Karnataka High Court
Sri. Mallappa S/O. Shankarappa Rampur vs The State Of Karnataka on 10 March, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
W.A.No.100269/2021 [S-RES]
BETWEEN:
SRI. MALLAPPA S/O SHANKARAPPA RAMPUR,
AGE 42 YEARS,
OCC: LECTURER IN
ECONOMICS (NOW NIL)
R/O: NEAR MALLAYYA TEMPLE
BENNUR R.C. VILLAGE,
TQ AND DIST: BAGALKOT
...APPELLANT
(BY SRI.M.C.HUKKERI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE PRINCIPAL SECRETARY,
EDUCATION DEPARTMENT,
M.S. BUILDING,
BENGALURU-560001.
2. THE COMMISSINER OF COLLEGIATE EDUCATION
SHESHADRI ROAD,
BENGALURU-560001.
3. THE DIRECTOR OF COLLEGIATE EDUCATION,
SHESHADRI ROAD,
BENGALURU-560001.
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4. THE JOINT DIRECTOR OF
COLLEGIATE EDUCATION,
DHARWAD DISTRICT AT: DC COMPOUND,
DHARWAD-580001.
5. THE CHAIRMAN OF
BASAVESHWARA VEER-SHAIVA
VIDYA VARDAKA SANGHA
BAGALKOT-580001.
6. THE PRINCIPAL,
BASAVESHWARA COMMERCE COLLEGE
BAGALKOT-587101.
7. SMT. DR. LALITA
D/O SHIVAPPA CHAVADI,
AGE: 45 YEARS,
OCC: PRINCIPAL (NOW NILL)
R/O: BASAWESHWARA WOMEN'S P.U. COLLEGE ,
MUDHOL, DIST: BAGALKOT.
....RESPONDENTS
(BY SRI.G.K.HIREGOUDAR, GOVT. ADVOCATE FOR R1 TO
R4; SRI. S.B.HEBBALLI, ADVOCATE FOR R5-6; R7 NOTICE
SERVED)
THIS WRIT APPEAL IS FILED UNDER SECTION.4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO THIS
HON'BLE COURT TO, SET ASIDE THE LEARNED SINGLE
JUDGE'S ORDER DATED 07.02.2017 PASSED IN
W.P.No.63562/2012 (LA-RES) AND CONSEQUENTLY
DISMISSED THE WRIT PETITION, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS WRIT APPEAL COMING ON FOR ORDERS THIS
DAY, S. SUNIL DUTT YADAV J., DELIVERED THE
FOLLOWING:
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JUDGMENT
The appellant has questioned the validity of the order dated 26.10.2021 passed by this Court in W.P.No.101558/2021 (S, RES) whereby, the writ petition filed by the petitioner came to be rejected on the ground that the candidates who take advantage of recruitment notification and make application for appointment would be estopped from challenging such validity of recruitment notification after selections have been made based on the accepted principles of approbation and reprobation.
2. The parties are referred to as per their rankings in the writ petition.
3. The facts made out are that the respondent- Authority had sought for filling up of the posts of Assistant Professor in Economics as per the Notification dated 23.02.2019 at Annexure-P. The petitioner was an aspirant for the post of Assistant Professor in Economics, which was mentioned at Sl.No.4 of the said notification and he being competent, applied for the said post. The notification at Annexure-P dated 23.02.2019 and the extract of the 4 relevant condition, which is a subject matter of adjudication in the present petition, is as follows:
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- J¸ïJ¯ïEn ¥ÀjÃPÉë¬ÄAzÀ «£Á¬Äw EgÀÄvÀÛzÉ. ¦.JZï.r. ¥ÀzÀ«AiÀÄ£ÀÄß PÉƸÀð ªÀPÀð£ÉÆAUÉ ¥ÀqÉAiÀĨÉÃPÁVgÀÄvÀÛzÉ. MAzÀĪÉÃ¼É ¢£ÁAPÀ: 11.07.2009 gÀ ¥ÀƪÀðzÀ°è ¦.JZï.r ¥ÀzÀ« ¥ÀqÉ¢zÀÝ°è - ¦.JZï.r. UÉ £ÉÆAzÀt ªÀiÁr¹zÀ°è CAvÀºÀ C¨sÀåyðUÀ¼ÀÄ ¢£ÁAPÀ: 04.05.2016 gÀ AiÀÄÄ.f.¹. C¢ü¸ÀÆZÀ£ÉAiÀÄ°è ºÉÆgÀr¹gÀĪÀ ¤AiÀĪÀÄUÀ¼À£ÀÄß ¥ÀÆgÉʸÀĪÀ µÀgÀvÀÄÛUÀ½UÉ M¼À¥ÀnÖvÀÛzÉ. ¢£ÁAPÀ:
11.07.2009 £ÀAvÀgÀzÀ AiÀiÁªÀÅzÉà £ÉêÀÄPÁwUÉ JªÀiï.¦ü¯ï «zÁåºÀðvÉ ¥ÀjUÀt¸ÀvÀPÀÌzÀÝ®è.
4. It is the contention of the petitioner that he was eligible for the post in terms of Notification dated 04.05.2016 of University Grants Commission ('UGC' for brevity), which provides for qualifications relating to recruitment of Assistant Professors. The relevant Regulations of UGC are extracted herein below:-
"3.3.0 The minimum requirements of a good academic record, 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the master's level and qualifying in the National Eligibility Test (NET), or an accredited test (State Level Eligibility Test - SLET/SET), shall remain for the appointment of Assistant Professors.5
3.3.1 NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions:
Provided however that candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009 or the subsequent Regulations if notified by the UGC, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/Institutions.
Further, the award of degrees to candidates registered for the M.Phil/Ph.D programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances/By laws/Regulations of the Institution awarding the degrees and the Ph.D candidates shall be exempted from the requirement of the minimum eligibility condition of "NET/SLET/SET" for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/Institutions subject to the fulfillment of the following conditions:-6
(a) Ph.D. degree of the candidate awarded in regular mode only;
(b) Evaluation of the Ph.D. thesis by at least two external examiners;
(c) Candidate had published two research papers out of which at least one in a referred journal from out of his/her Ph.D. work;
(d) The candidate had presented two papers in seminars/conferences from out of his/her Ph.D. work;
(e) Open Ph.D. viva voce of the candidate had been conducted.
(a) to (e) as above are to be certified by the Vice Chancellor/Pro Vice Chancellor/Dean (Academic Affairs) / Dean (University Instructions)."
5. It is the contention of the petitioner that the endorsement whereby the application of the petitioner came to the rejected at Annexure-J dated 26.03.2021 observing that the petitioner had not passed Ph.D examination in Economics or NET/SLET/SET examination, is contrary to the UGC Regulations.
6. It is further contended that the order of learned Single Judge is erroneous insofar as the petitioner 7 was entitled to challenge the recruitment Notification, if it was contrary to the Rules and relies on the judgment of Apex Court the case of Dr.(Major)Meeta Sahai v. State of Bihar and Others reported in (2019) 20 SCC 17.
7. It is contended that even as per 2016 Regulations, there is relaxation regarding NET/SLET/SET insofar as M.Phil and Ph.D candidates are concerned and in light of such relaxation, the insistence of NET/SLET/SET is not proper.
8. Learned Additional Government Advocate appearing for the respondent would submit that the Notification at Annexure-P was passed on 23.02.2019 and the Regulations that were applicable was 2018 Regulation of UGC i.e. UGC Regulations on Minimum Qualifications for appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018. Attention is drawn to Regulation 3.0 of '2018 Regulations' and in particular, to Regulation 3.3, which is extracted hereunder:-
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"3.3 The National Eligibility Test (NET) or an accredited test (State Level Eligibility Test SLET/SET) shall remain the minimum eligibility for appointment of Assistant Professor and equivalent positions wherever provided in these Regulations. Further, SLET/SET shall be valid as the minimum eligibility for direct recruitment to Universities/Colleges/Institutions in the respective state only;
Provided that candidates who have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degree) Regulation, 2009, or the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degree) Regulation 2016, and their subsequent amendments from time to time, as the case may be, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or any equivalent position in any University, College or Institution.
Provided, further that the award of degree to candidates registered for the M.Phil/Ph.D. programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances / Bye-laws / Regulations of the Institutions awarding the degree. All such Ph.D. candidates shall be exempted from the requirement 9 of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions subject to the fulfillment of the following conditions:
a) The Ph.D. degree of the candidate has been awarded in the regular mode only;
b) The Ph.D. thesis has been awarded by at least two external examiners;
c) An open Ph.D. viva voce of the candidate has been conducted;
d) The candidate has published two research papers from his/her Ph.D. work out of which at least one is in a refereed journal;
e) The candidate has presented at least two papers, based on his/her Ph.D. work in conferences/seminars sponsored funded/supported by the UGC/ICSSR/CSIR or any similar agency.
The fulfillment of these conditions is to be certified by the Registrar or the Dean (Academic Affairs) of the University concerned.
II. The clearing of NET/SLET/SET shall not be required for candidates in such disciplines for which NET/SLET/SET has not been conducted."
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9. It is contended that as per Regulations of 2018, the relaxation insofar as NET/SLET/SET is only as regards the candidates having done their Ph.D and this relaxation would not apply to M.Phil candidates. It is further submitted that it was always the intention of the Authority not to grant relaxation insofar as M.Phil students are concerned and this was found in the earlier Regulations, which was the subject matter of consideration by the Apex Court in Civil Appeal No. No.871/2018 (arising out of SLP(C) No.2658/2013 - The State of Madhya Pradesh & Others v. Manoj Sharma & Others and draws attention to the observations made at paras-17 and
20.
10. It is also contended by learned Additional Government Advocate that the petitioner having participated in the recruitment process has after announcement of results filed the writ petition. It is pointed out that the results came to be announced as per Annexure-N dated 09.12.2019 and the writ petition came to be filed by the petitioner in April 2021. 11
11. It is contended that in light of the principle laid down by the Apex Court in the case of Ashok Kumar and Another v. State of Bihar and Others reported in (2017) 4 SCC 357, wherein it is held that a party who participates in the recruitment process cannot at a subsequent stage after being unsuccessful challenge the result by way of writ petition as it was hit by the principle of estoppel. Accordingly, it is submitted that the writ appeal be dismissed.
12. Heard both sides.
13. It must be noted that the rules of recruitment prescribing the qualifications as on the date of notification, ought to be complied, i.e. UGC Regulations of 2018. No doubt, learned counsel for the petitioner would submit that it is '2016 Regulations' that would be applicable, however, we find that the stipulation regarding obtaining of NEET/SLET/SET is identical insofar as '2016 Regulations' as well as '2018 Regulations' are concerned. 12
14. Taking note that the notification was of the year 2019, the contention of learned Additional Government Advocate that the Regulations in force was UGC Regulations relating to qualification in recruitment in 2018 needs to be adhered to, is to be accepted.
15. Even if the Authorities themselves were seeking to rely on earlier Regulations as pointed out by learned counsel for the petitioner would be of no avail and it is '2018 Regulations' that require to be adopted as per Regulation 3.3 of '2018 Regulations', which is reproduced above.
16. It is clear from a bare reading of the said provision that the relaxation as regards NEET/SLET/SET is only as regards to Ph.D candidates and is not as regards to M.Phil candidates. Admittedly, as on the date of Notification, the petitioner had not passed NEET/SLET/SET, though it is submitted that subsequently the petitioner has passed such examination, however, what is required to be taken note of is the qualification as on the date of petitioner making his application.
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17. No doubt, the petitioner would contend that the endorsement is on the ground that the petitioner had not obtained Ph.D qualification, however, considering that the petitioner is otherwise not qualified as not having possessed NEET/SLET/SET as on the date of filing of his application, the question of exercising judicial review would not arise.
18. It is also to be noticed that the Apex Court in the case of Dr.(Major)Meeta Sahai (supra) relied on by has clarified that the candidate, who has taken part in the recruitment process would in fact challenge the said process at a later point of time. However, it is clarified at para-18 that such challenge could be made only if the notification, pursuant to which the petitioner has participated is contrary to the statutory rules.
19. In the present case, we find that the notification made, if looked at keeping in mind '2018 Regulations,' the insistence of NEET/SLET/SET found in the Notification insofar as all Post Graduate holders is in 14 accordance with the statutory Regulations and as the petitioner has not obtained such qualification, as on the relevant date the petitioner is not entitled for any relief.
20. Accordingly, we find no merit in the writ appeal and the same is rejected.
Sd/-
JUDGE Sd/-
JUDGE AC/VGR