Gujarat High Court
Rajnikumar Fuljibhai Chaudhary vs State Of Gujarat & on 7 February, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/1733/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1733 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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RAJNIKUMAR FULJIBHAI CHAUDHARY....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HRIDAY BUCH, ADVOCATE for the Petitioner(s) No. 1
MR DM DEVNANI, LEARNED ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 07/02/2014
ORAL JUDGMENT
1. Rule. Mr.D.M. Devnani, learned Assistant Page 1 of 27 C/SCA/1733/2014 JUDGMENT Government Pleader, wavies service of notice of Rule on behalf of respondent No.1- State of Gujarat and Mr.D.G. Chauhan, learned advocate, waives service of notice of Rule on behalf of respondent No.2- Sardar Krushinagar Dantiwada Agricultural University.
2. On the facts and in the circumstances of the case and as, according to the learned advocate for the petitioner, there is urgency in the matter, the petition is being heard and decided finally, with the consent of learned counsel for the respective parties.
3. This petition under Article 226 of the Constitution of India has been preferred, inter-alia, with a prayer to direct the respondents to issue an interview call letter to the petitioner and permit him to participate in the selection process for the post of Associate Professor (Plant Pathology), pursuant to Advertisement No.I/13 (Adm-I) issued by respondent No.2-University.
4. Briefly stated, the facts of the case are that the petitioner holds the degree of Bachelor of Science Page 2 of 27 C/SCA/1733/2014 JUDGMENT (Agriculture), having successfully completed the four years' degree course for the said discipline in the month of April/ May, 1999 with 62.60% marks. It is stated in the petition that the academic performance of the petitioner has been excellent and the petitioner has secured overall Grade Point of 6.26 out of 10. Transcripts of the academic performance of the petitioner, during these four years are annexed to the petition. The petitioner was awarded the degree of Bachelor of Science. Thereafter, the petitioner pursued his Post Graduate studies with respondent No.2-University, with the major field of study as "Plant Pathology" and minor field of study as "Plant Breeding and Genetics". The petitioner completed the Post Graduation course in the year 2000-01 with a First Class, having secured 70.90% with overall Grade Point of 7.09 out of 10. The Degree of "Master of Science" was conferred upon the petitioner on 28.01.2013. The petitioner continued his doctoral studies with respondent No.2-University, in the subject of Plant Pathology. His thesis titled "Studies on Leaf Rust of Wheat caused by Puccinia Recondita Rob.ex.desm.f.sp.Tritici" has been accepted and the petitioner has been declared eligible to receive the Page 3 of 27 C/SCA/1733/2014 JUDGMENT degree of Doctor of Philosophy. Pursuant thereto, the petitioner was conferred the degree of Doctor of Philosophy by respondent No.2-University with overall Grade Point of 7.24 out of 10. In addition the petitioner possesses the qualification of CCC+ examination from Sardar Patel Institute of Public Administration. In the meanwhile, the petitioner had secured a certificate in the National Eligibility Test offered by the Agricultural Scientists Recruitment Board in June, 2004 and was appointed as an Assistant Professor of Plant Pathology, by respondent No.2- University on 26.03.2008. The petitioner was appointed on probation for a period of one year and after successful completion of the period of probation, the petitioner was confirmed in service vide order dated 28.08.2009, by respondent No.2-University. While the petitioner was working as Assistant Professor, an advertisement was published by respondent No.2- University for various posts including the post of Associate Professor (Plant Pathology). The petitioner applied for the same and his name was recommended by the Selection Committee. However, the name of the petitioner was kept in the waiting list for Associate Professor, therefore, the petitioner continued to Page 4 of 27 C/SCA/1733/2014 JUDGMENT serve with respondent No.2-University in the capacity of Assistant Professor. In the meanwhile, Navsari Agricultural University issued an advertisement for the post of Associate Professor (Plant Pathology). The petitioner applied for the said post and was appointed as Associate Professor (Plant Pathology) on 29.09.2012. Since then the petitioner is working as an Associate Professor (Plant Pathology) in the Navsari Agricultural University.
4.1 In this background, respondent No.2-University issued the advertisement No.I/2013, inviting applications from eligible candidates for various posts including six posts of Associate Professor, in various institutions affiliated with it. As the petitioner had earlier been working with respondent No.2-University, he applied for the post of Associate Professor (Plant Pathology) vide two applications dated 15.04.2013, one application was sent by the petitioner directly to respondent No.2-University, whereas the second application of the same date, was forwarded to the Navsari Agricultural University for forwarding it to respondent No.2-University, through the proper channel. Though the application of the Page 5 of 27 C/SCA/1733/2014 JUDGMENT petitioner that was sent directly to respondent No.2- University was received by it well in time, however, it was not processed due to a clause in the advertisement that stipulates that the applications of persons already employed should be routed through the proper channel. Insofar as the application sent by the petitioner through the Navsari Agricultural University (the proper channel) is concerned, his request to forward the said application was rejected by the said University, on 08.05.2013. The petitioner, therefore, represented to the Navsari Agricultural University on the same date, that is, 08.05.2013, to forward his application to respondent No.2-University. 4.2 This application was also rejected on 20.05.2013. Thereafter, on 23.05.2013, the petitioner made a representation that his application may be considered by the Vice Chancellor of the Navsari Agricultural University, who would take a decision whether it ought to be forwarded to respondent No.2-University, or not. Ultimately, upon consideration of the application of the petitioner, the Vice Chancellor of the Navsari Agricultural University, not only forwarded the application of the petitioner to respondent No.2- Page 6 of 27
C/SCA/1733/2014 JUDGMENT University on 29.01.2014, but also issued a "No Objection Certificate" of the same date, stating
therein that the Navsari Agricultural University has no objection if the petitioner is called for interview and selected as an Associate Professor. Unfortunately for the petitioner, the application was forwarded after the last date for receipt of the application mentioned in the advertisement. 4.3 The case of the petitioner is that the interviews for the post of Associate Professor are scheduled to be held on 09.02.2014 (10.02.2014 as per instructions received by learned advocate for respondent No.2- University) but the petitioner has not been issued a call letter by respondent No.2- University for the interview till date, though his application has been forwarded to it through the proper channel. 4.4 In this background, the petitioner has approached this Court by way of the present petition.
5. Notice was issued in the petition on 31.01.2014. Pursuant thereto, respondent No.2-University has filed an affidavit-in-reply, a perusal of which goes to show Page 7 of 27 C/SCA/1733/2014 JUDGMENT that the main objection of the said respondent is that the last date for receipt of applications pursuant to the advertisement is 30.04.2013. The application of the petitioner through the proper channel was received on 29.01.2014, much after the cut-off date.
6. In this context, learned counsel for the respective parties have addressed detailed and elaborate submissions in support of their respective stands.
7. Mr. Hriday Buch, learned advocate for the petitioner, has submitted that the objection raised by respondent No.2-University regarding the application of the petitioner reaching them after the cut-off date is a highly technical one, considering the peculiar facts and circumstances of the case. The petitioner had made two applications on 15.04.2013, which is much before the cut-off date. One application was sent by the petitioner directly to respondent No.2-University, whereas the other application dated 15.04.2013 was sent through the proper channel. The Navsari Agricultural University initially refused to forward the application of the petitioner to respondent No.2- Page 8 of 27
C/SCA/1733/2014 JUDGMENT University. However, the petitioner made several applications and representations, as a result of
which, ultimately, the Vice Chancellor of the Navsari Agricultural University took a decision to forward the application of the petitioner to respondent No.2- University on 29.01.2014. Along with the application, the Vice Chancellor of the Navsari Agricultural University sent a "No Objection Certificate". This communication has been received by respondent No.2- University, but the petitioner has not been given an interview call letter, for no fault of his own. 7.1 There is no mandatory rule or any statutory dicta, requiring the application to be filed only through the proper channel. In fact, the petitioner had made the application through the proper channel well in time, but for reasons beyond his control, and for no fault of his, the application was not forwarded in time. However, it has ultimately been forwarded and has been received much before the interviews are scheduled, therefore, the objection raised by respondent No.2-University is unfounded. At the best, it can be considered to be an irregularity that has ultimately been cured, but not an illegality, so as to Page 9 of 27 C/SCA/1733/2014 JUDGMENT deprive the petitioner from appearing in the interview.
7.2 It is further submitted on behalf of the petitioner that it is not the case of respondent No.2- University that he is not qualified, eligible or experienced for the post. The petitioner has not suppressed the fact that he is working in the Navsari Agricultural University. In any case, the application made by the petitioner directly to respondent No.2- University has been received by them before the cut- off date, as is evident from the receipt of the registered letter by which it was sent, annexed at page 55 to the petition. The only irregularity, if it can be called so, is that the very same application sent on the same date, through the proper channel, was not forwarded by the Navsari Agricultural University within time. Ultimately, it has been forwarded along with a "No Objection Certificate". That the petitioner has approached the Court before the interview is scheduled to take place. The delay caused in forwarding the application through the proper channel cannot be attributed to the petitioner, as it was on the part of the Navsari Agricultural University. As Page 10 of 27 C/SCA/1733/2014 JUDGMENT the issue has been resolved by them and the application forwarded, respondent No.2-University ought not to take such a technical stand in not permitting the petitioner to appear for the interview. 7.3 That the post for which the petitioner is aspiring is not a pensionable post. No benefit of being an "in service" candidate is to be conferred upon him, and there is no continuity of service. If the petitioner is permitted to appear in the interview, no financial or rather legal implications would befall the respondent No.2-University and no prejudice would be caused to it.
7.4 In support of the above submissions, reliance is placed upon the following judgments:
(1) K.N. Guruswamy v. The State of Mysore and others reported in AIR 1954 SC 592 (2) Satyabrata Sahoo and others v. State of Orissa and others reported in (2012) 8 SCC 203 (3) Ram Prasad Sarma versus Mani Kumar Subba and others reported in (2003) 1 SCC 289 Page 11 of 27 C/SCA/1733/2014 JUDGMENT
8. The petition has been strongly opposed by Mr.D.G. Chauhan, learned advocate for respondent No.2- University, by contending that there is a clear stipulation in the advertisement that applications in the prescribed format should reach respondent No.2- University on, or before, 30.04.2013. In the "General Information and Instructions to Candidates" annexed along with the advertisement, it is specifically mentioned that the applications of persons already employed should be routed through the proper channel. In the present case, the application of the petitioner was sent by the Navsari Agricultural University only on 29.01.2014 along with a "No Objection Certificate", which is well after the cut-off date of 30.04.2013. It is further submitted that the application dated 15.04.2013 sent by the petitioner through the proper channel was rejected by the Navsari Agricultural University on 08.05.2013. The petitioner was, therefore, aware on 08.05.2013, that his application has not been forwarded through the proper channel. The petitioner did not do anything in this regard till 29.01.2014, when the Navsari Agricultural University ultimately forwarded his application. As the application through the proper channel has been Page 12 of 27 C/SCA/1733/2014 JUDGMENT received after the last date for acceptance of applications, the petitioner cannot be issued a call letter to appear in the interview. The petitioner did not take any action for about nine months after the refusal of the Navsari Agricultural University to forward his application; therefore, in this view of the matter as well, he cannot be issued an interview call letter at the last minute.
8.1 Learned advocate for respondent No.2-University has further contended that in the rejoinder filed by the petitioner, there are allegations against the Navsari Agricultural University which is not a party to the present petition. It is submitted that it was incumbent upon the petitioner to challenge the communication dated 08.05.2013 of the Navsari Agricultural University before this Court, refusing to forward his application through the proper channel. It is urged that the petition suffers from non-joinder of necessary parties and ought not to be entertained. 8.2 It is next submitted that at the time of his appointment as Associate Professor with the Navsari Page 13 of 27 C/SCA/1733/2014 JUDGMENT Agricultural University, the petitioner has accepted the terms and conditions of appointment. Condition No.21 stipulates that he should not apply for any equivalent post during probation period to any university or elsewhere and no application will be forwarded through the proper channel. In view of the said condition, the Navsari Agricultural University returned his application and did not forward it through the proper channel.
8.3 It is further contended that the petitioner has obtained appointment in the Navsari Agricultural University and his desire of being interviewed by respondent No.2-University for the post of Associate Professor would result in the wastage of one seat for some other deserving candidate who may have lost the opportunity of occupying that seat in the Navsari Agricultural University. It is further submitted that the Navsari Agricultural University rejected the representation of the petitioner for the second time, on 20.05.2013. Thereafter, the petitioner made a representation to the Vice Chancellor who decided it on 23.05.2013. However from 23.05.2013 to 29.01.2014, no steps were taken by the petitioner in this regard. Page 14 of 27
C/SCA/1733/2014 JUDGMENT It is only when the petitioner came to know about the interview that he has approached the Navsari Agricultural University to forward the application. 8.4 Lastly, it is submitted that no fundamental or statutory right of the petitioner has been infringed in order to entitle him to be called for an interview. The petitioner is already working in the Navsari Agricultural University, therefore, no prejudice would be caused to him.
8.5 In support of the submission that the application of the petitioner was received after the cut-off date/last date of acceptance of applications, that is, 30.04.2013, learned advocate for respondent No.2 has relied upon the judgment in Ashok Kumar Sonkar Versus Union of India and others reported in (2007) 4 SCC
54. 8.6 It is submitted that this Court may not entertain a petition where the application has been received after the cut-off date as, if that is done, several other persons may also approach the respondent for the same relief.
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C/SCA/1733/2014 JUDGMENT 8.7 On the basis of the above submissions, it is prayed that the petition be rejected.
9. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, other pleadings and considered the submissions advanced at the bar.
10. By the advertisement issued by respondent No.2- University on 31.03.2013, applications have been invited from eligible candidates, in the prescribed proforma, for certain posts, included the post of Associate Professor. There is a stipulation in the advertisement that the applications should reach the Registrar of respondent No.2-University on, or before, 30.04.2013. Instruction No.3(iv) of the General Information and Instructions to Candidates, annexed along with the advertisement, stipulates that in cases of persons already employed, the application should be routed through the proper channel. The petitioner is working as an Associate Professor in the Navsari Agricultural University; therefore, he is a person who is already employed, and his application would be required to be routed through the proper channel. The Page 16 of 27 C/SCA/1733/2014 JUDGMENT proper channel, in the case of the petitioner, would be through his current employer, the Navsari Agricultural University. It is not disputed that the petitioner made two applications on 15.04.2013, for the post of Associate Professor in respondent No.2- University. One of the applications has been sent by the petitioner directly to respondent No.2-University, and has been received by the said respondent on 21.04.2014 as per the acknowledgment of the Registered Post through which it was sent. The second application dated 15.04.2013, was sent by the petitioner through the proper channel. This application was returned by the Navsari Agricultural University on 08.05.2013, in view of the terms and conditions of appointment. The petitioner represented to the Navsari Agricultural University on the same date, that is, 08.05.2013. The Navsari Agricultural University again returned the application to the petitioner on 20.05.2013. The petitioner made a third representation on 23.05.2013, requesting the Vice Chancellor of the Navsari Agricultural University to decide whether his application can be sent through the proper channel, or not. Another representation was made by the petitioner on 24.01.2014. Again on 29.01.2014, the petitioner Page 17 of 27 C/SCA/1733/2014 JUDGMENT represented to the Vice Chancellor of the Navsari Agricultural University to forward his application through the proper channel and issue a "No Objection Certificate", by considering his case as a special one. Ultimately, on 29.01.2014, the Vice Chancellor of the Navsari Agricultural University forwarded the application of the petitioner to respondent No.2- University, through the proper channel and issued a "No Objection Certificate", stating therein, that the said University has no objection if the petitioner is interviewed for, or appointed to, the post of Associate Professor by respondent No.2-University. The main, and only, objection taken by the learned advocate for respondent No.2 is that the application of the petitioner sent through the proper channel, was forwarded and received after the last date for the receipt of applications, that is, 30.04.2013.
11. Learned advocate for respondent No.2 has relied upon a judgment of the Supreme Court in Ashok Kumar Sonkar Versus Union of India and others (supra), in support of his submission regarding the fixation of a cut-off date. In the said judgment, the Supreme Court has held that in absence of any cut-off date specified Page 18 of 27 C/SCA/1733/2014 JUDGMENT in the advertisement or in the rules, the last date for filing the application must be considered as cut- off date. In that case, the appellant therein did not hold the requisite qualifications as on the said cut- off date. It was, therefore, held that he was not eligible for the post in question. Such a situation does not arise in the present case where the facts are different. The principles of law enunciated in the above-quoted judgment of the Supreme Court cannot be disputed. However, they would not be applicable to the facts and circumstances of the present case, wherein the question to be decided is whether, on the facts and in the circumstances of the case, the application of the petitioner which was forwarded in time through the proper channel but received late for no fault of his own, ought to be entertained to the extent of permitting the petitioner to appear in the interview, or not.
12. Learned advocate for the petitioner has placed reliance upon the case of K.N. Guruswamy v. The State of Mysore and others (Supra), wherein the Supreme Court was dealing with a little irregularity in Page 19 of 27 C/SCA/1733/2014 JUDGMENT exercise of authority by the Excise Commissioner who had accepted the bid of the respondent in that case, though he had not approached him through the proper channel. The challenge to the exercise of discretion by the Excise Commissioner was negatived by the Supreme Court in the following terms:
"16. It is admitted that the contract was auctioned on 27th April, 1953; it is admitted that the appellant bid up to Rs. 1,80,000 and it is admitted that that was the highest bid; it is also admitted that the contract was knocked down in his favour. But that was not final because under Rule II. 8 the sale was expressly subject to the formal confirmation of the Deputy Commissioner who is given a discretion to accept or reject a bid. The Deputy Commissioner did not give his sanction but equally he did not exercise his discretion. But that can be treated as an irregularity in this case because even if sanction had been given it was subject to revision by the Excise Commissioner "for special reasons". That fact distinguishes this case from
- "Commissioner of Police, Bombay v. Gordhandas Bhanji', AIR 1952 SC 16 (B).
17. Now the Excise Commissioner exercised his authority: a little irregularity it is true Page 20 of 27 C/SCA/1733/2014 JUDGMENT because the matter did not reach him through the proper channel; but that would not call for interference by way of a writ. The substance of the thing is there and as the High Court was not a Court of appeal it could not have been called upon to correct a mere technical error in the exercise of a jurisdiction which was otherwise valid. It must be remembered that the Excise Commissioner was not a Court of law whose seisin was dependent upon the filing of a regular appeal."
(emphasis supplied)
13. On the basis of the above principles of law, it is contended by the learned advocate for the petitioner that though the petitioner did submit his application through the proper channel, however, the delay caused in the process of sending it to respondent No.2-University was at the end of the Navsari Agricultural University and cannot be attributed to the petitioner. This Court is in agreement that the principles of law enunciated by the Supreme Court in the above-quoted judgment would be applicable to the facts of the present case.
14. The other two judgments relied on by the learned advocate for the petitioner are not being discussed as Page 21 of 27 C/SCA/1733/2014 JUDGMENT they do not appear to be directly applicable to the case in hand.
15. It is clear from the record that there was no delay on the part of the petitioner in making the application through the proper channel. The last date of acceptance of the application was 30.04.2014 whereas the petitioner had made an application, through the proper channel, on 15.04.2013. Not only that, the petitioner has also made an application directly to respondent No.2-University on 15.04.2013. Though it was not through the proper channel, however, there is no dispute that it was received by respondent No.2-University on 29.01.2014. The delay on the part of the Navsari Agricultural University in forwarding the application which was made well in time, cannot be attributed to the petitioner. Ultimately, the Navsari Agricultural University did forward the application of the petitioner to respondent No.2-University along with a "No Objection Certificate", though after the last date for the receipt of applications.
16. It is not the case of respondent No.2-University that the petitioner is not qualified or eligible to be Page 22 of 27 C/SCA/1733/2014 JUDGMENT interviewed for the post of Associate Professor. Neither has it been stated in the affidavit-in-reply filed on behalf of respondent No.2-University, or orally submitted on behalf of respondent No.2- University that any prejudice would be caused to the University if the petitioner is called for interview. There are no financial implications in the matter that could result in a financial or any other kind of loss to the University.
17. Insofar as the argument regarding the cut-off date is concerned, in the present case it is clear that the petitioner was not at fault for the delay in forwarding his application through the proper channel, which caused it to reach respondent No.2-University belatedly, after 30.04.2013. In fact, the application sent by the petitioner directly, did reach respondent No.2-University well before the cut-off date of 30.04.2013. In the circumstances, it cannot be said that the petitioner was negligent and had not taken any timely steps. Further, no illegality has been committed by the petitioner so as to dis-entitle him to appear in the interview. At the most, it can be said that there is an irregularity, which has Page 23 of 27 C/SCA/1733/2014 JUDGMENT ultimately been cured by respondent No.2-University.
18. As held by the Supreme Court in K.N. Guruswamy v. The State of Mysore and others (Supra), the substance of the matter ought to be looked at. In this case, a mere technical irregularity cannot be permitted to deprive the petitioner of his chance of appearing in the interview, especially as he is not at fault for the delay and the irregularity has been cured later on.
19. Normally, this Court would not come to the aid of a candidate who fails to apply within the stipulated period of time. However, such is not the case here as the petitioner has applied well in time. However, due to circumstances beyond his control, his application was not forwarded before the last date for acceptance of applications. This Court, therefore, is of the view that the petitioner deserves to be given a chance to appear in the interview.
20. Insofar as the objection raised by the learned advocate for respondent No.2 regarding non-joinder of a party, the same has no basis or foundation, as no Page 24 of 27 C/SCA/1733/2014 JUDGMENT relief has been claimed against the Navsari Agricultural University, which has ultimately forwarded the application of the petitioner along with a "No Objection Certificate". The petitioner is not aggrieved by its action.
21. It has been contended on behalf of respondent No.2-University that the petitioner took no steps but sit idle after the Navsari Agricultural University returned his application to him. This submission is belied from the record which reveals that the petitioner was diligently pursuing his case with the Navsari Agricultural University. On 23.05.2013, the petitioner made a representation that the Vice Chancellor of the Navsari Agricultural University may decide the issue of forwarding his application through the proper channel. It has been submitted that the petitioner remained idle upto 29.01.2014. This submission cannot be accepted as the time taken for decision was on the part of the Vice Chancellor of the Navsari Agricultural University, therefore, no negligence can be attributed to the petitioner. The petitioner has made another representation on 29.01.2014, and ultimately the Vice Chancellor of the Page 25 of 27 C/SCA/1733/2014 JUDGMENT Navsari Agricultural University has forwarded his application and granted "No Objection Certificate" on the same date, which has been received by respondent No.2-University on 30.01.2014.
22. The other submissions advanced by the learned advocate for respondent No.2-University have no relevance to the point at issue and are not worthy of any further discussion.
23. The interview has not yet been held and is scheduled to be held on 10.02.2014, as stated by the learned advocate for respondent No.2-University. In view of the peculiar facts and circumstances of the case as discussed hereinabove, the interference of this Court is called for.
24. Accordingly, the petition is allowed. Respondent No.2-University is directed to permit the petitioner to appear in the interview for the post of Associate Professor on 10.02.2014.
25. It is made clear that this order has been passed on the particular facts of the present case and will not be a precedent in other cases.
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C/SCA/1733/2014 JUDGMENT
26. It is further clarified that this order shall not create any right in favour of the petitioner, insofar as the process of recruitment to the post of Associate Professor is concerned.
Rule is made absolute, accordingly.
27. Learned advocate for respondent No.2 may convey this order immediately to respondent No.2, to ensure compliance.
(SMT. ABHILASHA KUMARI, J.) piyush Page 27 of 27