Karnataka High Court
Yusufali A Nimbargi S/O. Allabax, vs University Of Agricultural Sciences, on 6 February, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 6 T H DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION No.60843 OF 2012 [S-RES]
BETWEEN:
YUSUFALI A. NIMBARGI S/O ALLABAX
AGE: 31 YEARS, OCC: SERVICE,
R/AT: NO.169, VIVEKNAGAR WEST,
NEAR BDA GARDEN, BIJAPUR
...PETITIONER
(BY SRI HEBBALLI, ADV.)
AND:
UNIVERSITY OF AGRICULTURAL SCIENCES,
KRISHINAGAR, DHARWAD-580 005,
REPRESENTED BY ITS REGISTRAR.
...RESPONDENT
(BY R.A.MALLI, ADV.)
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 & 227 OF CONSTITUTION OF INDIA
PRAYING TO QUASHING THE IMPUGNED
RESOLUTION DATED 29.08.2011, PASSED BY THE
RESPONDENT NO.1 IN ITEM NO.11, IN SO FAR AS
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IT RELATES SL.NO.3 IN RESPECT OF 2B-1(W.P.
16462/07 AND CONNECTED CASES),M A COPY OF
WHICH IS PRODUCED HEREIN AS PER ANNEXURE-F
AND CONSEQUENTLY ISSUE A WRIT IN THE
NATURE MANDAMUS DIRECTING THE RESPONDENT
NO.1 TO CONSIDER THE CANDIDATURE OF
PETITIONER FOR APPOINTMENT TO THE POST OF
SUBJECT MATTER SPECIALIST/SCIENTIST
RESERVED UNDER 2B(W.P. 16462/07 AND
CONNECTED CASES) CATEGORY.
This Writ Petition coming for preliminary
hearing 'B' group, this day, the Court made the
following:
O R D E R
This writ petition has been preferred to quash a resolution dated 29.08.2011 passed by the Board of Management of the respondent University, in Item No.11, in so far as, it relates to Sl.No.3, in respect of the post 2B- 1(W) and to direct the respondent to consider the candidature of the petitioner for appointment to the post of Assistant Professor (Agronomy), reserved under 2B-1(W) category.
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2. The facts and circumstances giving raise to this writ petition are that, in order to fill up amongst others, 3 posts in the category of Assistant Professor-Agronomy, the respondent issued a notification dated 14.04.2011, as at Annexure-A. The 3 posts as per the roster were reserved for SC-1/2B-1(W)/GM-1(Exs). The petitioner submitted an application form, as at Annexure-B i.e., for the post of Assistant Professor-Agronomy and claimed that he belongs to 2B backward class. The respondent issued interview call letter dated 26.12.2011 as at Annexure-D. As per the proceedings of the 5th meeting of the Board of the Management of University held on 29.08.2011, vide Annexure-F, it was resolved that, Sl.No.3 in respect of the post 2B-1(W) to re-advertise.
3. The claim of the petitioner is that, when a woman candidate belonging to 2B category was not available, a male candidate belonging to 2B category ought to have been selected. The petitioner contends that he 4 being only candidate under 2B category, ought to have been selected and appointed. The petitioner contends that, even though the respondent was required to select three candidates, only two candidates were selected, as against the vacancies reserved to SC and GM(EXS) and none was selected to the vacancy reserved under 2B(W).
4. Sri. S.B. Hebballi, learned advocate for the petitioner contended that the impugned resolution is arbitrary, illegal and discriminatory. He submitted that, by following the instruction at Sl.No.13 of the notification, as at Annexure-A, on account of non availability of the candidates belonging to special categories under horizontal reservation to the posts, the posts earmarked for the said categories was filled up by other candidates belonging to the respective reservations as per the provisions of the Government Order dated 20.06.1995 i.e., in respect of two posts reserved under GM-1(EXS) and SC-1. He submitted that in respect of the post reserved under 2B-1(W), the 5 said procedure was not adopted and that on account of decision taken to re-advertise for the post vide at Annexure-F, the petitioner has suffered injustice and there being discrimination, interference is warranted.
5. Sri. R.A. Mali, the learned advocate appearing for the respondent, by referring to the statement of objections filed to the writ petition, inviting my attention to the instruction at No.22 of the recruitment notification vide Annexure-A, contended that the petitioner has no right to seek appointment, in as much as, the vacancies notified were provisional and was subject to variation. He submitted that the right of filling up any or all the vacancies advertised is that of the university and that the applicants have no right to seek the appointment. He also invited my attention to the contents of Annexure-E, containing the marks statement of candidates, who attended the interview and submitted that the Board considering the fact that the petitioner had scored only 6 24.389, which was less than 50% of the score scored by any of the two candidates selected, resolved to direct the university to re-advertise the post, so that a more suitable candidate may be available in the future advertisement. He submitted that, even in the future advertisement the posts would be kept reserved for the candidate under 2B category and that the petitioner himself is free to make an application for the post once again and to compete with other candidates, who may apply for the said post. Learned counsel further submitted that the resolution of the Board of Management as at Annexure-F is neither arbitrary nor illegal, much less discriminatory, warranting any interference in exercise of writ jurisdiction.
6. Considered the rival contentions of the learned counsel for both the parties and perused the writ record.
7. The respondent invited the applications vide at Annexure-A, for the various posts. The petitioner had 7 submitted an application vide Annexure-B. The petitioner was one of the candidates, called for the interview. Annexure-E shows the marks scored by the candidates who attended the interview. The Board of Management of University, in its meeting held on 29.08.2011, considering the recommendations of the respective selection committees for recruitment for the posts, has passed a resolution to re-advertise the post notified under category 2B-1(w), for Subject matter Specialist/Scientist (Agronomy).
8. A person who applies to a post and even, if his name appears in the selection list, does not acquire any indefeasible right for appointment. In the case of Shankar san Dash V/s Union of India, (1991) 3 SCC 47, the Apex Court has held that the appearance of name of a candidate in the selection list does not confer on him a right of appointment.
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9. The post to which the petitioner has made a claim, as per the notification at Annexure-A was reserved to a candidate belonging to 2B-1(w). Undeniably, the petitioner does not satisfy the said requirement. His case is that the post reserved for 2B-1(w) category, when no woman candidate was available, ought to have been filled by an available male candidate belonging to 2B category and that he is the only candidate and hence, ought to have been selected and appointed. The claim of the petitioner has no merit, in as much as, the petitioner has no legal right to insist that the post should be converted from woman category to male category and he should be appointed. It is trite that, even if the vacancy is notified for appointment and the candidate is found successful in written/viva voce test, such candidate would not acquire any indefeasible right to the existing vacancy as is clear from the ratio of law in the case of B. Ramanjani V/s State of A.P., (2002) 5 SCC 5333.
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10. In the instant case, the petitioner has not been found to be successful and has no legal right to insist that the reserved post should be converted and his candidature should be considered and he be appointed to the post. In the case of Subha B. Nair V/s State of Kerala, (2008) 7 SCC 210, it has been held that a decision on the part of the employer, whether to fill up existing vacancy or not is within exclusive domain of the employer and in the absence of discrimination or arbitrariness the writ Court, ordinarily, should not interfere with such decision, merely because a person's name was found in the select list, the same itself would not be a ground to compel the employer to fill the vacancy.
In the result, the writ petition is devoid of merit and is dismissed. No order as to costs.
SD/-
JUDGE Ksj/-