Karnataka High Court
Dr Anant L Zandekar vs The State Of Karnataka Rep By Its ... on 27 January, 2010
Bench: K.L.Manjunath, Aravind Kumar
IN THE HIGH COURT OF KARNATAKA CERCUIT BENCH AT DHARWAD DATED THIS THE 27"' DAY or JANUARY 2010; [ BEFORE THE HOl\l'BLE MR. JUSTICE KL'. A AND THE HONELE MR. JUSTICl£1v:A'BAVlND. w.A. No. 83;/20os(sel;REls~)ep A Between: I Dr. Anant L. Zandekar, A S/0 Lalappa D.Zandel§ar,f's't' , Aged about 40 years, , Resident of F~l3p,_Vl\lea;r"(}:3_eVst HQ'use, * . Pavate nagar, :Karnatal§a Urrh/'ersity'CampV1ls, Dharwad-3, District Dhaiwad; -. ' ' * 2 " p ' " - Appellant (by Sri S.P. Kulkarnig Advocate"fQr't'Ramachandra A. Mali, Advocate) ands. 1. The" Stateélofiiiarnataka represented by its llflecéfetary t'o.V'GOfV~e*fnrnent, Department of Ea"u_<:'atior_1(Cijllegiate), M.S. Building, _ Bangalore-56'0 001. A '4' files -lfiarlnataka University, _ '' Pavate Nagar, Dharwad--580 003, ' Dlstrlct Dharwad, represented by its Registrar 3. Dr. Lokesha s/o Kalyanaiah, Major, Reader in ?.G. Department of Ancient Indian History & Epigraphy, Karnataka University, Pavate Nagar, Dharwad-580 003, District Dharwad. 0 4. The Board of Appointment for the Post of Reader, Ancient Indian Historyf . Karnataka University, Pavate Nagar, Dharwad-580 003, Dist. Dharwad, Represented by its Chairman. 0 ' . ._ -V "'--. _ 0 e -- Respondents
(by SriC.S. Pati1,A.G.A for RI,' By Sri I.G. Gachchinamath, Advocate ,~ Respondent No. 3 and 4 -- served) ii 0 This Wm App_eal_:l,:is-.filei=.d" 4;¢r High Court of Karnataka Act, 1961 lprayiing to" se't:. aside the order dated 31.03.2008 passed in W.P. No.5'44£_38/20008., 0 This appeai iconiiinig-~.i,o1i.i:lcr:preliminary hearing on this day Aravind Kumar} J,0'deliVe_rec¥.'pt--he"fopllo'wing judgment. Ed ment 1;, iiTliieijudéiiient"passed in W.P. No. 4458/2008 dated 31.03.2008 . ,9 passed' Judge is assailed in this intra court appeal filed Vu/S 4iofth'e,V.Karnataka High Court Act. .1 0' Thetfactslin the nutshell are as follows:
Second respondent herein published a notification on 24.12.2005 calling for applications to the post of Reader in Ancient History in Karnataka University amongst calling for other posts. The last date for submission of ap_plieat'ion yvas 28.01.2006. On 27.01.2006 the appellant stibmiittied. aipplicat.ioon'to_llthell' post of Reader in Ancient History and Epigraphy.' came to be issued by the University datedil5.,_Vl2.2O0--6_to the earlier notification and readvertised the'Tpostsf-,'a.slilifliéiéklog posts. it is contended by the petitione.r thatllhe' call letter from University for interviewdanii sin_¢_¢' he 'd_id._'no_t receive the same he approached this' Comttl seeking for a Writ of Mandamus to consider-thle-appliication of the appellant to the post of Rf3'3d€1f ifiii Indliart---------}~~iistory under Scheduled Case Rural category'; l':et.ition came to be disposed of by this Court by lmiiorder dated30V_.ill2l00V7 whereunder it was held that the concerned
2 " 'av;iti1ori'ties are 'empowered to conclude the proceedings strictly as per t.ten_ns~ and conditions stipulated in the notification dated (Annexure-A) and in accordance with the relevant provisions of the statute. By virtue of interim order granted on 10.05.2007 petitioner participated in the interview heldiwon 11.05.2007. The Board for Appointment constituted _ Karnataka University Act 2000 consideredmthe appiic-ationldof-ii '= applicant and also others including third respondent'ic»to"~the Reader in Post Graduate Department iiov'f'~.A'ncie'r1t VIrid_iVanVH:isst'er§,r 'and * it Epigraphy, Karnataka University, "and il5y=-order dated 26.12.2007 (Annexure-R) selectediithe 3'? the said post.
3. This selection came to belassai.led.isinf'WE. no. 4458/08 by the appellant herein \iiIhere;1ndicirvitheiappointinient of third respondent to the post in question it was contended that third respondentydid not possess requisite notification and the Board of Appointment considered the matter placed before it and in 'J2pp_deferericei'iito' produced by the appellant herein the i'7Corr:rnitteeliiproceedied to select third respondent and accordingly 2 tioriquashing the said appointment and also a further prayer to select the appellant in place of the third respondent.
4. The learned Single Judge by order dated 31.03.2008 in W.P. No. 4458/2008 after perusal of the rnaterials placed before it carne to the conclusion that third respondent (selected candidate) more marks in the qualifying examination and had alsojlie vposrsessed more experience in teaching and did not accept the-_. pleajliput forward, by the Writ Petitionerl appellant and accordingly Petition. It is this order which is now assailed in the presentvpappeal.
5. We have heard Sri Kulieami, jpcoliinsel appearing for the appellant on behalf of Sri Ramachandral ll/Ia;l'i.,Vv.'r'i~VV<i;fvtI_t'37'cate and learned Government; Advlolcaiae 'respvondent no. _1 and Sri Gurudev Gachchinamath,learned V cou:is"e:l,rVll4appearing for respondent no. 2. Though "r_§«e'spondent"' 3: and 4 are served have remained unrepresented. up .' r,,,u __ V6. Stibmislsiotiis learned counsel appearing for the appellant _ are.sLumna1'i.sed as follows: .
(i)
(ii)
(iii) 6 What has been prescribed under the notification Annexure-A is Post Graduation in MA. in Ancient indian History and Epigraphy and third respondent was possessing Graduation Degree in Ancient lndian History _ only and thus did not fulfil the initial criteyria.
That the marks to be awarded as per'1«sub_'_lSectionfol) Section (7) of Section 53 of»Unix/ersity._Act_has':..;riot" been " it awarded by the Selection' .Comnri'ttee_fanlde.thus tlie-selection of third respondent is liable to be lseltfaside.__.__"- The material pl~acegd:with__ regard 'to:"th.evVp_ublication of articles and research -»..bye.vl4appe*llant has not been taken into consideration. Appointment and hence the order '~ of of 3'6 resp-endent is liable to be set aside.
In support submissions learned counsel appearing for the l"'appelVl'antgwouldl:' rely upon the following decisions of the Hon'ble "h::Suprernel "Court in the case of District Collector & Chairman, .V_'lVilii:ofia_garam Social Welfare Residential School Society, n Vizitmagaram and another Vs. M. Tripura Sundari Devi reported in (1990) 3 Supreme Court Cases 655 by drawing our attention to paragraph no. 6 of the judgment. He also relies upon the the Hon'ble Supreme Court in the case of Mohd.
Aligarh Muslim University & Ors. Reported! in W
8. Per contra, Sri Gurudev Gachchinarnath; lea»n'led,:4_couinsei appearing for second respondent would that perusal of the two applications would cleiaitliiri' that 'appellant herein had secured Second Class in it/[_._A. on' contraryiitheiselected candidate had secured M.AtWand hence on comparative merits of the "'.:wo_ selected candidate, i.e., 3"' respondent stands on at bettier footing and hence merit alone being the criteria, the contention of the learned petitioner's counsel is sought to be repel~leid.,'He'wo_ul'd'also submit that contention raised now in the lapppeal withii1'egiardi to the articles and research work said to have been '1.p'uhilshed'ihaving not been taken into consideration, is contrary to the it draws our attention to the very application filed by the
1. Whether this Court in exercise of its jurisdiction under Article 226 can substitute the view taken to that of by the Selection Board and if so what orders are to be passed?
2. Even if the grievances of the appellant is scrutirii.aedjV'b:j/ Court whether the appellant can be torbe tnore -rneriVtorior1sl"« comparatively to third respondentwho ihahslheen selected'?
10. Point No. 1.: in supportkdf cca_I1te'ritipon'*with regard to the assessment of relevant merits, le'arhed'pcounsel Sri.K'tillkarni had drawn our attention the jAudgntevn'tsvV_of thewHon'ble Supreme Court in the case of Districts Cotlleeitporl'&l:Clrairman, Vizianagaram Social Welfare Residential Selioal Staciety, Vizianagaram and another Vs. 'Devi reported in (1990) 3 Supreme Court Cases Vs. Aligarh Muslim University & Ors.
_Ti"..}§eported 31R SC W 3755. We find that in so far as the first '._'_'case«inarr1el'y. Tripura Sundari Devi's case is concerned the Selection ' -lig'C0i'rimittee while considering the relevent merits found that the 10 respondent having a Third Class P.G. Decree was selected___ and appointed inadvertently without scrutinizing the copies of certlificaitiespp and during the course of scrutiny of original certificates-tit."wias.::foi.i:id_"'_' it by the Selection Authority that the responderit"therein--.was of qualification and as such candidate therein iwasrlot "to ';-ioinll' service and this action which was challlengedl"the iliaggrieved selected candidate though 1Higih"(f¢,urt, was not accepted by the Hon'.ble Apex order of the authorities came present case is concerned it herein that the selected candidate didl*n'ot-- with regard to the Post Graduate. The appellant is with regard to non po:s'sessing':g_:tiif qualiiicati-on'with regard to Epigraphy. What has been'preiscribedtiié"the--..notification is with regard to the PG. in jilifiuicient lridian and Epigraphy.
is seenirom the application filed by the selected candidate, only possessed Diploma in Epigraphy but was also ll Lecturer in the same College with 8 years experience in the subject of Epigraphy also. Apart from that the selected candidate had possessed First Class in MA. by securing 63.5% marks as against _ herein who had secured Second Class in lVI..A.,. _Henc_--e'th'e ii "
Tripura Sundari Devi supra relied upon bylthe not be applicable to the facts of the pre's_er1t_pcaseI .
12. In so far as the second jzgdgment', l1'£Jphd.iliSol:rall2 Khan 's case is concerned, the Selection.':Cornrnitt.e:e'~ .duri:§g the stage of selection and during; *'theg1._rnid way sevlect:i'on..__Changed the essential qualification ajcriteilfiawifrorrilliiswliat"waslaid" down in the advertisement and it is on this particular ground_l:_Ho.n'ble Apex Court held that what has been pj-jbliished in the Vadvvertisernent cannot be altered not only to the__dietemjin:arit_ the non selected candidates but also to the detern1'inant to 'ca;n.dijdates who are similarly placed and the selection _la._\2_\(asVhnot alceeptedl. In the instant case we do not find that such a 'fisituationl Chas arisen. Both candidates namely the candidate selected, ' third respondent and the appellant who was also an applicant W 12 admittedly possessed M.A. in Ancient History. On perusal of these two qualifications, Selection Board found that the third respondent is possessing higher marks namely 63.4% than that of the appellant'in MA. and accordingly accepted the claim of the third . selected him. Hence, we are of the opinion that Mohd..lSahra'o lKhan's;_ K '' case referred to supra is not applicable to theniipreisfleritilcase Vii
13. In the judgment of the Horfble the; case of Dalpat Abasaheb Solunke ahd'-ralthei-.s Mahajan and others reported in (1390) :'»Cases 305, has circurnscribedvlthescopes of 3§1idicial:l.'reVieiyhyith regard to appointment and selection. is held'bylltheiriordships as follows:
" 12. It will ;'l'r'i'14!.§' appear that apart from the fact that the High Court of the two appointees in one, though their appoihtments 'are_~v_noti'.;assailable on the same grounds, the court has lfalsogfoundl' it 'rurcelssaty to sit in appeal over the decision of the 'Cforninittee and to embark upon deciding the relative llfmerits of the candidates. It is needless to emphasise that it is not the 52%"
function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or--not has to be decided by the duly constituted Selection has the expertise on the subject. This Court has no T he decision of the Selection Committee can be.interfei--ed'with'-onlyC f on limited grounds, such as illegality'o::patent- material iliryregularitjk in the constitution of the Committee or_u'its_procedure:vitiating the selection, or proved mala fidesiiaffectingiftheselection etc. It is not disputed that in the present case constituted the Committee mane the relevant statutes. The Committee consisted of experts it selected the candidates after going, all, the 're:'e-v-ant material before it. In sitting in appealpvg);-"'thezseleetion so made and in setting it aside on the {ground of.4__tlze_.so_c.--alled comparative merits of the candidates as S S' by thcifourt, the High Court went wrong and exceeded its V" « _ jurisdiction"
14
It is not the function of this Court in exercise of its power under Article 226 of Constitution to hear the grievances of the aggrieved party as though appreciating the same in an appeal from of the Selection Committee to scrutinize the ineritsnf 'candidate'i C which exercise has been done by the Universii.-typ ivnithie._in~stant».i_caae.f Hence question no. 1 formulated hereinaboive has toii"n§:v.answ%ered.Viit» against the appellant.
14. Point No. 2: Though i"v.iie-.haive-.ipj.anisweredgquestion no. 1 formulated hereinabove:holdinigiithatiit not '~bc=;iiiiv*viiithin the scope of judicial review to' the~._rnerits and demerits of the rival candidates, onithe content'iwonsii'1=aise"d by the appellant's counsel to contend that"th.ird respondent. did not possess requisite qualification weare jperforcedp to reconsider the said claim and on such scrutiny we find thati.sa.ridicon.t_ention also requires to be rejected for the following reasons.
is seen from the applications produced by the appellant herein third respondent that appellant herein has secured Second Class in go 15 PG. Degree, i.e., M.A. in Ancient Indian History, Eph (Epigraphy) in the year 1995 from Karnataka University, Dharwad. On comparison it is observed from the application of the third respondent~«.wih*iehc-is Annexure-L at column no. 8 he has secured First_Clas*s.VD~egree in ._ MA. in Ancient History and Archeology frorinflthepii Mysore from the Departrnent of Histoiygpandii ArcheoloV:gyV..;i'n_iyear June 1996. It is also noticed from theyp.eifu,s_a'l~~..of the column that the third respondent has secured' from the same University, i.e., Mysoie by securing First Class that third respondent had published ceirtainpioriginal-At.:researcl2 pwork and said to have got it published in the iNational'v._and._reputed journals as per enclosure-II to tliesaid apidlicpationpi """
l6.ii' cor§ti*apthieelap13ellant in column no. 12 of his application had ii'v.iii""'contended,__that~ published two articles and two books and at _ .. ;pfige:"'1}Q.Vg4 in the column of enclosure the same does not find a place. Board of Appointment on perusal of the enclosure to the 16 application and by considering relevant merits of both the candidates, has come to the conciusion that third respondent is more meri.to-rious than that of the appellant. This finding of fact cannot be. even on reappreciation of the contentions raised in the.apll_peal;c.i.:" _ 9
17. in so far as the contention with regardpiito notadherii;ig..t'o'._VV provisions of sub section (6) and (7) 53" o.f.t_hc. ctjnivoiicity Act, we are unable to accept the'*~cont;entio1*iillgfloif"the leairneid counsei appearing for the appeiiant. Thougliiearned coiiriseE.iappearing for the appellant in ordertoéirbuttressi,his has produced a comparative i.statemen't_--i self assessment basis) to contend that marks assignedtby 'the'tSe¥:_e'ctiVoiiiCommittee is not in consonance with the prpvisti.ons ofs1§biiSection (o) and (7) of Section 53 of the Act, .}i?1l§lt§~.toV beirejecvted __for the simple reason that under the category of teaching'.expeirieneelfthe appellant has got himself assigned 10 marks iconiparison; to the third respondent's teaching experience by
5._i_:'as_signingi""'8 marks. To substantiate this claim learned counsel . 'iiciilapiplearing for the appeilant has taken us to the service certificate said 17 to have been issued by S.J.M.V. Sangha's Arts & Commerce College, Hubli which is at Annexure K and K1. On perusal of thesetwo certificates we find that appellant claims to have ser_\-jeti _ institution from 1999 to 2006 (by first certificate) nttti~nein'iiioti2 to ~ 2007 (by second certificate). When he clia-irns_j_'to:_'ha'vei iinyefliéi same institution we are unable to see'e.itiier rhyme or _reason 'as.to'why * ' two certificates for the same period st:-£'ti1fi.é'~tO"*~be issued--..and without going to the tnetits of the eiaint 1fr1ade..5i.in'de_ri ith'e..:s'ai_d certificate we find that third respondent. had 'i.ni"tifactv_'wf0rking in the Very institution for the _'*cornparative statement prepared by appellant ac:c'epted. In so far as the contention with regard to the rpnhtieationnttithe journals the appeliant has failed to'.,%,n:ye.:ntaterial"eitirer before the Board of Appointment, or before the before this Court and hence this ground also *.__i"'d'ces not 'iTi.€1'itv'CQtl:S1deFafi0n and accordingly it is rejected. Hence C it 2 forrriulated hereinabove is answered against the appellant eh_oidiing"that appellant does not possess more merit than the third it . . _ K irespiondent. Accordingly the following order is passed. 18 Order The appeai is hereby dismissed. N0 order as to C0s_t;*_§I"' ' ~%d/~ EEEDGE bvv