks is also one of the criteria for determining overall performance of a candidate. When the guidelines or procedure lays down the norms for selection, the process of selection shall be completed by following the prescribed norms. When the recruitment notification indicates that the recruitment procedure laid down in Government circular dated 17.07.2017 would be followed, the respondent-University could not have changed or altered the procedure in the middle of the recruitment process. The contention of the learned counsel for the 10 respondent that the written test would be required only to qualify, to become eligible to appear for interview and as all the candidates, who had applied were called for interview, no prejudice is caused to the petitioner, cannot be accepted, especially when the marks obtained in the written test would also be added for assessing overall performance of a candidate. When Annexure-G guidelines governing recruitment makes it manifestly clear that overall marks of a candidate shall be calculated by taking into account the marks obtained at the PG level, research performance, marks obtained in the written test and interview, the respondent-University could not have dispensed with written test. If the marks obtained in the written test is also one of the criteria for calculating overall score of a candidate, non-conducting of the written test would be wholly opposed to the prescribed procedure under Annexure-G and the same would vitiate the entire selection process. The respondent-University in the statement of objection has admitted at paragraph 5 11 stating that insofar as the direct recruitment, the State Government directed the University to hold a written test for the assessment of domain knowledge and teaching skills, to the post of Assistant Professors in the respondent-University.
8. The contention of the respondent-University that the University had sought clarification by its letter dated 28.07.2017 as to what is the procedure to be followed to fill up backlog vacancy and as clarified by State Government, 2001 Rules was followed is untenable and has no legal basis. The University having notified the procedure for selection in its notification dated 12.10.2017, could not have changed the procedure in the midst of recruitment process, to follow the 2001 Rules. When once the recruitment process has begun, it is not permissible to change the criteria or selection procedure. The Hon'ble Apex Court has made it clear that once the game starts Rule of the game cannot be altered or changed 12 (K. MANJUSREE VS. STATE OF ANDHRA PRADESH AND ANOTHER reported in (2008) 3 SCC 512). The action of the respondent-University in not conducting the written test and following the 2001 Rules in the mid of the recruitment process is wholly unreasonable and unfair.
9. The University lastly contended that it is not open for the petitioner to question the recruitment process having participated in the interview held on 11.12.2017. The application of principle of acquiescence would depend on the facts and circumstances of each case. In the case on hand mere participation in interview could not be held against the petitioner. This Court has to appreciate the attending circumstances under which the petitioner appeared for interview. The petitioner who was expecting call for written test was informed by letter dated 6.12.2017 to attend the interview to be held on 11.12.2017 i.e., within five days from the date of information/intimation letter. The petitioner filed the writ petition on the date on which he attended interview contending that the 13 respondent-University proceeded to conduct the interview without the written test. In the peculiar facts of the present case, the participation of the petitioner in the interview cannot be held against him.
10. For the reasons stated above, the writ petition is allowed declaring that the respondent-University could not have proceeded with the selection process dispensing with the written test. The respondent-University is directed to complete the recruitment process to fill up one schedule tribe backlog vacancy of Assistant Professor in Physics initiated under notification No.KU/HRM- 1/3776/2017-18 dated 12.10.2017 (Annexure-F) scrupulously following the guidelines issued by the Government of Karnataka vide Circular bearing No.ED 136 UNE 2017 dated 17.07.2017 (Annexure-G).
Sd/-
JUDGE NG* CT:rs