Karnataka High Court
Mrs.Sudha U vs State Of Karnataka on 23 May, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.3446 OF 2021 (S-RES)
BETWEEN:
MRS. SUDHA U.
AGED ABOUT 42 YEARS
RESIDING AT DOOR NO.4,
1ST AVENUE, NMPT COLONY,
HOSBETTU, SURATHKAL,
EMPLOYED AS HEAD OF
DEPARTMENT OF POLITICAL SCIENCE,
GOVINDA DASA COLLEGE,
SURATKAL,
DAKSHINA KANNADA - 575 014.
...PETITIONER
(BY SRI. P.P. HEGDE, SENIOR ADVOCATE FOR
SRI. VENKATESH SOMAREDDI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY COMMISSIONER
DEPARTMENT OF COLLEGIATE EDUCATION
BENGALURU - 560 001.
2. JOINT DIRECTOR
DEPARTMENT OF COLLEGIATE EDUCTION
GOVERNMENT COLLEGE CAMPUS
HAMPANKATTA, MANGALURU,
DAKSHINA KANNADA - 575 001.
2
3. MANGALORE UNIVERSITY
REPRESENTED BY VICE CHANCELLOR,
MANGALAGANGOTHRI - 574 199.
4. THE SECRETARY
HINDU VIDYADAYINI SANGHA (R.)
MANAGEMENT OF GOVINDA DASA
FIRST GRADE COLLEGE,
VIDYADAYINEE SCHOOL COMPOUND,
NH-66, SURATHKAL,
DAKSHINA KANNADA - 575 014.
5. SELECTION COMMITTEE CONSTITUTED IN
PURSUANT NOTIFICATION VIDE ANNEXURE-D
REPRESENTED BY MR. JANARDHAN E.
CHAIRMAN-CUM-PRESIDENT OF HINDU
VIDYADAYINI SANGHA,
MANAGEMENT OF GOVINDA DASA FIRST
GRADE COLLEGE, VIDYADAYINEE SCHOOL
COMPOUND, NH-66, SURATHKAL,
DAKSHINA KANNADA - 575 104.
6. DR. ASHALATHA P.
D/O SMT. RAMAKKA
AGED ABOUT 40 YEARS
RESIDING AT NO.204, IVANNA APARTMENT
BEHIND ZILLA PANCHAYAT OFFICE COMPLEX
KOTTARA,
MANGALURU - 575 006.
....RESPONDENTS
(BY SRI. M.S. NAGARAJA, AGA FOR R1 & R2;
SRI. T.P. RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R3;
SRI. PRASANNA V.R., ADVOCATE FOR R4 & R5;
SRI. SHIVAPRASAD SHANTHANGOUDAR, ADVOCTE FOR R6)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO (1) ISSUE
WRIT/ORDER DIRECTING RESPODNENT NO.1 TO REGULARISE
THE SERVICE OF THE PETITIONER IN THE COLLEGE MANAGED
BY RESPONDENT NO.4 AND TO EXTEND UGC SCALE AS PER THE
NOTIFICATION DATED 24TH DECEMBER, 2009 BEARING
GOVERNMENT ORDER NO.ED 37 UNE 2009, BENGALURU VIDE
ANNEXURE-W; (2) ISSUE WRIT/ORDER CALLING FOR THE
ORIGINAL RECORDS FROM RESPONDENTS PERTAINING TO THE
ENTIRE SELECTION PROCESS INCLUDING THE INTERVIEW
MARKS LIST TO THE POST OF ASSISTANT PROFESSOR FOR THE
SUBJECT POLITICAL SCIENCE HELD IN PURSUANCE OF THE
NOTIFICATION DATED 22ND FEBRUARY, 2019, VIDE ANNEXURE-
D; ETC.
THIS WRIT PETITION, HAVING BEEN HEARD AND
RESERVED ON 19TH APRIL, 2023, COMING ON FOR
"PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
In this writ petition, petitioner has sought for regularisation of her service in the respondent No.4-Institution; inter-alia, sought for quashing the selection/interview process conducted by the respondent-Institution for the post of Assistant 4 Professor in Political Science subject held pursuant to the Notification dated 22nd February, 2019 (Annexure-D), as arbitrary and contrary to law.
2. The relevant facts for adjudication of this writ petition are that the petitioner being qualified to be appointed as Lecturer in Political Science subject, has applied for the said post pursuant to the Notification issued by the respondents 1 and 2- Government dated 22nd February, 2019 (Annexure-D). It is averred in the writ petition that, the respondent No.4-Institution is an Aided Institution and competent authority to appoint employees to the Institution. Further, it is stated in the writ petition that, the petitioner initially appointed to the post of Lecturer in Political Science subject at Govinda Dasa First Grade College, Suratkal, managed by the respondent No.4-Institution as per the appointment order dated 10th June, 2004 (Annexure- A). Thereafter, the petitioner continued to work in the said Institution till 2012. The respondents have not extended the University Grants Commission (for short; hereinafter referred to as 'UGC') Scale to the petitioner, despite the petitioner has passed State Level Eligibility Test (SLET) and as such, the 5 petitioner has made representation dated 01st August, 2012 to the respondent No.1, seeking regularisation of her service in the said Institution. However, the case of petitioner was kept pending by the respondents for regularisation. In the meanwhile, several posts of teaching staff in the respondent No.4-Institution fell vacant and accordingly, the respondent No.1 has issued a Notification dated 22nd February, 2019 (Annexure- D), inviting applications from eligible candidates including for the post of Assistant Professor in Political Science subject. The respondent No.4-Institution has made a representation to the respondent No.3-University for constituting a composition of members of Selection Committee to conduct interview in terms of the UGC Guidelines. The Selection Committee was constituted on 22nd April, 2019 and same was communicated to the respondent No.2, along with the applications made by the candidates. Thereafter, respondent No.4-Institution addressed letter dated 21st August, 2019 (Annexure-H) to respondents 1 and 2 stating that there is an illegality in the process of Selection for the post of Assistant Professor in Political Science subject and as such, the governing council of respondent No.4-Institution 6 decided in its meeting dated 18th August, 2019, to re-conduct the selection process afresh. Pursuant to the same, the respondent No.2 has communicated to the respondent No.3- University to enquire into the matter in detail and sought for a report from the respondent No.3-University (Annexure-J). In reply to the same, the respondent No.3-University addressed letter to the respondent No.4-Institution to conduct the re- interview by providing Academic Performance Indicator (for short, hereinafter referred to as 'API') marks to the candidates who applied for the post of Assistant Professor in Political Science subject, and complete the selection process at the earliest as per the University Grants Commission Guidelines and to file detailed report. It is averred in the writ petition that the interview for the post of Assistant Professor in Political Science was held on 28th May, 2019 and ten candidates had appeared for the said interview. In the meanwhile, the respondent No.4- Institution has addressed letter to the respondents 1 and 2, seeking permission to conduct fresh interview for the post of Assistant Professor in Political Science subject (Annexures 'P' and 'Q'). It is also to be noted that the respondent No.3-University 7 by its letter dated 19th June, 2020 (Annexure-S) to the respondent No.2 conveyed that the respondent-University has no power to cancel the selection process. It is averred that the Selection Committee was consisting of seven numbers namely 1) Janardhan E. (President of the respondent-Institution), 2) Prof. Krishnamurthy (Principal of the respondent-College), 3) Prof. P.L. Dharma (Nominee of the respondent-University), 4) Prof. Jayaraj Amin (Nominee of the respondent-University, 5) Dr. Nagappa Gowda (Government College, Mangaluru), 6) Dr. Sharmila Rai (Government College, Mangaluru) and 7) Dr. Kiran (Government College, Brahmavara). It is alleged in the writ petition that there were lot of manipulations and malpractices committed by the Members of the Selection Committee particularly, the Members namely Prof. P.L. Dharma, Prof. Jayaraj Amin and Dr. Kiran. It is contended in the petition that the entire interview and awarding marks by the Members of the Committee lacks fairness, inter-alia, the marks sheets have been tampered. The petitioner is unaware about the API Scores allotted by the Members and in this regard an application has been made to the respondents under Right to Information Act, 8 seeking relevant documents, however, same has not been furnished to the petitioner. The petitioner further contended that, an application has been made to the respondent No.2 under Right to Information Act, seeking information with regard to the marks awarded during the interview and pursuant to the same, the petitioner came to know about the letter of the respondent No.2 dated 08th January, 2021 (Annexure-T1), with regard to the manipulation of marks. The petitioner has also lodged complaint to the respondent No.1 against the illegalities committed during Selection Process as per Annexure-V. It is the grievance of the petitioner that the entire selection process is contrary to the UGC Regulations and Rules provided for appointment of Assistant Professor by the respondent No.2. Hence, this writ petition.
3. On service of the notice, respondents entered appearance and filed statement of objections.
4. I have heard Sri. P.P. Hegde, learned Senior Counsel on behalf of Sri. Venkatesh Somareddi, appearing for the petitioner; Sri. M.S. Nagaraja, learned Additional Government 9 Advocate appearing for respondents 1 & 2; Sri. T.P. Rajendra Kumar Sungay, learned counsel appearing for the respondent No.3; Sri. Prasanna V.R., learned counsel appearing for the respondents 4 & 5; and Sri. Shivaprasad Shantangoudar, learned counsel appearing for the respondent No.6.
5. Sri. P.P. Hegde, learned Senior Counsel appearing for the petitioner submitted that the petitioner is not pressing the prayer No.1 and accordingly, sought for consideration of remaining prayers in the writ petition. Sri. P.P. Hegde, learned Senior Counsel while referring to the Annexures 'R4' and 'R5' of the statement of objections filed by the respondent No.4- Institution, argued that the Members of the Committee namely Prof. P.L. Dharma, Prof. Jayaraj Amin and Dr. Kiran have tampered the marks awarded to the candidates and hence, he contended that the marks awarded by those members of the Committee would substantiate that they have illegally manipulated the marks and therefore, he pleaded that the entire selection process suffers from illegality. Learned Senior Counsel further contended that the respondents ought to have followed 10 the procedure contemplated under UGC Regulations particularly Table-II(c) and the Regulation 20.2.4 as per Annexure-W. It is the contention of the learned Senior Counsel appearing for the petitioner that, the Selection Committee ought to have divided the total 100% into (1) Academic Record and Research performance (50%), (2) Assessment of Domain Knowledge and Teaching Skills (30%) and (3) Interview Performance (20%), however, without giving effect to the norms of UGC Regulations, the Selection Committee has allocated 10 marks for Teaching skills, 10 marks for Domain Knowledge and 12.5 marks for interview and no marks was awarded for Academic records and Research performance and therefore, he contended that the procedure adopted by the Selection Committee is contrary to the UGC Regulations.
6. Nextly, Sri. P.P. Hegde, learned Senior Counsel contended that, as per Regulation 2 of the UGC Regulations (2nd Amendment), Regulation 6.1.0 has been amended and therefore, the marks awarded towards API could not have been considered for the Expert Assessment of the candidates and 11 therefore, the API Score is to be used only for screening test and it has no bearing on the Expert Assessment and accordingly, he sought for interference of this Court. Emphasising on these aspects, Sri. P.P. Hegde, learned Senior Counsel argued that the Selection Committee has manipulated the marks particularly API Scores of the candidates and further he contended that the entire selection process is liable to be quashed as the same is arbitrary in nature and suffers from serious infirmity on account of not following the UGC Regulations. Referring to the Annexure-H, Sri. P.P. Hegde, learned Senior Counsel contended that the Chairman and other Members of the Committee have refused to sign the papers as they have found some illegalities committed by the aforementioned Members and accordingly, sought for interference of this Court. In order to buttress his arguments, Sri. P.P. Hegde, learned Senior Counsel appearing for the petitioner relied upon the judgment of Hon'ble Apex Court in the case of DR. (MAJOR) MEETA SAHAI vs. STATE OF BIHAR AND OTHERS reported in (2019)20 SCC 17; in the case of DR. T. PRATHAP AND OTHERS vs. STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY AND OTHERS 12 reported in ILR 2005 KAR 2686; and in the case of HAMZA V.K. (DR.) vs. ALIGARH MUSLIM UNIVERSITY reported in 2018 SCC OnLine KER 4952.
7. Per contra, Sri. Shivaprasad Shantangoudar, learned counsel appearing for respondent No.6 contended that, the petitioner having participated in the selection process cannot challenge the procedure adopted by the Selection Committee. He further contended that Section 40(1)(k) of the Karnataka State Universities Act, 2000 is applicable to the University affiliated Institutions and therefore, supports the Selection process adopted by the respondent No.4-Institution. He further contended that the petitioner herein has filed Writ Petition No.34998 of 2012 before this Court and this Court, by Order dated 20th September, 2012, disposed of the Writ Petition and in this regard he referred to paragraph 3 of the order and argued that the present writ petition deserves to be dismissed. Sri. Shivaprasad Shantangoudar, learned counsel further contended that the allegation made against the Members of the Selection Committee is an afterthought and therefore, the allegation made 13 by the petitioner cannot be accepted. He further contended that the overwriting on marks-sheet is nothing but the correction made by the Members of the Committee and no scope be given to such corrections made by the Committee members in the marks list. He further contended that all the Members of the Selection Committee have affixed their respective signature on the final score-sheet and therefore, he sought for dismissal of the Writ Petition.
8. Insofar as the arguments on the UGC guidelines, Sri. Shivaprasad Shanthangoudar, learned counsel contended that the respondent-University has adopted the Rules laid down by the Government of Karnataka and therefore, there is no semblance of arguments advanced by the learned Senior counsel appearing for the petitioner. In order to buttress his arguments, Sri. Shivaprasad Shantangoudar, learned counsel refers to the Judgment of Hon'ble Apex Court in the case of MADAN LAL AND OTHERS vs. STATE OF JAMMU & KASHMIR AND OTHERS reported in (1995)3 SCC 486.
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9. Sri. V.R. Prasanna, learned counsel appearing for respondents 4 and 5-Institution has taken me through the procedure adopted by the respondent-Institution pursuant to the publication of the Notification dated 22nd February, 2019 (Annexure-D) and argued that the interview was conducted between 27th May, 2019 and 03rd June, 2019 and found some corrections in the marks list prepared by the Selection Committee. He further contended that the petitioner was initially appointed as Lecturer on 03rd July, 2003 and her service has been continued by the respondent No.4-Institution and further, the case of the petitioner was recommended for regularisation of the service of the petitioner and approval is yet to be made by the respondent-authorities. He further contended that the University nominees in the Selection Committee have altered the marks by making corrections illegally and accordingly, sought for appropriate order so as to complete the selection process at the earliest and to fill-up the post approved by the respondent-authorities. On the instructions of the Court, Sri. V.R. Prasanna, learned counsel appearing for respondent- 15 Institution has produced the original records pertaining to the selection process along with the marks list.
10. Sri. M.S. Nagaraja, learned Additional Government Advocate appearing for respondents 1 and 2 reiterates the averment made in the statement of objections and submits that the Selection Committee has been constituted as per the Guidelines provided in Government Order dated 24th December, 2009 and argued that the respondent No.3-University, without any authority under law, directed the respondent No.4- Institution to grant API scores to the candidates (Annexure-K). Learned Additional Government Advocate supports the arguments advanced by the learned counsel appearing for respondent No.6 and accordingly, sought for dismissal of the Writ Petition.
11. Sri. T.P. Rajendra Kumar Sungay, learned counsel appearing for the respondent No.3-University argued that the selection of the candidates has to be made in accordance with the UGC Guidelines and as such, sought for dismissal of the Writ Petition.
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12. In the light of submission made by learned counsel appearing for the parties, I have carefully examined the writ papers. Respondent No.4-Institution has produced the original records along with marks sheet and same is perused. In view of the submission made by the learned Senior Counsel appearing for the petitioner, I have not given my consideration with regard to prayer No.1. In that view of the matter, the only question which requires to be answered in this Writ Petition is, whether the procedure adopted by the Selection Committee at the time of conducting an interview, is just and proper.
13. It is not in dispute that the respondent No.4- Institution is an Aided Institution and the Governing Council of the respondent No.4-Institution is the competent authority to appoint employees / Lecturers in the Institution by following the Rules provided under Karnataka Education Act and UGC Regulations. Respondent No.1-Government, by letter dated 22nd February, 2019 (Annexure-D), confirmed permitting the respondent No.4-Institution to fill-up eight posts in six different disciplines under UGC Scale. Pursuant to the same, the 17 respondent No.4-Institution invited applications from eligible candidates by publishing in the Daily Newspaper. The respondent No.3-University has constituted the composition of the Selection Committee as per Annexure-F, which reads as under:
"1. Two Nominee of the Vice Chancellor of the affiliating University of whom one should be a subject expert.
2. Two subject experts not connected with the college to be nominated by the Chairperson of the governing body of the college out of a panel of five names approved by the relevant statutory body of the university concerned.
3. An academician representing SC/ST/OBC/Minority/ women/differently abled categories, if any of candidates representing these categories is the applicant, to be nominated by VC. of any of the members of the selection committee do not belong to that category."
14. At this stage, it is also relevant to extract proviso to clause 2 of the University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) (2nd Amendment) 18 Regulations, 2013 dated 13th June, 2013 and same reads as under:
"Provided that API scores will be used for screening purpose only and will have no bearing on expert assessment of candidates in Direct Recruitment/ CAS."
15. The aforesaid amendment came into force on 13th June, 2013 and the selection process was of the year 2019, therefore, the aforesaid amendment is applicable to the case on hand. As per Appendix-III Table-II(c) of University Grants Commission Regulations, the requisite qualification and performance of the candidates for the post of Assistant Professor reads as under:
Assistant Professor equivalent cadres (Stage 1) Minimum API Scores Minimum Qualification as stipulated in these regulations Selection Committee a) Academic Record and criteria / weightages Research Performance (Total Weightages = (50%)
100)
b) Assessment of Domain Knowledge and Teaching Skills (30%)
c) Interview performance (20%) 19
16. Applying the aforementioned Regulation to the case on hand, I am of the view that the Selection Committee has not strictly followed the Guidelines made in the aforementioned UGC Regulation insofar as awarding the API Scores as well as awarding marks. Therefore, the entire process adopted by the Selection Committee is contrary to the UGC Regulations as well as the Government Order dated 24th December, 2009 (Annexure-W). Therefore, I am of the opinion that the petitioner has made out a case for interference in this writ petition. I have carefully examined the marks awarded by the Selection Committee, particularly API Scores, which runs contrary to the UGC Regulations referred to above. At this juncture, it is relevant to extract the procedure to be adopted by the Selection Committee while awarding API scores as per Government Order dated 24th December, 2009 (Annexure-W), whereby, clauses 20.1.8 and 20.2.4 read as under:
"20.1.8: The Academic Performance Indicator (API) scoring system in the process of selection of Principal should involve the following:
(a) Assessment of aptitude for teaching, research and administration.
(b) Ability to communicate clearly and effectively.20
(c) Ability to plan, analyse and discuss curriculum development, research problems and college development/administration.
(d) Ability to deliver lecture programmes to be assessed by requiring the candidate to participate in a group discussion or exposure to a classroom situation by a lecture.
(e) Analysis of the merits and credentials of the candidate on the bases of the Performance Based Appraisal System (PBAS) guidelines developed by the affiliating University based on the UGC Regulations.
20.2.4. The minimum norms of Selection Committees and Selection procedures as well as API scores requirements for the above cadres either through direct recruitment or through Career Advancement Schemes Regulations should be basically similar. However, since teachers recruited directly can be from different backgrounds and institutions, Table 2(c) of the UGC guidelines provides norms for direct recruitment of teachers to different cadres, while Tables II (a) and Table II (b) of UGC Regulations provide for CAS promotions of teachers in universities and colleges respectively, which accommodate these differences."
17. It is to be noted that the scores obtained by the candidates in API is not a determinative factor for assessment of the candidates and in this regard, the prescribed procedure ought to have been followed by the Selection Committee. It is 21 the principal argument of Sri. Shivaprasad Shantangoudar, learned counsel appearing for the respondent No.6 that the petitioner cannot maintain writ petition having participated in the selection process. In view of the conclusion arrived at by me supra, that the entire selection process de-hors the UGC Regulations and accordingly, I am of the view that, the entire selection process requires to be set-aside and the submission made by the learned counsel appearing for the respondents cannot be accepted to perpetuate the illegality in the selection process. In this regard, it is relevant to extract the dictum of the Hon'ble Apex Court in the case of MEETA SAHAI (supra).
"14. We may at the outset clarify that question of reconciling the Hindi and English versions does not arise in the present case for both versions of the Rules are similarly worded. We thus proceed under the assumption that Hindi will prevail over the English version in case of any conflict.
Preliminary Issues
15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very 22 challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for respondents relied upon a catena of decisions of this Court to substantiate his objection.
16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgements including Manish Kumar Shahi v. State of Bihar, observing as follows:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.
The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.23
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
18. The question of permissibility of giving weightage for 'work experience' in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such nonprivate hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that 24 the doctors recruited in not-so-rich states like Bihar have the requisite exposure to challenges faced in those regions.
19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents' interpretation of 'work experience' as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not."
18. In the case of DR. T. PRATHAP (supra) paragraphs 26 to 29 reads as under:
"26. In Madan Lal's case (supra) the Apex Court has held that the result of the interview test cannot be successfully challenged by a candidate who takes a chance to get selected at the interview and who ultimately finds himself to be unsuccessful. The same view was re-iterated in N. Chandrashekaran's case (supra) as also in R. Jagannatha's case (supra). However, in Rajkumar's case (supra), the Apex Court while considering the decision in Madan Lal's case (supra) has 25 held that in a case where the Government has committed glaring illegalities in the procedure to get the candidates for examination, the principles of estoppel by conduct or acquiescence has no application. It is held as follows:
"Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J and K. (1955) 3 SCC 486 and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the and also conduct of the selection in accordance with the Rules. Therefore, the principles of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law".26
27. In P.R Deshpande case (supra) it has been held that statutory remedy of appeal cannot be scuttled or foreclosed by an undertaking given by the tenant to the High Court that he would vacate the premises in question within specified days.
28. In Mohan Lal Agarwal's case (supra) an argument was advanced that the respondents' therein having participated in the selection process cannot turn round to challenge the same in the writ petition. The Supreme Court after considering several decisions on the point has held that when the condition of the policy is such that if the petitioners did not participate in the selection process, he forfeits his right to promotion permanently, there is hardly any choice for him except to participate in the selection process. It is further held that the time gap between the declaration of policy, the protest and the selection process being too short, there was hardly any time left to the petitioners to approach even the High Court.
29. In the present case, the State Government has committed glaring illegalities while providing service weightage to Contract Doctors for their contractual period of service. The petitioners have sent their protest letters and have appeared in the PGET without prejudice to their rights to challenge the Government Order. Time was too short between the Government Order (Annexure 'B') and the date of PGET. If they do not appear in PGET-2005, 27 they will loose that opportunity for ever. There was hardly any other choice for them except to appear in the PGET- 2005. In my view, the principles of estoppel by conduct or acquiescence has no application to the facts of this case.
19. In the case of HAMZA V.K. (DR.) (supra), learned single judge of High Court of Kerala in an identical factual aspects of the case, has held that the selection process adopted by the Selection Committee in the said case for the post of Assistant Professor in Management Studies and Research in Aligarh Muslim University at Malapuram Centre is arbitrary and has not adopted the UGC Regulation while awarding marks. Paragraph 8 of the judgment reads as under:
"8. On a perusal of the files produced before this Court, it can be seen that the selection committee had not followed the UGC Regulation in awarding marks. Awarding marks under the heads 'a and b' are based on the pre-existing factors. That means, those factors borne out of the Performance Based Appraisal System made available by the candidates concerned for obtaining API score for consideration for selection. The UGC consciously fixed the maximum marks of 20% for interview to avoid arbitrariness. The UGC Regulation itself stipulates that in Regulation 6.0.1 the University 28 must incorporate transparent, objective and credible methodology in overall selection process. The consolidated marks could not have been awarded in interview performance under the whole head of a to c. The University has to award marks separately under the category 'a and b' based on the records made available before the University. The marks could be awarded by the University objectively based on the interview performance only under category 'C'.
20. Recently, Hon'ble Apex Court in the case of GAMBHIRDAN K. GADHVI vs. STATE OF GUJARAT AND OTHERS reported in (2022)5 SCC 179, while considering the predominance of the UGC Regulations, at paragraph 50, held as follows:
16. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Section 26(1)(e) and 26(1)(g) of the UGC Act, 1956.
Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of the Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject 'education' is in the 29 Concurrent List (List III) of the Seventh Schedule of the Constitution. Therefore, any appointment as a Vice Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto.
21. In the case of PROF. (DR.) SREEJITH P.S. vs. DR. RAJASREE M.S. AND OTHERS reported in 2022 SCC OnLine SC 1473 at paragraph 24, Hon'ble Apex Court held as under:
"24. In view of the above two binding decisions of this Court, any appointment as a Vice Chancellor made on the recommendation of the Search Committee, which is constituted contrary to the provisions of the UGC Regulations shall be void ab initio. If there is any conflict between the State legislation and the Union legislation, the Union law shall prevail even as per Article 254 of the Constitution of India to the extent the provision of the State legislation is repugnant. Therefore, the submission on behalf of the State that unless the UGC Regulations are specifically adopted by the State, the UGC Regulations shall not be applicable and the State legislation shall prevail unless UGC Regulations are specifically adopted by the State cannot be accepted."30
22. In the case of STATE OF WEST BENGAL vs. ANINDYA SUNDAR DAS & OTHERS reported in 2022 LiveLaw (SC) 831 at paragraph 31 and 56, it is held as follows:
"31. The conditions of eligibility for holding the post of VC are stipulated in Section 8(1)(a) namely (i) a distinguished academic with proven competency and integrity; (ii) (a) minimum of ten years of experience in a University system of which at least five years shall be as a professor; or (b) ten years of experience in a reputed research or academic administrative organization of which at least five years shall be in a position equivalent to a professor.
xxxxx
56. In view of the decision in Gambhirdan K Gadhvi, even if the provisions of the Act allowed the appointment of the Vice Chancellor by the State government, it would be in violation of the UGC Regulations. The Regulations become part of the statute framed by Parliament and will prevail."
23. In the case of PRAKASH CHAND MEENA AND OTHERS vs. STATE OF RAJASTAN AND OTHERS reported in (2015) 8 SCC 484, paragraph 8 reads as under:
"8. Having heard the parties, we have also perused the written submissions filed on behalf of some of them and 31 have perused the judgment of the learned Single Judge [Prakash Chand Meena v. State of Rajasthan, 2012 SCC OnLine Raj 1898] and the impugned judgment [Dinesh Kumar Panwar v. Suresh Chand, Civil Special Appeal (Writ) No. 1181 of 2012, decided on 1-7-2013 (Raj), 2013 SCC OnLine Raj 3770] of the Division Bench. In our considered view, the issue noticed at the outset must be decided on the basis of settled law noticed by the learned Single Bench that recruitment process must be completed as per terms and conditions in the advertisement and as per Rules existing when the recruitment process began. In the present case, the Division Bench has gone to great lengths in examining the issue whether BPEd and DPEd qualifications are equivalent or superior to CPEd qualification but such exercise cannot help the cause of the respondents who had the option either to cancel the recruitment process if there existed good reasons for the same or to complete it as per terms of advertisement and as per Rules. They chose to continue with the recruitment process and hence they cannot be permitted to depart from the qualification laid down in the advertisement as well as in the Rules which were suitably amended only later in 2011. In such a situation, factual justifications cannot change the legal position that the respondents acted against law and against the terms of advertisement in treating such applicants successful for appointment to the post of PTI Gr. III who held other qualifications but not the qualification of CPEd. Such candidates had not 32 even submitted separate OMR application form for appointment to the post of PTI Gr. III which was essential as per the terms of advertisement."
24. In the case of PARVAIZE AHAMMED PARRY vs. STATE OF JAMMU AND KASHMIR AND OTHERS, reported in (2015) 17 SCC 709, Hon'ble Apex Court at paragraphs 13 to 16 has held as follows:
"13. As would be clear from the undisputed facts mentioned above, the minimum qualification prescribed for applying to the post of Jammu and Kashmir Forest Service Range Officers Grade I was "BSc (Forestry) or equivalent from any university recognised by ICAR". It is not disputed that the appellant had to his credit a qualification of BSc with Forestry as one of the major subjects and Masters in Forestry i.e. MSc (Forestry), on the date when he applied for the post in question, which satisfied the eligibility criteria so far as the qualification was concerned.
14. We do not agree with the reasoning of the High Court that in order to be an eligible candidate, the appellant should have done BSc in Forestry and since he had not done so, he was not considered as an eligible candidate. This reasoning, in our view, does not stand to any logic and is, therefore, not acceptable insofar as the facts of this case are concerned.33
15. In our considered view, firstly, if there was any ambiguity or vagueness noticed in prescribing the qualification in the advertisement, then it should have been clarified by the authority concerned in the advertisement itself. Secondly, if it was not clarified, then benefit should have been given to the candidate rather than to the respondents. Thirdly, even assuming that there was no ambiguity or/and any vagueness yet we find that the appellant was admittedly having BSc degree with Forestry as one of the major subjects in his graduation and further he was also having Master's degree in Forestry i.e. MSc (Forestry). In the light of these facts, we are of the view that the appellant was possessed of the prescribed qualification to apply for the post in question and his application could not have been rejected treating him to be an ineligible candidate for not possessing prescribed qualification.
16. In our view, if a candidate has done BSc in Forestry as one of the major subjects and has also done Masters in Forestry i.e. MSc (Forestry) then in the absence of any clarification on such issue, the candidate possessing such higher qualification has to be held to possess the required qualification to apply for the post. In fact, acquiring higher qualification in the prescribed subject i.e. Forestry was sufficient to hold that the appellant had possessed the prescribed qualification. It was coupled with the fact that Forestry was one of the appellant's major subjects in 34 graduation, due to which he was able to do his Masters in Forestry."
25. It is useful to extract paragraphs 59 to 63 in the case of STATE OF ORISSA AND ANOTHER vs. MAMATA MOHANTY reported in (2011) 3 SCC 436, wherein Hon'ble Apex Court has held as under:
"59. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision-making process remains bad. [Vide Haji T.M. Hassan Rawther v. Kerala Financial Corpn , Rash Lal Yadav (Dr.) v. State of Bihar and Tata Cellular v. Union of India .
60. In State of A.P. v. Nalla Raja Reddy [AIR 1967 SC 1458] a Constitution Bench of this Court observed as under
: (AIR p. 1468, para 23) 35 "23. ... Official arbitrariness is more subversive of the doctrine of equality than statutory discrimination. In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrariness can be waved in all directions indiscriminately."
61. Similarly, in S.G. Jaisinghani v. Union of India [AIR 1967 SC 1427] , a Constitution Bench of this Court observed as under : (AIR p. 1434, para 14) "14. ... absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. ... the rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law." (See also Commr. of Police v. Gordhandas Bhanji [1951 SCC 1088 : AIR 1952 SC 16] .)
62. It is a matter of common experience that a large number of orders/letters/circulars, issued by the State/statutory authorities, are filed in court for placing reliance and acting upon it. However, some of them are definitely found to be not in conformity with law. There may be certain such orders/circulars which are violative of the mandatory provisions of the Constitution of India. While 36 dealing with such a situation, this Court in Ram Ganesh Tripathi v. State of U.P. came across with an illegal order passed by the statutory authority violating the provisions of Articles 14 and 16 of the Constitution. This Court simply brushed aside the same without placing any reliance on it observing as under : (SCC p. 625, para 9) "9. ... The said order was not challenged in the writ petition as it had not come to the notice of the appellants. It has been filed in this Court along with the counter- affidavit.... This order [is also deserved] to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents...."
63. The whole exercise done by the State authorities suffers from the vice of arbitrariness and thus is violative of Article 14 of the Constitution. Therefore, it cannot be given effect to."
(emphasis added)
26. Having applied the aforementioned principles to the case on hand, I have noticed from the writ papers that though the respondent No.2 had sought for opinion from the respondent No.3-University with regard to applicability of API marks, the respondent No.3-University without considering the tenets of 37 letters addressed by the respondent No.2, has communicated to the respondent No.4 to grant API marks and concluded the proceedings and the said procedure adopted by the respondent- University is contrary to law. It is well established principle in law that, when there is variance between the Rules/Regulations and the Notification, the Rules would prevail. I have also noticed that the Selection Committee ought to have applied the UGC Regulations which stipulates marks/criteria/weightage to be adopted at the time of interview and same has been ignored by the Selection Committee during the selection process and therefore, the entire selection process suffer from infirmity.
27. The second limb of the argument advanced by the learned Senior Counsel appearing for the petitioner is that there is a manipulation of marks/overwriting by the aforementioned three nominees of the respondent-University. In this regard, on careful examination of the original marks list submitted by the respondent-Institution would indicate that the Members of the Selection Committee have altered the marks and same is self explanatory and as evident from the marks sheet. Therefore, I 38 am of the opinion that the entire selection process has commenced without following the UGC Regulations, and manipulations in marks list is found and as such, the petitioner has made out a case that, the Members of the Selection Committee have differed from their views relating to awarding of marks as evident from the marks sheet and that apart, the respondent-Institution in a letter dated 16th March, 2020 (Annexure-R) has arrived at a conclusion that there is a discrepancy in the marks awarded by Members of the Selection Committee. Therefore, taking into consideration the totality of the circumstances in the present case, the entire selection process in respect of the Political Science subject is liable to be quashed. In view of the submission made by learned Senior Counsel appearing for the petitioner with regard to prayer No.1, no discussion has been made in this writ petition. Accordingly, I pass the following:
ORDER
1) Writ petition is allowed;39
2) Entire Selection process adopted by the respondents for the post of Assistant Professor in Political Science subject as per Annexure-D is set-aside and the matter is remitted to the respondent No.4-Institution to conclude the entire selection process within an outer limit of three months from today by considering the applications already made by such candidates pursuant to the Notification dated 22nd February, 2019 (Annexure-D) in accordance with the observation made above by following the UGC Regulations;
(3) It is made clear that the respondent No.3-
University shall appoint the nominees to the Selection Committee within an outer limit of one month from today and communicate the same to the respondent No.4-Institution to complete the entire exercise, as stated above.
SD/-
JUDGE ARK