Karnataka High Court
Dr. (Mrs.) Preeti G. Joshi vs National Institute Of Mental Health And ... on 8 July, 1994
Equivalent citations: ILR1994KAR2107, 1994(3)KARLJ571
JUDGMENT Shivaprakash, J.
1. In response to the advertisement dated 1.6.1989 inserted by the first respondent, copy of which is marked as Annexure-C, the petitioner applied to a non-medical post of a Lecturer in Biophysics, since designated as Assistant Professor in Biophysics, which is at item No. 14 in the said advertisement. As could be seen from the advertisement the candidates applying for the said post should possess the following qualifications :
"Qualification: M.D. in Biophysics or a) First or Second Class in M.Sc., Degree in Physics (b) Ph.D/D/Sc., in Biophysics or equivalent from a recognised University/Institution for Non-
medical."
2. it is stated in the Petition that the petitioner had secured high Second Class, securing 59,3% marks, in M.Sc., Examination in physics. She also has Ph.D , in Physics. In addition to the Educational qualification, the applicants were required to have two years teaching/research/clinical experience in the discipline after obtaining Doctoral qualification. The petitioner fulfilled this condition also. The petitioner has stated in the Petition that she has 22 publications to her credit and that she has attended a number of professional International Conferences and presented about 14 papers. She has stated that she had presented a paper in Indo-U.S. Symposium and she was awarded a Prize Certificate.
3. The third respondent was also one of the applicants for the said post of Assistant Professor in Biophysics.
4. In this Petition, the petitioner challenges the selection of the third respondent overlooking her claim. It is the case of the petitioner that the third respondent did not possess the minimum qualification prescribed for the said post. According to her, the third respondent obtained Ph.D., in December, 1988 and did not have two years teaching/research/clinical experience in the discipline concerned after obtaining Doctoral Qualification in December 1988. Therefore, the petitioner contends that the third respondent was not eligible to be called for the interview since he did not have the requisite qualification/experience. The petitioner has made certain personal allegations against the second respondent who was the Director of the first respondent Institute at the relevant time and who has since retired from service. It is not necessary to consider the said allegation against him since the petitioner has deleted him in these proceedings and consequently the appointed candidate is referred to hereafter as second respondent.
5. The only question that arises for consideration in this Petition is whether the second respondent did not have the necessary qualification/experience for the post of Assistant Professor in Biophysics as on the last date fixed for receipt of applications i.e., 31.7.1989.
6. In the Statement of Objections filed by the first respondent it is stated that in response to the advertisement altogether eight applications were received, out of which only three applicants had Ph.D. degree. Therefore, only those applicants who had Ph.D. degree were called for the interview. According to the first respondent, out of three applicants who had Ph.D. only one candidate had Ph.D. in Biophysics i.e., the second respondent. Accordingly, the Selection Committee sent its recommendation for appointment of the second respondent to the said post.
7. The second respondent was on deputation for two years in a University in the United States of America. This deputation of the second respondent was even before his acceptance of the appointment. It is stated that he sent his joining report by telegram and the same was accepted.
8. It is asserted in the Statement that since the petitioner did not possess Ph.D., in Biophysics, the second respondent was found to be more suitable and accordingly his appointment was made. It is denied that the second respondent did not possess necessary qualification/ experience. There is a general denial regarding other allegations made by the petitioner in the Petition.
9. In the Statement of Objections filed by the second respondent, it is averred that the qualification/experience notified in the advertisement "are relaxable at the discretion of the appointing authority" It is stated that in many cases the first respondent had relaxed the qualification/experience to several posts in the Institute. It is further stated that though in the advertisement Annexure-C, the fact that the qualification/experience is relaxable is not indicated, it did not mean that the authority concerned had no power' to relax the qualification/experience for the purpose of selection. The second respondent has given in the Statement of Objections his bio-data his acquisition of Master's Degree, the acquisition of Ph.D., and also his experience. He has admitted that he did not have the requisite teaching experience as on the last date fixed for receipt of the application
10. In the additional Statement of Objections filed by the second respondent, it is stated that the petitioner does not have Ph.D., in Biophysics and therefore the petitioner herself does not possess the qualification prescribed. Therefore, it is stated that the petitioner has no locus standi to challenge the selection and appointment of the second respondent since she herself did not possess the necessary qualification. The second respondent has stated in his additional Statement that soon after his return from the United States he has resumed his duty in the new post. It is also alleged in his Statement that the husband of the petitioner being the Head of the Department of Biophysics has made an endorsement on the application of the second respondent that he could not be considered for selection. However, this endorsement was not accepted by the Director and accordingly his application was considered by the Selection Committee.
11. Sri Ravivarma Kumar, (sic) Counsel appearing for the petitioner submitted that the qualification/experience indicated in the advertisement should necessarily be construed as the qualification and experience possessed by the candidates as on the last date for receipt of the applications. In this regard, he relied on a Decision of the Supreme Court in Dr. M.V. NAIR v. UNION OF INDIA wherein the Supreme Court has ruled that eligibility and suitability of the candidate had to be considered with reference to the last date for receiving the applications unless the date is otherwise specified in the notification calling for the applications. In the instant case, in the advertisement, no date is specified otherwise.
12. The learned Counsel, therefore, contended that since the second respondent admittedly did not possess the necessary experience as on the last date of the receipt of the application i.e., 31.7.1989, the Selection Committee could not have considered his application for the post of Lecturer in Biophysics.
13. On the other hand, Sri K.R.D. Karanth, learned Counsel appearing for the second respondent contended that the power to relax the qualifications/experience is inherent in any Selection Committee In support of his submission, he relied on two Decisions of the Division Bench of this Court in KESHAYYA CHANNAYYA HIREMATH v. THE UNIVERSITY OF AGRICULTURAL SCIENCES AND ORS. 1971 (2) Mys.L.J. 330 and DR. N.B.K. REDDY v. KARNATAKA UNIVERSITY AND ORS. 1972 (1) Mys. LJ. 392.
14. In Keshayya's case, a Division Bench of this Court has ruled that the power of relaxation in respect of qualifications is a power ancillary to the power of appointment itself, and therefore the power of relaxation can be exercised competently only by the appointing authority and since the Selection Committee had the power to recommend persons for consideration for appointment by the Board of Regents, the Selection Committee had also the power to make recommendation for relaxation in specified cases. The Division Bench has further ruled that when the Selection Committee recommended relaxation in respect of any person and the recommendation to relax is accepted by the Board of Regents, the person at once becomes qualified for appointment. In Dr. N.B.K. Reddy's case, another Division Bench of this Court has ruled that where the Syndicate being fully aware of the fact that the candidate recommended did not possess all the prescribed qualifications resolved to appoint the candidate recommended by the Selection Committee, there was an implied relaxation of qualification by the Syndicate. So, the learned Counsel for the second respondent contended that in the instant case it should be presumad, though it is not so recorded, that the Selection Committee having applied its mind decided to relax the qualification and recommended the case of the second respondent for appointment to the post of Lecturer in Biophysics.
15. Sri Ravivarma Kumar, learned Counsel for the petitioner pointed out that in Dr. N.B.K. Reddy's case the very notification indicated that in suitable cases, the University Syndicate could on the recommendation of the Selection Committee relax the qualification prescribed. He, therefore, submitted that since in the case on hand the advertisement did not indicate that the qualifications/experience prescribed are relaxable, the purported relaxation of the qualification/experience in favour of the second respondent cannot be legally sustained.
16. There is no gainsaying that if the advertisements inviting applications for appointments clearly disclose that the qualifications/experience prescribed are flexible and not rigid, and that the Selection Committee has the power to relax the qualifications taking into consideration the relative merit of the candidates and other relevant factors, more number of persons who do not strictly possess the qualifications prescribed would offer themselves for appointment. There would be more transparency in such a selection process and it would not be vulnerable to attack on the ground of arbitrariness violative of Articles 14 and 16 of the Constitution of India.
17. In this context, the learned Counsel for the petitioner invited my attention to an unreported Decision of a Division Bench of this Court in B. NAGARAJ v. STATE OF MYSORE W.P.No. 1509 of 1971 DD 29.3.1971 wherein it is observed thus in a different set of facts:
"A notification declaring that (sic) particular qualification is an equivalent qualification to the one prescribed under the Cadre and Recruitment Rules is, in our opinion, required to be issued before the recruitment is made, but if made at the time of recruitment after the last date prescribed for receipt of applications for recruitment to the said post, it is obvious that persons who would be eligible as a result of declaration of such equivalency would riot have an opportunity of offering themselves as candidates for the said post, which will result in denial of an opportunity in the matter of appointment in contravention of Article 16 of the Constitution of India."
18. In view of the Decision of the Supreme Court in M.V. Nair's case, cited above, it is not open for the first respondent-Institute or the second respondent to contend that even in the absence of any indication in the advertisement the Selection Committee could have relaxed. Since the second respondent admittedly did not fulfil the eligibility requirement on the last date set for receipt of the application, his appointment has to be set aside. Accordingly, the appointment order Annexure-A, dated 30.8.1989 is quashed.
19. It appears that the second respondent has since joined as a Scientist in the establishment of the Institute of Nuclear Medicine and Sciences, New Delhi, retaining lien on the disputed post.
20. The next Question for Consideration is whether a direction could be issued to the first respondent to appoint the petitioner to the post of Lecturer in Biophysics since designated as Assistant Professor in Biophysics.
21. It would be relevant to notice that the petitioner was as a matter of fact selected by the Selection Committee to the said post but kept in the waiting list, which means that in the event the second respondent did not accept the appointment the petitioner had to be appointed. During the period when the second respondent was away in the United States on deputation the petitioner was appointed on adhoc basis to the post of Assistant Professor in Biophysics as is evident by Annexure-E. Even after his return she continued to hold the said post on adhoc basis under fresh appointment orders issued periodically. As on date she is holding the post of Assistant Professor in Biophysics on adhoc basis.
22. In view of the fact that the petitioner was selected by the Selection Committee and kept in the waiting list, it is not open for the first respondent-Institute to contend that she did not possess the qualification/experience to hold the post of Lecturer in Biophysics. As a matter of fact, no such contention is taken by first respondent. Therefore, a direction is issued to the first respondent to appoint the petitioner to the post of Assistant Professor in Biophysics, treating the said appointment as from 1.9.1989. The petitioner would be entitled to all the consequential benefits flowing therefrom.
23. Writ Petition allowed. No costs.