Karnataka High Court
Shivanand vs Gulbarga University on 19 November, 2009
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
2 3. GANAPATH SINGH GANGARAM SINGH C/O.J.G.HAZAR1, BEHIND sHANKARI,'II'IC,_' _ * TEMPLE, GUN.) COLONY, GULBARGA' R.EsIéoN I it (By Sri ASHOK PATIL, ADV. FOR R3) 3 ~ WRIT APPEAL Is' 'I?_ILEI:5-I."U,/Vs ..3THEf* KARNATAKA HIGH CoURTfAcT PRAYI_'NG'; To SET ASIDE THE ORDER I>AssEI:'>-.,IN.._THE' WRIT _I3>ETITIoN NO. I9o15/ 1999 DATEI) l_.'//6'/'a«f2:4OO'4.,,é This appeal fo.r._:lV1'd.:rthjer hearing this day, SHYLENDRA K:UlVlAR J ;',._delivered.v the following a post graduate degree in Ciomputer"Appliea'tions,' i;e. M.C.A. and who had been certifiedtby the respondent--Gulbarga University
tojghvave cornpletedlthe post graduate degree in I Class . Ww_ith_ distinction and had responded to an advertisement very University, inviting applications, aurnong 'others, to the post of Lecturer in M.C.A. " Department as a teaching post, in response to the 'notification dated 22.5.1998 that had been issued by l the University (marked as Annexure--A to the writ petition).
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2. The appellant was not:'siuiCce.s&si7ul effort to get appointed as a lecturer in u University, notwithstandiiiigj'this 'for the reason that the . to «appoint the 3"' respondent, a persoi1ii_ho\1~g_fi{ig I47/iT¢s:tv".igra.duate degree in Mathematicsli for 'glaiiiperson having qualificat'id'n__ on the premise that- v.::haid'~::a..v'l\/Iaster's Degree in the 'relevant ii was such appointment issued in faiiyour of theV._.$"" respondent pursuant to the resolution dated 17.4.1999 passed by the Syndicate ._ appellant had filed the writ petition, gw.P. _No;.i9095/99.
~~ The appellant contended in the writ petition Vgithat 3" respondent was not a person answering the qualification which is the primary requirement for the post of Lecturer in MCA Dept. as indicated in the notification;that he (3rd respt.) had a post graduate degree in Mathematics and did not have a post 4 graduate degree in Computer Applications, and onppthe other hand. petitioner possessing the graduate degree and having passed distinction, should have been the post.
5. The learnedzsingle "l'ie.ard.lthe writ petition and the of held that the words 'r'elevai;:g- means qualificatioiilv»for:3' as per U.G.C. norms, mean only a post graduate' Applications subject, but even a post gratltiatevdegree in Mathematics is also a su:bj«ect_lA\tvhich be understood as 'relevant subject' ' for~t.h"e._lpi_1rp.ose of appointing a person as Lecturer in at the University, and such being the View ~~0i";.tlie Board of Appointment, an expert body for Selecting suitable candidates who had considered the applications of the petitioner as well as 3rd respondent to the post of Lecturer in M.C.A. Department of the _/"'»"
5
University, the appointment pursuant to of the Syndicate cannot be characterised' _« or suffering from any defect, ~:
View that it will be very t1nreasonabl.e t;o subject' to mean only Applications, and it ~.__\flvou=ld" u:ra._theriirrational to conclude that non¥ni€:nt.io't§'in_s§ the subject Mathenizttics_ a the conclusion that it was degree in Computer Applicat.iVon:s~Vytrlfiiifh vxfasjivtlie*~t]1.1a§lificati()n prescribed for a perso1i-- post of Lecturer in M.C.A. Courseanld the matter, dismissed the writ p'etition.' ._ ' ' V being aggrieved by this order pl has filed this appeal, not only for setting aside the impugned order but also for quashing f,1'_l€".:.T€S()lLltl()l'l of the Syndicate insofar as it relates to Happointnient of the 3"" respondent to the post of Lecturer in M.C.A. Department, and a further direction 7 University invi1in_,<g; the applications for the of lecturer in terms of /\nnexure~A to the writ.«§jetitiofn_,:' we' . find the action of the Léniversityflto be niost:s.ulr*prisi11,g."
illogical and Sl1(i)("l{li'ig our cc)nscieiicectcfo .t'h--e f
9. University invitedllaniilicattihoiis 'for the' post of Lecturer in (eogtiri pute-1»-anpliizationlls'with;requisite qualification being the relevant subject. 'l'he of lecturer and the quaiil?1{,§at_i:;i'i-"coiiicl:iVt§..oi*~: reference to the post of lecture éis'1::,;ncier;-__ l
-- G1J.lV;l--$l§i%_t:}'A._ llA3'i"i.l'»*'i£RSi'lY. GULBARGA NO.GUG/ .Xl)M 1 / 98 --ElS;:'i_/ Administrative Branch 5 ' _ ._ "JNANA GANGA"
----- Dated 22.5.1998 N ([)'l'l Fl CATI ON A ~A'p-{)licait~i,c»ns in the ;,)1'esc1'il:)e(l form in eight sets are invited "from qulaliii-ecAle1= caiiditlaies of Indian nationality for the following teacl1i11.g~;)_os.--ts in '~.';ii'l()HS Pt}Departnients of this University. The applica'tAion's togetluw with ii<e<~essa1jV documents should reach the Registrain C}ull)am;: l'ni\+»rsi1_v. Giill;)arg'a«585 106 by registered xpo_st on or befon: i<fi>.7. 1998. Incomplete applications and .app=l.iCations 1*e(>ei\'e<ei ;iil("i' the due date will not be entertained. 'Name of post Depart iil("lll Tot Backlo Current al g Vacancy
1. Professor ii. Reader . . .
III. Lecturer Rs.2200- 4000
-k V ZoologVy__'--.V ' Sfiawgi }1js1'rvI_V.Cv.'A. English Urdu 81. Persian, Chemistry (Ind.Chemistry
01) "_ (Chemical 1 Enggi»01> Bio-'C4_h'emistry. V Appl. Electro.ni'c;s I * " I I (;l~"«un.cti-onal Cou.rs'e.)5 I "Maths ii '(-C.ornp.Sc.) Sugar Technology / " Engineering.
Microbiology Botany (Cytogenetic) Journalism 85 Mass Communication Information Sc 85 Technology QUALIFICATION:
0.2 01' '-
' or.
Q 01 01 02 01 01 Ol 01 1 01-314 ;;G"1--sT 'OI-SC _ 0l--Cat--I 0l--SC 01~SC, 01- ST, 02~GM, (1 LC) 0l~Cat--I 01--SC 0I--SC 0l--SC 0l--ST 0l--Cat--l 0 l~Cat--I 0l--GM / 5/ ll C.P.C. seeking for amendment of statement to get out of their earlier sta.I'1d'_p0__st'* graduate degree in mathematics isiieiquivalent to :d.eg=:_ee in Computer Application which 39 of the writ appeal contended that Mathematics even as per the notification. H A l,25'.i"\A/ii:li"IlAlii€i"i Patil learned counsel is not hand the University is repre_se'nte'd Kumar, Mr. Ashok Patil, learned for the third respondent-
cand~ida_teivhas made a very spirited and bold ' ;i'effort'to'<.defend the selection, by pointing out that the flthird irefsppondent was a person with a very relevant quali'fication, as mathematics is a relevant subject that ii 'iin._fact it is a core subject in Computer Application course; that at any rate it cannot be said it is not a relevant subject, and moreover the Board of Appointment, which is the expert selection committee é/_ 13 jurisdiction of judicial revievviiiiio'f'«t_he {aCi1V':f1iiI_iiV$if1'iati\i/'53 action.
13. Perhaps the juvd:gment.s'*--.co'ulid-- been followed and applied_&' if relevance and applicability to the case. We find that the the post for one different purpose is notliiinig opportunity to such of had the qualification of post graduate" mathematics from getting an A iforiapiplying to the post and therefore is a violation of Articles 14 and 16 of the A of India. The University has misused and abused its power of appointment to the post of lecturer ii = firstly inviting applications for the post of lecturer in Computer Applications and after indicating that the person should have a qualification of post graduate degree in the relevant subject and even when the appellant was one with the very qualification and having passed in first class with distinction, to ignore such a 24
21. Notwithstanding the facftiithat. 2 judgment to some extent, weirhgave further' anxious consideration to t'he"r--submi'ssions_: made' at the bar and in the light,o_f thegimcoird lplacedlbeforeius.
22. While there cariiiot -be ianyv.dispu_te and at any rate it is not proper either the correctness "£129 ludgmalt Of the ratio is attracted to a givezjh and disposing of the matter! Court in terms of the law declared ibyigthrel' Supreme Court on the question is the pg h~.-;ui»é1até..qf theiHConstitution, and the High Court has to the law declared in the judgment of the S-uprern"e---- Court to the facts of the case, we find the facts of thletpresent case reveal a different story, warranting a A' 'distinction to be made in this case.
23. There cannot be any two opinions about the court keeping off its hands in matters of technical expertise and particularly when a technical expert body has , ,,,,,,a ,.., ,,..,..., i3...:-.>.,.E;.m..;_..;.;.;eam...a.a...zm;.«.:;..:;-;m;:;.»«sa.;:is;;,;,tinzaz.-:3, given opinion one way or the other, this not act as an appellate authority to interfere'i"<vith'itheivievvii taken by the expert body.
24. But unfortunately ' if Unjiversity i' the situation in the The relied upon by the learne'd.iii:cou'n.se_l :Vfor.ipt:L"1¥i(g§'IJ'niversity are not at all attracted toirthie as we have found the respondent to the Postgwoi' of MCA, is an 'fr.o'rn'i not only legal mala fides but also and a possible 'suppressio on theiiipairit of the University.
" for the reason that the University which the post and invited applications for the postjof Lecturers in MCA has gone about shopping for a i possessing post graduate degree in Mathematics even when an applicant fully qualified in post graduate degree in MCA the very discipline) passed in first class with distinction, obtained from the very University was 27 For a typical intake of 30 students per yearmin minimum faculty requirement is Professor 1 Readers 2 _ Lecturers 4 The qualifications are given belllowiid' A. Sub cadre Qiialifications. for "courses Lecturer M. E/ M.'I'ecl'_1_.in ' C.on'1.puter Sciences' Engg / Tech incase the candidate-._does not have a Master Degree _B,E/2B.Tec--h*~ in _ computer Sc and Engg/ Tech wi th' 60% -aggregate. S MCA with ;a minimuiil of 60% marks aggregate _--.'Mast~3_r's de--gre;ev with a minimum of 60% V V 'ma1'l{:.=f'-i.n.appropriate branch in the teaching posts in humanities and sciences.
V 1; V "--~__rSup'port Staff Asl'abo'rato'i.y is arriimportant part of the MCA curriculum, 'adequat'ev._staffV in support instruction maintain the E<"i1ard.ware and software in the laboratory are needed. We " --the following :
l Reader 2 System managed in the grade of Asst. Prof. 1 Junior system analyst in the grade of Asst. Prof. 2 System Analyst in the grade of lecturer.
4 (in lecturer grade) '1' esteriuin-charge System Analyst / Programme
2. Advisory Board To enable industry -- institute interaction and advisory Board be constituted with the Principal/director and an I k.' 3() falls short of the voiistitutioicial mandate of t}ie=iSta'te being in coni'ormii_v with Articles 14 and Constitution oi' llldltt. zitfoitliiig equal«opbortu--nitv' all eligible vanclid;iIe;~s. ln fact the i:r1e'tiholCi--
made by a(lO]i)lll'l,Q this pi'<)(:e'c'u_11'e, ti-awevdwliat it"
can never pass the test l')efor'e alVL_'Cot1,rt. niore. while in the exercise oi Ajtii'is<::'i_iCtio.i5i' -jfudticial review of &1C1U1lI1lSll'Z:1l,lV¢,.'-iii'-!_l()Ilit for the reason that the post notiliedI"ik._>r:=l:>{1¥_;iig.:i7i.l__l.edV ti'.[)':b}7Vlh€ University in MCA course"s'lc1o_L1'l.tl l5:3>::,3one_w.itn refe.re1icte to the vacancy and the Vé1ACt2i'i1l(fy ("LVtl:V:i"~,_tll'},ly'v}_)5"lll.a particular subject of the departnient anti. i\:i.ii"ii.o.!t' be generally with reference to the}: cour se . V 49:? "'<'i..>»'§~i'tIllllI"l/Q that it is with reference to the l\/{CA tzoihirse itself} as we have noticed. for imparting tea(:li.ing» to a vlziss will: a sti'eiigth of 30 students in a _ 'Y._€§:", one p1'0l}1~as<iI". tm) reaclers and Four lecturers are frequirecl. The lfiiiw,-1'sitv should know in advance as to what. should be ilie composition of lecturers and which 'V V' A post: of l(,'G.lL1l't'l'H in W 'S .3) Mathematics and therefore. selection respondent as a person having '.t"'r1e:.._:~'.nee:evssary qualification in the relevant onlyéfolrtlifieisfl View that the U iii\»ei'siiy fro'm.___thelheginningv"
appoint only .1: pe1:~;on ll2l\'V"Vll1"1.'iV.J; in Mathematics and iig»T\,'§~x:;i person having PG qiialitiic-zitio_n:'iii fi.;i'1€I'€ is nothing wrong in [JI'§'l\lt,"';:%i:.llV§' made it known in the H(,,)fifl(Ti{i:lVl:.i)ll ii iw'4ii1'iAl..§1'(z,>j;applications for filling up the post of 1<"C':A'[,"'l:~1.T":"f.'_'vI' illetlly.'«§.lEil'l,l('.L,1lelI' subject taught in MCA Course. The not do so, but on the other hand as n'oti(-eel 'V--.ea1f_lier"; iioiiiication only said. it is the MCA Course.
H Vi"«lt_».__ca;nnoi be saicl that the University was not avvérev-..V:o.i"n'otii}.'iiin the post: in any department with the V specific subjcti l')('lli,L{ mentioned obvious from the '._n'otificatior1 iiscli} ii" oiie looks at the notification -- ___Annexure -- A with reiisreiice to the posts of Lecturer in Chemistry, MBA. l\='l;tl,l1€*lllalTiCS and Botany the of 34 University had Very clearly indicated i lecturer in Mathematics as Maths (CCII1p1l:l;€fi"SC'lCngé}~. and in the case of Lecturer C-heyrnistry. it l'I'}iCll.C€i':L;§Z Chemistry, (lndustrial FC'hemiistryii §~ (Chemical Engineering -- post) reference to MBA it indicated ll:/lB;t't_~'xvvi(Fu'n.c'tional Course) and with reference to Lecturer'ir1'r_Botanyi;.it indicated it as Cifiitoééifiiéticiia ii Botany ( 34g' iiii "If applied to MCA also and if ii'retall,yV..~intended to select a person having i'P»G"qu';-11iifi._cation in Mathematics either with or Computer Applications or any i ItCio'ther__i'sp'eciality nothing would have been easier and it hefitting:'I_tlian to precisely indicate this requirement in the livery notification. But not doing so, and only _ iilndicating the post of Lecturer in MCA is nothing short misleading/discouraging the aspirant/qualified persons having post graduate qualification in Mathematics.
35. Perhaps the University only wariterftiov ' the 3*" respon<it»ii1 and Vx'£U1l_E'{'l~ -to Competitors: I'I'1<fr1't' c-ii;__:il)le or more Mathematics ssubjvct e1',}___(v:1p:'«-.¢..¢1thereloreipVHAd'e1'ibe1'e1tely"
Cal'I1OL1fl;lg€'(l llit' 1101l..lltTall(lAl-1~~~-%ll'~llliéll, lrieverllgives an hint that the post filled up by the UI]l\'L'I'Sl'['V' iii Iiltiie
36. l,lI'1l4\'V/(lf.>l'.*5l£i if _i':i'a§ "pl;'i4_<1[+e,_<;V"'lo{7-"imparting higher Edu(:ation._V -:j_,~_e,';_;,_rv;itliiigjfl§i'm'\v1l£;dgc: and places of €XC€l}_€I1t'€_.1l 'W>:;:jsi:.y"piwp:ires qualified, equipped and polishedeitgizeuyé '-of ti;---:__il.1'('>;"l'<mr who can build and take Car(:'of_tl1is ¢:=.o;;:y;';~y in ttll xmllis of life. An institution of «such gmiidetir ;ll'lll(il'l'}alllO\\7t*<l places are models for the lSQCl€i_\:/l'l'=.;ll1dA"~.§l~'i(,)lll(fl rmnziiii so and not to indulge in pettine~ss«_.A]=éi1'!sitmriness or the whimsical manner of AAf1?1I1Cl.if)I"'1lI1g. Pei"soris iiizeiiiitiéiig the Universities should lC7()T.1tdL1(?l in '(I inzinmrr \.\'lll(,'l': <>ii<:~its appreciation. begets fcomplinicnts .;izid the Soc*it*:y should be beholden for their guidaiice amd S("l'\»'l(','C:*%. Unfortunately, we do not 36 find any of such qualities in the present only an act of utmost unfairnessfi fraudulent act and one of qualification aspiring A.§p.portu'nityVgllVll'ins: the' university who are ready impart education to the -taken for a ride, misled byytliév AnneXure--A as issued :,ly_:b\/'Je' do not expect the manner as is done in the present situ"a.tionl.'c'a... __ Though' l\ladagouda, learned counsel would thievllllniversity has been adopting the same of selection all along, it only calls for and it is high time for the University to _ Vchangie its colour and methods of selection and atleast V' whelnceforth, the University may reform itself, so that the V constitutional mandate of equal opportunity to the qualified aspirants in terms of Articles 14 and 16 of the $/ 37 Constitution of India is obeyed in letter not flouted by the University.
38. The so called expert Appointment, in our opinion,' is nothing sihovrtv4QfVVa..>farce.V"
of an expert body as it as toihiiiiwvlhatviimanner a Board like this catyiiinake iaJhriecgorriinendation for the most suitableaor qualified the post when the Board itowiin which particular subje_c_ti' make a selection. A of applicants from different discipilines is" nor can it be a proper evaluation ionia comparative basis. Even the method the Board gets flawed because of the trickery 2 University while notifying the post and directingiiiithe Board to make a selection even without " proper instructions to the Board but simply 'placing before the Board some guidelines, so that the Board evaluates them on a given norm and on a scale of 100 marks which is spread as indicated in the work 38 _ . y c sheets in t;erms of the evaluation itself.
39. Though it is for pass' comment on the method andxrnaiiner oft i"u11.ct,.ibni11g of a Board of appoiiitment,-.and-expert we find the manner in which thg.~Boai'iq;--.haa5_ its duties in the presentidefinitely does not satisfy our the recommendations as one be commended to folloxvf We observing that no one is above the 1aw,dr'u_1:e 1a'wa.pp1ies to everyone including the Board-a.:oi».Appointn'1ent. No expert body is immune from V o1"'--.Artic1es 14 and 16 of the Constitution of dxlndia afriid.ei11ega1ities, arbitrariness and unfair action cannot passed off as one clothed with the immunity it ofypthe opinion of an expert body, even when it is ti'-Zviojlative of Articles 14 and 16 of the Constitution of India and courts in the exercise of judicial review of administrative action cannot permit such things to 39 happen in the name of Courts not sitting in;"appea.l_ovei* _ the opinion expressed by the expert bo_dy'.«--ia» case of an expert body rendering a.-Alboinaagfide"opinior12oi'1 the subject matter within'it_s expertise, but allcleargiid. case of playing into the ha'nds,of the. University who have acted in a '--r_1flanrier1;'ot"*~fsv1iippressio veri' and 'suggestio falsi', whiohvact on the University has vitiated thi:e'i'entir'e iselectoioin process.
40. A Iiecorrdfof the proceedings that hasl7._1;al<'en the Board of Appointment brought"----.hy- ifivegistrar of the University to place the coiLi'1'tv..coinprising 7 loose sheets, first of which ' ;.iii's»indicativeaof the proceedings of the meeting of the i' . Board of Appointment containing specific recommendations as under:
Specific recommendations:
The Board interviewed five candidates who appeared for interview. Their academic attainment was assessed as per the enclosed forms.
./'I x X 40 Out of five who appeared fotf""'--.p interview, one belonged to category and the remaining four to G.M. category'; B"
Out of these five' "'ca1!d«idates;l'tvtlie Board recommends the can;d_'idatti're"'of Ganapat Singh Gangaram._Singhr.':l{ajvpgt for selection to the post°of1ect'urertin on the basis vofzhis acadeiniciqualifications and performanc in' ; , B . Boiardii B fixation of irninimum of UGC Sca~1e."* 7 and Xerox .of»ei):vhcon'1position of the Board and their recomrnen_dation_s per their proceedings dated and"'ii)....»score cards indicating the marks V each member of the Board of Appointment the candidates interviewed by them, shows the manner of functioning of the members of the Board We say so for the reason that at least in respect '?of the selected candidate~the 3rd respondent and the appellant, three of the members have made ,-/' /' // 42
43. Be that as it may, the very notification issue:d.}:)y the University is one flawed and it is a failing the requirements of Article 14 .£j';I'i'\;"l.:'::~W}6l"':l3l"' '* 2 Constitution of India and a sele4ctis_on..:'niade,l 61:19 such a notification, drenyin_g«--.._equal.. those eligible persons in the and excluding the person qualification in the Very rnost irrational and arbitr:_2_a..ry»» selection of the 3m appointment to the post of Lecture/_r in l»4I.rt4o--1::3le*--necessarily quashed.
44. ;' Ruled'llrflyélfiieilahlsolute. Annexure--E Resolution at l 21.1999 passed by the Syndicate of A*-léifreqspondentljniversity relating to the appointment of the"~.3F<*,._resp'ondent to the post of Lecturer in M.C.A., is V. vpylllqurashedlby issue of a Writ of certiorari. That leaves us with the question as to what relief "has to be extended to the appellant. The prayer made in the writ petition reads as under:
44
the post of Lecturer, he was the "'o__nlyjfi.eligiblle candidate left in the field. in its duties in not doing so,_but has"-gone »al1out;"ptit'ting..p forth all sorts of dei'ences"'an'd. cotin't;ers.t;o 5%/1st:Vify the illegal appointment of _3?ll_respoiiglentl post; of lecturer in MCA Course} _ i
46. .ele'a._if ._case --offfdenial of fair opportunity to the .a.ppAellant* arid-».per_ha ps-.,...thVe hopes and aspirations of a young Vqii'alti_fied in MCA, was shattered and a persoiiflvho \/voLl1lt.:l"l1a've been lecturer for the past ll denie'cl«..th.at opportunity only because of the ' and illegal action on the part of the 'Un'iversiij,?';_ "The issue is not so much with regard to the '._question of treating Mathematics subject as a 'relevant "subject for the purpose of M.C.A. Course and perhaps, we could have accepted this line of argument and logic if the University had indicated in its advertisement that the post that it has advertised for appointment of 47 appellant has under gone all through these years---,._not only for being kept out of the job but also of the cost of litigation and the wear and""i;:earf_r'<:lVi1e _& it litigation.
51. The University is dilreeted to give '.5thiS order by appointing the appe11a:nt_for the post lecturer Within two weeks of this order. 1 s Sd/..
JUDGE