Karnataka High Court
Dr.Sony S.Hiremath vs Akka Mahadevi Womens University And Anr on 24 February, 2023
1
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO.202950/2018 (S-RES)
BETWEEN:
DR. SONY S. HIREMATH
D/O S.L. HIREMATH,
AGE: 28 YEARS,
R/O PLOT NO.61,
# 10-934/47, MAHALAXMI NAGAR,
OPP. FIRE STATION,
KALABURAGI-585103.
.... PETITIONER
(BY SRI AMEETKUMAR DESHPANDE, SR. COUNSEL FOR
SRI G.G.CHAGASHETTI, ADVOCATE)
AND:
1. AKKA MAHADEVI WOMEN'S UNIVERSITY,
THROUGH ITS REGISTRAR,
VIJAYAPURA-586101
2. DR. CHANDRASEKHAR
S/O MALLAYYA MATHAPATI
AGE: MAJOR, OCC: ASST. PROFESSOR IN
DEPARTMENT OF MANAGEMENT,
AKKA MAHADEVI WOMEN'S UNIVERSITY,
VIJAYAPUR-586101.
... RESPONDENTS
(BY SRI RAVINDRA REDDY, ADVOCATE FOR R1;
SRI VENKATESH C. MALLABADI, ADVOCATE FOR R2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF CERTIORARI FOR QUASHING THE ORDER OF
APPOINTMENT VIDE NO.AWUV/ADM/APP(T)2018-19/0491
DATED 25.05.2018 WHICH IS AT ANNEXURE-K ISSUED BY THE
RESPONDENT NO.1 TO RESPONDENT NO.2 PURSUANT TO THE
NOTIFICATION DATED 27.01.2018 CONSEQUENTLY ISSUE A
WRIT OF MANDAMUS DIRECTING THE RESPONDENT NO.1 TO
APPOINT THE PETITIONER AS ASST. PROFESSOR IN THE
DEPARTMENT OF MANAGEMENT. B) IN THE ALTERNATIVE,
DIRECT THE RESPONDENT NO.1 TO GIVE WEIGHTAGE OF AT
LEAST FIVE MARKS FOR EVERY COMPLETED YEAR OF SERVICE
AS A PART-TIME ASS. PROFESSOR I.E., 10 MARKS FOR 4 YEARS
AND DIRECT THE RESPONDENT NO.1 TO APPOINT THE
PETITIONER IN THE PLACE OF RESPONDENT NO.2, ETC.
THIS PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The decision taken in a far away place, i.e., in the State of Meghalaya, by the Governor of Meghalaya, to recall/withdraw the degrees awarded to the students of CMJ University, Meghalaya, caused ripples in Kalburgi. It also kindled the hopes for the petitioner to seek an employment and the petitioner fancied her chance to be appointed as Assistant Professor in Management studies in the first respondent institution. Hence the petition.
2. The petitioner is before this Court challenging the appointment of the second respondent to the post of 3 Assistant Professor in Management studies at the first respondent University. The petitioner contends that the second respondent secured eight marks for allegedly possessing a Ph.D. degree from CMJ University Meghalaya and since the degrees awarded by the CMJ University are recalled, the eight marks awarded to the second respondent under the head Ph.D., have to be excluded, and in which event the petitioner should be appointed for the post.
3. The petitioner also contends that the first respondent University being a Women's University should have reserved 50% of seats for women. Since no such reservation is provided the recruitment of the 2nd respondent is to be set aside.
4. Brief facts necessary for the adjudication of the case can be summarized as under:
(a) The petitioner holds a Master's degree in Business Administration and a Ph.D. in finance. The petitioner was working as a guest lecturer in the first 4 respondent-University since August 2014. The petitioner claims that she is entitled to be regularized as Assistant Professor. However, there was a notification, inviting applications from eligible and suitable candidates for the post of Assistant Professor and the petitioner also applied for the said post.
(b) The notification prescribed eligibility criteria and the method of assessing the candidates and also specified how the marks would be awarded under different heads.
(c) The second respondent was appointed for the post of Assistant Professor. The marks awarded would also indicate that the second respondent was considered as a candidate possessing Ph.D., and in addition to the marks under the several other notified heads, the maximum possible eight marks were awarded to the second respondent for possessing a Ph.D. The merit list based on other parameters is published before the interview. The petitioner stood at Sl. No.8 in the merit list and the second respondent stood at Sl. No.2. The petitioner scored 37.41% and the second respondent scored 43.76%. 5
5. The petitioner contends that the second respondent claimed to have done his doctorate and thereby was awarded eight marks. It is urged that he is not eligible for those eight marks as the Ph.D., awarded to the students of CMJ University is recalled. It is also urged that the decision to recall the degrees awarded by CMJ University is upheld by the Hon'ble Apex court in a proceeding and though the second respondent is not a party to the said proceeding, eight marks awarded to the second respondent have to be deducted in which event the second respondent becomes ineligible to face the interview.
6. In addition to this, it is also the contention of the petitioner that the respondent-University is a women's university and 50% of the seats will have to be reserved for women and the said prescription is not followed as such the appointment of the second respondent is illegal.
7. The second respondent who is selected has contested the petition and has raised a preliminary 6 objection contending that the petitioner has no locus to maintain the petition. The petition is opposed on the premise that under the notification issued for the purpose of recruitment, the discretion is with the University to notify and invite the eligible candidates for the interview in a ratio of 1:3 or to invite all eligible candidates. The University has exercised its discretion and has chosen to notify and invite the candidates in a ratio of 1:3. Even if eight marks are awarded to the second respondent are excluded, on the premise that the second respondent does not possess Ph.D., still the petitioner cannot stake a claim for the post, as the petitioner does not come within the top three candidates who would be interviewed for the post. Thus, the petitioner has no locus to maintain the petition is the submission.
8. It is urged by the respondents that the reservation is provided to the women in the previous appointments. There are only two sanctioned posts in the specified subject and one post is filled by a woman, thus 7 50% reservation is provided and it was not possible to reserve the post for women again.
9. Since the learned Senior counsel appearing for the petitioner also raised the contention during the course of his submission that the petitioner seriously doubts whether the written tests as prescribed were conducted, this Court had directed the University to produce the OMR sheets to verify whether the written tests were conducted or not. In the said order it was also made clear considering the scope of inquiry before this court and grounds urged in the pleading, court would verify whether the written tests were conducted or not and court would not evaluate the papers. Pursuant to the court order, OMR sheets produced by the University, demonstrate that written tests were conducted.
10. Sri. Deshpande learned senior counsel further urged that while selecting the candidates for the post, the marks obtained in all four categories namely, academic records, performance, assessment of domain knowledge, 8 teaching skills, and interview have to be considered. Considering the requirements to select the candidates not only based on eligibility but also based on suitability, all the applicants who have scored eligible marks should have been interviewed to consider the suitability of the candidates. Thus it is urged that the petitioner should have been called for the interview and should have been interviewed.
11. In addition it is also urged that the petitioner being a woman candidate in service, in the same institution, should have been given weightage while considering the candidature for the post.
12. Sri. Ravindra Reddy, the learned counsel for respondent No.1 would submit that the 50% reservation for women is a policy decision taken by the University and same is not yet approved by the Government, as such the University is not bound by reservation policy as far as reservation to women is concerned. Alternatively, he would submit that assuming that the University is bound by 9 reservation policy, then also he would submit that 50% reservation is provided considering the fact that the 50% reservation is to the post and in the year 2007, Dr. Anita Natekar is appointed and since there are only two posts in the Management studies, the respondent - University is under no obligation to reserve one more the post for a woman.
13. Sri Ravindra Reddy would further contend that in terms of the Government Circular dated 17.07.2017, the merit list of the candidates is to be prepared based on the criteria at Sl.Nos. (a), (b) and (c), referred to in the notification issued for recruitment, which is mentioned as Sl.Nos.1 and 2 in the Circular dated 17.07.2017. By following the said Circular, the University has considered the marks of the present petitioner and the second respondent. The second respondent is selected as he scored more marks than the petitioner.
14. Sri Venkatesh C. Mallabadi, the learned counsel for respondent No.2, in addition to his preliminary 10 objection referred above, would submit that in the petition filed by the petitioner, there is no challenge to the notification inviting the applications for the post of Assistant Professor. The reservation policy is not questioned. The prayer is not based on the 50% reservation policy which is urged before this Court. The petitioner having participated in the selection process pursuant to the notification cannot turn around after the announcement of the result to say that the notification is not in conformity with the reservation policy.
15. The court has considered the contentions raised at the bar.
16. The records would indicate that the petitioner stood at Sl. No.8 in the merit list before the interview. Respondent No.2 stood at Sl. No.2 in the merit list. Even if eight marks awarded to the second respondent are excluded, the petitioner does not fall in the category of the top three candidates who were interviewed by notifying the candidates in the ratio of 1:3. However in such a 11 situation where 8 marks are excluded, the second petitioner certainly falls below the petitioner in the merit list. This being the position the court has to consider whether the petitioner has a right to be interviewed. If the petitioner can establish that the petitioner ought to have been invited for the interview, then the petitioner can maintain the petition and urge that the 8 marks awarded to the second respondent are to be excluded.
17. The notification confers the discretion on the University to notify the candidates in a ratio of 1:3 or to invite all the eligible persons for the interview. The plain reading of the relevant clauses in the notification leads to the said conclusion. The government circular referred to by Mr. Reddy also points to the said conclusion. Merely because suitability is also one of the criteria for selecting, the petitioner cannot raise a grievance that the petitioner should have been invited for the interview by choosing another option available with the University. Such a right is not vested in the candidate. The University has the 12 discretion of choosing either of the two options. If it has decided to invite only 3 persons for the interview, in a ratio of 1:3 which is one of the options available to it, same cannot be said to be illegal for the simple reason that such a decision is permissible in terms of the notification. Thus, the decision to invite 3 persons for one post is a decision that is available in the scheme of things. Such being the position, given the fact that there was only one post, the petitioner being ranked at the eighth position, cannot contend that the 8 marks awarded to the second respondent are to be excluded. This being the position the Court has to hold that the petitioner has no locus to question the appointment of a second respondent on the ground that he is not possessing PH.D. Such a challenge is permissible by the person next in the merit list. Else, such a contention who did not possess the right to face the interview acquires the characteristics of a public interest litigation which is impermissible in law. Merely because the persons next in the merit list have not chosen to question the appointment of the second respondent, it cannot be 13 construed to say that the petitioner who is eighth on the list is entitled to question the appointment.
18. As far as the contention relating to the reservation is concerned it is to be noticed that the notification notifying the seats and the roster is not questioned by the petitioner before participating in the process of selection. The petitioner has chosen to question the same only after failing in the selection process. If the reservation to women is not provided, then the petitioner must challenge the recruitment process by challenging the notification and the petitioner must pray for fresh recruitment process. Such a prayer is not made. The prayer is to appoint the petitioner by setting aside the appointment of the second respondent. Assuming that the reservation policy is not adhered to, then also the petitioner cannot be appointed to the post unless fresh notification is invited reserving the post for women. However, the prayer in the petition is to appoint the 14 petitioner in place of the second respondent which is wholly misconceived.
19. Even on the merits of the contention relating to the reservation, the records reveal that in the year 2007, Dr. Anita Natekar is appointed to the post of Assistant Professor in Management studies. It is noticed that there are only two sanctioned posts in Management studies. Since records are produced to show that one woman is already appointed, the petitioner has not made out a ground to hold that the reservation policy is not adhered to. Under these circumstances, the contention that the recruitment process is not in conformity with that reservation policy is not accepted.
20. For the aforementioned reasons this court is of the view that the grounds urged in the writ petition are not tenable to set aside the order of appointment of the second respondent.
21. Though the contention is raised relating to the validity of the Ph.D., awarded to the second respondent, 15 which is said to have been cancelled/recalled, this Court has not decided anything on the validity of the said degree for two reasons, namely, (a) the Ph.D., is not compulsory for the post, (b) that the submission is made at the bar the Government of Meghalaya has to decide on the validity of degrees conferred by CMJ University in view of the decision of the Apex court, in a petition where the order of the Governor pertaining to the University was called into question. It is stated that a representation is submitted by the Association of students affected by the decision of the Governor. Though no such document is placed before the Court, in any case, the consequence of the petitioner assailing the appointment of the second respondent on the ground that second respondent is not possessing the Ph.D., is analyzed by excluding eight marks secured by the second respondent.
22. This case is decided on the ground of the locus of the petitioner to challenge the appointment of the second respondent on the ground that the second 16 respondent does not possess Ph.D. as the petitioner does not come in the top three in the merit list prepared before holding the interview. However the contention relating to reservation not being provided to women is heard and decided on merits.
For the reasons assigned, the writ petition is dismissed.
Sd/-
JUDGE Sn.