Karnataka High Court
Mr.Mansoor Ali vs The Statet Of Karnataka, on 20 November, 2018
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
1 WP No.108645/2016
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE A.S. BELLUNKE
WRIT PETITION No.108645 OF 2016 (S-KAT)
BETWEEN:
MR.MANSOOR ALI
S/O ABDUL GANI HOSPET KAZI
AGE: 42 YEARS, OCC: LECTURER IN
GOVERNMENT P.U. COLLEGE,
R/O HOUSE 123. 5TH CROSS,
TAJ NAGAR UNKAL,
HUBBALLI-580031.
... PETITIONER
(By PARTY-IN-PERSON)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY IT'S
PRINCIPAL SECRETARY,
DEPARTMENT OF COLLEGIATE EDUCATION,
M.S.BUILDING, 6TH FLOOR.
AMBEDKAR VIDHI,
BANGALORE-560001.
2. THE COMMISSIONER,
KARNATAKA EXAMINATION AUTHORITY (KEA),
2 WP No.108645/2016
18TH CROSS, MALLESHWARAM,
BANGALORE-560003.
3. THE COMMISSIONER,
COLLEGIATE EDUCATION FOR
GOVERNMENT FIRST GRADE COLLEGES,
M S BUILDING, AMBEDKAR VIDHI,
BANGALORE-560001.
... RESPONDENTS
(By Sri.C.S.PATIL, GOVT. ADV. FOR R1 & R3;
Sri R.M.KULKARNI, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 29.04.2015 IN
APPLICATION NO.3116 WHICH FALLS IN CASE NOS.3088
TO 3119 OF 2015 PASSED BY THE HON'BLE KARNATAKA
ADMINISTRATIVE TRIBUNAL, BENGALURU, VIDE
ANNEXURE-G1, INSOFAR AS PETITIONER'S APPLICATION
NO.FG601749 CONCERNED, AND ETC.
THIS WRIT PETITION COMING ON FOR HEARING ON
IA THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:
ORDER
Though these writ petitions are listed for hearing on IA Nos.1 & 2 of 2017, with consent of learned counsel on both sides, they are heard finally.
2. Petitioner was applicant No.29 in application Nos.3088-3119 of 2015 before the 3 WP No.108645/2016 Karnataka Administrative Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal' for the sake of brevity). Being aggrieved by the dismissal of his application by order dated 29.04.2015, he has preferred this writ petition.
3. We have heard petitioner who has appeared in person and learned Government Advocate who has appeared for respondent Nos.1 & 3 and learned counsel for respondent No.2 at length and perused the material on record.
4. Briefly stated, the facts are that the State Government, by notification dated 06.11.2014 on notifying the Karnataka Examinations Authority/respondent No.2 herein as the selection authority to conduct competitive examination for recruitment to the post of Assistant professors in Government First Grade Colleges in the State, invited applications from eligible candidates as per the Karnataka Education 4 WP No.108645/2016 Department Services (Collegiate Education Department) (Recruitment) (Special) Rules, 2014 (hereinafter referred to as '2014 Special Rules' for the sake of convenience). The State Government intended to fill 1298 posts. Thereafter, Karnataka Examination Authority issued notification dated 22.01.2015 regarding recruitment to the post of Assistant Professors in Government First Grade Colleges in the State of Karnataka. The recruitment was to be conducted for the post of Assistant Professor in several subjects including Political Science, in respect of which the petitioner herein is concerned. The subject-wise and category-wise vacancy position was detailed in the said Gazette Notification. There was prescription of age limit and educational qualification as well as details showing equivalent qualifications to claim eligibility for the post of Assistant Professor in the respective posts. Reference was also made to Karnataka Civil 5 WP No.108645/2016 Services (General Recruitment) Rules, 1977 with regard to the other general eligible conditions. There were instructions given with regard to the method of filing applications i.e., by online method, submission of original certificates, examination fees, time table of the competitive examination, place of examination, mode of selection and appointment. A copy of the said Notification is produced by the petitioner as Annexure 'A2' to the application filed before the KAT. The educational qualification prescribed for the said post is extracted as under:
"2. Qualification:
a. Candidate should have passed a Master's Degree in the concerned subject with at least 55% marks or its equivalent grade;
(50% in case of Scheduled Caste /
Scheduled Tribe / Differently abled
(Physically and visually differently abled) categories).
NOTE: The eligibility marks of 55% marks (or an equivalent grade in a point scale 6 WP No.108645/2016 wherever grading system is followed) and the relaxation of 5% to the categories mentioned above are permissible, based on only the qualifying marks without including any grace mark procedures.
b. Applicant should have been declared successful in the "National Eligibility Test"
or "State Level Eligibility Test".
c. Applicants possessing Ph.D. Degree
through Course Work and Evaluation
Process in the concerned / relevant
discipline are exempted from appearing for "National Eligibility Test" or "State Level Eligibility Test".
NOTE: The educational qualifications
prescribed by the University Grants
Commission (UGC) in regulations /
guidelines issued from time to time will be applicable in deciding the eligibility. "
5. The petitioner sought to apply for the post of Assistant Professor in Political Science by online method. The date of commencement of entry of application through online was fixed on 28.01.2015 and the last date was 28.02.2015 and 7 WP No.108645/2016 the last date to pay the fees in the Post Office was 02.03.2015. The case of the applicant does not concern with the educational qualification concerning Ph.D. Degree, as admittedly the petitioner has not pursued the said Degree. Nevertheless, his application before the Tribunal was filed along with other applicants who had grievances with regard to the prescription of Ph.D. Degree qualification. However, the grievance of the petitioner was that the educational qualification prescribed by the University Grants Commission (UGC) and regulations or guidelines issued from time to time being applicable, the Notification calling for applications dated 22.01.2015 ought to have spelt out those guidelines clearly as they are applicable, in which event, even if a candidate possesses a M.Phil. Degree prior to July 2009, he or she was entitled to be considered for the said post, but the qualification prescribed under the said notification 8 WP No.108645/2016 was silent on possession of M.Phil. qualification. The other grievance of the petitioner before the Tribunal was that the petitioner had Masters Degree in Political Science with marks above 55%. That he had appeared in the National Eligibility Test (NET) in December 2012 and as per the marks card, Annexure 'A2' to this writ petition, petitioner has secured 46.29% percentage and therefore, he was eligible to apply for the post, but his case was not considered as he had not produced the Certificate for having passed NET. In the circumstances, the contentions raised by the petitioner along with other applicants were considered by the Tribunal and the Tribunal by the impugned order dismissed his application by placing reliance on the judgment of the Hon'ble Supreme Court. Being aggrieved by the said order, the applicant has preferred this writ petition.9 WP No.108645/2016
6. We have heard the petitioner who has appeared in person and learned Government Advocate for respondent Nos.1 to 3 and learned counsel for respondent No.2 and perused the material on record.
7. Petitioner has made a two-fold submission, firstly he contended that respondent No.2 authority while issuing the notification has not properly fixed the eligibility criteria for recruitment to the post of Assistant Professor inasmuch as M.Phil. Degree in a particular subject ought to have been included in the said eligibility criteria, instead, the said Notification has excluded the said educational qualification. That the petitioner has M.Phil. Degree in Political Science which he had acquired prior to 2009 and therefore, he was entitled to be considered on the basis of the said Degree. He next contended that the petitioner has cleared NET examination as per 10 WP No.108645/2016 Annexure 'A2' marks card appended to the memorandum of writ petition, wherein he has secured 46.29% and merely because UGC has not awarded the Certificate to him as yet, the case of the petitioner could not have been ignored. He submitted that as a result of the inaction on the part of the selection authority and the order of the Tribunal, he has been deprived of an opportunity of being selected as an Assistant Professor in Political Science in any First Grade College. He therefore submitted that this Court may interfere in the matter and direct the respondents to consider his case for appointment as an Assistant Professor in Political Science.
8. Per contra, learned Government Advocate and learned counsel for respondent No.2 in unison contended that the prescription of education qualification or any other eligibility criteria for a particular post is left at the hands of 11 WP No.108645/2016 the experts in the field of either rule making authority or the selection authority and this Court may not in exercise of power under Article 226 of the Constitution of India prescribe any particular educational qualification as appropriate for a particular post. That the petitioner herein cannot be aggrieved by the non-stipulation of a particular educational qualification as an eligibility criterion for appointment to the post of Assistant Professor. In the instant case, there are three separate criteria mentioned in the Notification dated 22.01.2015 and if the petitioner fell within the scope of the said criteria, his case would have been considered. Since the petitioner did not possess the Certificate for having passed NET, obviously, his case was not considered. In the absence of there being any evidence to show that he had cleared the NET, the recruitment authority could not have considered the case of the petitioner herein, although he was permitted to 12 WP No.108645/2016 apply manually pursuant to the interim order passed by the Tribunal. Therefore, they submitted that there is no merit in the Writ Petition and the same may be dismissed, particularly having regard to the fact that the recruitment process has been concluded and the selected candidates have occupied the respective posts.
9. Having heard the petitioner in person and learned Government Advocate for respondent Nos.1 & 3 and the learned counsel for respondent No.2, at the outset, we note that the grievance of the petitioner was two-fold as discussed above. Petitioner not being a Ph.D. Degree holder was not really concerned with the grievances considered by the Tribunal with regard to Ph.D. Degree holders. However, we would consider the grievances of the petitioner in this writ petition.
10. As already noted, the petitioner has made a two-fold grievance with regard to non- 13 WP No.108645/2016 consideration of his case in the recruitment process. Firstly, it is contended that M.Phil. Degree in Political Science which petitioner possesses ought to have been included as a criterion for selection to the post of Assistant Professor in Political Science or for that matter any of the subjects in respect of which the recruitment had taken place. In response to this, the submission of the learned counsel for respondent No.2 as well as learned Government Advocate is that the prescription of eligibility criteria whether on the basis of age, educational qualification or otherwise are best be left to the recruitment authority.
11. As per the Notification dated 22.01.2015, there is a three-fold eligibility criteria. First is that the candidate should possess a Masters Degree in the concerned subject with at least 55% marks or its equivalent grade; second is 14 WP No.108645/2016 that the applicant should have been declared successful in NET or State Level Eligibility Test (SLET) and the third is if the applicant or a candidate possesses Ph.D. Degree through course work and evaluation process in the concerned or relevant discipline, such a candidate is exempt from appearing in NET or SLET. Therefore, it is a double qualification which must be possessed by a candidate. One is to possess a Master's Degree in the concerned subject with at least 55% marks which the petitioner must possess and to be declared successful in the NET or SLET. Since the petitioner is not a Ph.D. Degree holder, the exemption does not apply to him. The fact that the petitioner does not have any documents to evidence the fact that he is declared successful in NET is one of the aspect of the matter. But, petitioner cannot insist prescription of M.Phil.
Degree as a qualification in addition to Master's Degree. Further, being declared as successful in 15 WP No.108645/2016 the NET / SLET is a mandatory requirement which cannot be waived by the recruitment authority. The petitioner who is an applicant or candidate for being recruited to a particular post, Assistant Professor of Political Science in the instant case, cannot contend or insist upon the nature of the educational qualification that could be prescribed by the recruitment committee or the Authority. If the petitioner has the requisite educational qualifications which are prescribed either by the Rule making authority or by the recruiting authority, then he would acquire the eligibility to apply for the said post. In the absence of not having any eligibility to acquire the said post and so as to make up for the ineligibility, petitioner cannot insist that any other Degree which the petitioner possesses must be an eligibility criterion for consideration of recruitment to the said post. Therefore, the petitioner cannot contend that the recruitment authority ought to have prescribed 16 WP No.108645/2016 possession of an M.Phil. Degree as one of the eligibility criteria while considering the recruitment to the post of Assistant Professor.
12. In this regard, we would place reliance on the judgment of the Hon'ble Supreme Court in the case of B.C.MYLARAPPA Alias Dr.CHIKKAMYLARAPAV Versus Dr.R.VENKATASUBBAIAH AND OTHERS, reported in (2008) 14 SCC 306, wherein it has been held that the High Court exercising jurisdiction under Article 226 of the Constitution of India, cannot direct the experts in the field or the recruitment authority to prescribe a particular qualification or add to or delete a qualification already prescribed. Hence, there is no merit in the said contention.
13. Petitioner next contended that although he has been successful in NET, he has not been in a position to submit the certificate issued for 17 WP No.108645/2016 having been successful in NET and in lieu of the same, he has produced marks card which is at Annexure 'A2' to the memorandum of writ petition which is the computer generated statement showing that he has secured 46.29% in three papers. Same has not been accepted by respondent No.2 for the reason that Clause 2(b) states that an applicant should have been declared successful in NET or SLET. For declaring a person successful in the said post, there must be a Certificate which ought to have been issued to him. Mere production of marks card showing the appearance in NET is not sufficient. In the absence of there being any Certificate declaring the petitioner successful in NET, respondent No.2 / authority were right in not considering his case for selection to the said post.
14. The contention that educational qualification prescribed by the UGC, any regulation 18 WP No.108645/2016 or guidelines issued from time to time, are applicable, as given in the note appended to the educational qualification, ought to have applied, is noticed only to be rejected. The same is only to be considered in the case of there being any doubt with regard to the applicability of the educational qualification. In the instant case, the prescription of two fold educational qualification is clear and in the absence of a candidate possessing either or both of the said qualification being ineligible to apply for the said post, would clearly imply that the UGC regulations or guidelines would have no application. In the circumstances, we do not find any merit in the contentions raised by the petitioner.
There is no other contention raised by the petitioner.
The writ petition being devoid of merit is dismissed.
19 WP No.108645/2016
In view of the dismissal of the writ petition, applications also stand dismissed.
SD/-
JUDGE SD/-
JUDGE RK/-