Karnataka High Court
Neha Kulkarni vs The University Of Agricultural ... on 9 July, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
W.P.No.201486/2018 (S-RES)
Between:
Neha Kulkarni
D/o Ashwath Rao Kulkarni
Age: 28 years
Occ: Asst. Agriculture Officer
Raitha Samparka Kendra
Office of Asst. Director of Agriculture
Near District Court, Raichur - 584 104
... Petitioner
(By Sri P. Vilas Kumar Marthand Rao, Advocate)
And:
1. The University of Agricultural Sciences
Raichur, through its Registrar
Lingasuguru Road, Raichur - 584 104
2. Veena. T D/o Anjaneya T
Asst. Professor
Department of Processing
And Food Engineering, College of
Agricultural Engineering
University of Agricultural Science
Raichur (Lingsugur Road) - 584 104
Post Box No.329
2
3. Agricultural Scientist Recruitment Board
Indian Council of Agricultural Research
(Krishi Anu Sandhana Bhavan-I)
Pusa, New Delhi - 110012
... Respondents
(By Sri Amresh S. Roja, Advocate for R1;
Sri Ravindra Reddy, Advocate for R2;
Notice to R3 Served)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the
appointment of respondent No.2 who was appointed by
respondent No.1 and whose appointment order has not been
furnished even inspite of request made by the petitioner
under the RTI Act dated 23.03.2018 as per Annexure-C and
consequently, issue a writ of mandamus directing
respondent No.1 to appoint the petitioner to the post of Asst.
Professor in Agricultural Engineering in General Merit
pursuant to the Notification vide No.R/UASR/Rectt./Advt.11/
3604/2015-16 dated 09.01.2016, which is marked as
Annexure-A, with all consequential benefits.
This petition coming on for Preliminary Hearing in 'B'
Group, this day, the Court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for respondent Nos.1 and 2. 3 Though respondent No.3 is served with the notice issued by this Court, it remained absent.
2. The petitioner has called in question the appointment of respondent No.2 by respondent No.1 to the post of Assistant Professor in Agricultural Engineering particularly in General Merit, pursuant to the Notification No.R/UASR/Rectt./Advt.11/3604/ 2015-16 dated 09.01.2016 as per Annexure-A. The petitioner has sought for quashing of the said appointment given to respondent No.2 by respondent No.1 on various grounds.
3. It is the contention of the learned counsel for the petitioner in support of the grounds urged in the memorandum of writ petition that, according to the Notification as per Annexure-A, respondent No.1 has called for recruitment to the various posts of Teachers and Professors in the University of Agricultural Sciences, Raichur. The petitioner as well as respondent 4 No.2 had applied for the post of Assistant Professor of Agricultural Engineering as per the Notification. For the said post, the qualification required was 55% marks or its equivalent of the Master's Degree level in a relevant subject from a recognized University and also National Eligibility Test (for short 'NET') is compulsory along with one publication in NAAS (National Academy of Agricultural Sciences, New Delhi) rated referred journal for recruitment to the post of Assistant Professor and equivalent in the disciplines in which NET is conducted. However, essentiality of NET can be waived-off for the candidates having Ph.D., degree. The petitioner and respondent No.2 admittedly are not holding Ph.D., degree. However, both claim that they have NET certificates and also they have qualification with reference to the Master Degree in the relevant subject. Therefore, it is contended that both have claimed that they are eligible for the said post.
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4. The learned counsel further contended that the mode of selection for the said post was consideration of percentage of marks obtained in the Master Degree i.e., 55% as contemplated and also percentage of marks obtained in the NET and highest of the aggregate has to be taken into consideration for the purpose of selecting a person.
5. The learned counsel further contended that respondent No.2 originally applied as per the said notification by filing application for the post under the Category of 'ST', but she was selected in the General Merit category considering the percentage of marks obtained only in Master's degree level but NET percentage so far as the eligibility test is concerned has not been taken into consideration. Therefore, considering the marks obtained in the NET by the petitioner and respondent No.2, in fact, the petitioner has obtained 59% in the NET as per Annexure-B. 6 Therefore, in order to get the appointment in the General Merit category, respondent No.2 ought to have at least scored minimum of 50% in the NET examination so as to make herself eligible to the above said post.
6. It is further argued that respondent No.2 has not obtained 50% minimum qualifying marks in NET examination. The learned counsel for respondent No.1 submitted that respondent No.2 has obtained required minimum of 42% in the NET examination. Therefore, petitioner's counsel on the basis of the said submission submitted that she was not at all eligible to get the appointment particularly under General Merit category. Therefore, the said appointment order is illegal and the same is liable to be quashed. He has also taken me through the National Eligibility Test Notification and also Notification issued by respondent No.1 calling for the post of Assistant Professor and also he has drawn 7 my attention to the marks obtained by the respective parties. On all the above said grounds, it is contended that respondent No.2 was not at all eligible even to apply for the post under the General Merit category. Therefore, the appointment order issued by respondent No.1 in favour of respondent No.2 is illegal and the same is liable to be quashed.
7. Per contra, learned counsel appearing for respondent Nos.1 and 2 have contended that Annexure- A which is the notification issued by respondent No.1 calling for the post of Assistant Professor of Agricultural Engineering for which both the petitioner and respondent No.2 have applied does not specify that the percentage obtained in the NET will also be taken into consideration and aggregate of the marks obtained in the Master's Degree level in a relevant subject and the marks obtained in the NET will be taken into consideration is not stated in the notification. What is 8 stated in the notification is, in order to apply for the said post, one has to possess NET certificate compulsorily nothing more than that. Percentage obtained in the NET has nothing to do with the qualification required for the said post. The learned counsel also contended that the National Eligibility Test is only an examination for the purpose of qualifying the persons to apply for the post of Lecturers, Assistant Professors in the said Agricultural Universities etc. Therefore, it is only eligibility certificate which is required irrespective of the marks obtained therein for the purpose of submitting their applications to the respective posts.
8. In this particular case, both the counsels have submitted that in the NET examination respondent No.2 has scored 42%. The NET notification prescribes only 40% passing marks so far as SC/ST/Divyang candidates are concerned for the purpose of qualifying 9 NET. Respondent No.2 has scored 42% for the purpose of submitting the applications for the posts noted in the said notification as per Annexure-A. Therefore, taking into consideration the above said marks obtained in the Master Degree and other tests by the petitioner and respondent No.2, aggregately the petitioner has obtained 35.08 marks wherein respondent No.2 has obtained 35.95 marks. In this background, it is contended that, respondent No.2 has scored more marks than the petitioner. Therefore, she was appointed rightly by respondent No.1. Under the above said circumstances, respondent No.1 has followed all the procedure and there is no violation of any rule. As such, the writ petition is liable to be dismissed.
9. In the wake of the above said submissions, I have carefully examined the notification issued by respondent No.1 and NET examination notification; marks list prepared by respondent No.1 and the 10 aggregate marks allotted to the candidates as per Annexure-R1(d) and also the procedure followed by respondent No.1 as per Annexure-R1(e). Annexure-A notification inviting the applications for appointments prescribes the following qualification so far as appointment of Assistant Professor Cadre which is at Item III in Annexure-A:
III. Assistant Professor Cadre:
i. Good academic record with at least 55% marks or its equivalent at the Master's Degree level in a relevant subject from a recognized University.
ii. NET is compulsory along with one publication in NAAS (National Academy of Agricultural Sciences, New Delhi) rated refereed journal for recruitment to the post of Assistant Professor and equivalent in the disciplines in 11 which NET is conducted.
Essentiality of NET can be waived-off for the candidates holding Ph.D. degree provided it has been done with course work as prescribed by the UGC Regulations 2009, and the candidate has at least two full length papers in journals having a NAAS rating not less than 4 or a minimum of 4 full length papers in NAAS rated SAU journals, as on the last date of submission of application. Those candidates with Ph.D. degree without course work will not qualify for NET exemption.
iii. xxx iv. xxx v. xxx vi. xxx 12
10. Of-course on plain reading of this notification, the qualification required for the purpose of Assistant Professor is atleast 55% or its equivalent at the Master's Degree level in a relevant subject from a recognized University. There is no dispute so far as petitioner and respondent No.2 are concerned that they are eligible under this particular academic qualification. Second part of the said notification says that NET is compulsory along with one publication in NAAS. However, NET essentiality can be waived-off for the candidates holding Ph.D., degree. It is also not that petitioner and respondent No.2 are claiming under this category that they have any Ph.D., degree in their favour. Therefore, according to the notification, NET Certificate and the Master degree with 55% minimum qualification is the requirement under the notification. On reading of this notification, there is no specification that the percentage of marks obtained in NET will also be taken into 13 consideration for the purpose of qualification of the candidates.
11. Now coming to the other part of the same notification so far as the minimum marks specified for placing in the selection panel for Professor is 50, Associate Professor is 40 and Assistant Professor is 30 marks with relaxation of 5 marks for SC & ST candidates. Therefore, though the academic marks prescribed is 55% for the Master Degree, for the purpose of selection of the candidates, as per the process of selection, 30 marks is prescribed under the notification. Therefore, for the purpose of succeeding to the post of Assistant Professor one has to atleast score 30 marks in the selection process. There is no dispute so far as this aspect is concerned, the petitioner has obtained 35.08 and respondent No.2 has obtained 35.95 marks.14
12. In this particular case, the only criteria strongly canvassed before this Court is that, in the NET examination, the petitioner has scored 59% marks wherein respondent No.2 admittedly as per the submission made by respondent No.1 has obtained only 42% marks. However, the canvass addressed before this Court is that, notification as per Annexure-F prescribes that, for the purpose of selection to the post of Assistant Professor, NET examination percentage shall also to be taken into consideration. It is contended that in order to apply for the post of Assistant Professor as per notification at Annexure-A, if SC/ST candidates want to apply or secure post under the General Merit, he should have passed NET examination with minimum qualifying marks of 50%. If the said person claims reservation under SC/ST, required minimum qualifying marks is only 40%.
Condition No.xiv of the notification says that: 15
"Only such SC/ST/OBC/Divyang (OH) candidates who are selected on the same standard as applied to unreserved candidates shall be treated as own merit candidates. If any SC/ST/OBC and Divyang (OH) candidate qualify after getting any relaxation in age, no. of attempts or qualifying marks than what is provided for Unreserved category candidates then such SC/ST/OBC/Divyang candidate shall be considered only against the reserved vacancies for the particular category and they shall not be considered for appointment against an unreserved vacancy".
Plan of examination for NET (I)-2017 is as follows:
"There will be one paper of 150 marks consisting of 150 objective type multiple choice questions to be solved in 2 (Two) hours. Each question carries one mark. These 150 questions shall be derived from the respective discipline in which the candidate has opted to appear.16
Minimum marks required for qualifying NET (I)-2017 is as follows:
Category of Minimum qualifying
candidate marks
Un-reserved (UR) 75.0 (50%)
OBC (Non-Creamy 67.5 (45%)
Layer)
SC/ST/Divyang 60.0 (40%)
13. This particular notification at Annexure-F discloses that National Eligibility Test (NET) is a qualifying examination for determining eligibility for the position of Lecturer/Assistant Professor in the State Agricultural Universities (SAUs) and other Agricultural Universities (AUs). Candidates clearing the National Eligibility Test will be eligible to apply for the post of Lecturers or Assistant Professors in the SAUs/AUs. NET certificates will be issued by the ASRB to the qualified candidates to enable them to apply against vacancies to be notified or advertised by the State Agricultural Universities/Agricultural Universities. SAUs/AUs will satisfy themselves with regard to 17 fulfillment of prescribed eligibility condition/criterion for requisite posts of Lecturers/Assistant Professors including authenticity of the NET Certificate in the possession of the candidates. So on reading of this particular notification meticulously, it prescribes qualification for applying to the post noted in the above said notification. The said notification Annexure-F also declares what is the minimum qualifying marks to be obtained for the purpose of getting NET certificate only and it does not prescribe any marks for the propose of filing the application for different categories i.e., for unreserved categories. For the purpose of passing NET examination, the said marks have to be taken into consideration, in my opinion, that has nothing to do with reference to the notification as per Annexure-A. Therefore, the above said notification as per Annexure-F only prescribes percentage of marks for the purpose of obtaining NET certificate and not for the purpose of any other notification. Therefore, when notification at 18 Annexure-A does not disclose that the percentage of marks obtained in the NET examination will be taken into consideration and unless such consideration is mentioned in the notification, the Court cannot read into the percentage of marks obtained in the NET examination as a legal requirement for selection. The NET examination is only criteria for getting eligible for the purpose of filing the application but specifically Annexure-A disclose that prescribed qualification is Master Degree with 55% of marks.
14. Now coming to the marks obtained by the parties as per Annexure-R1(d). Considering all the criteria, respondent No.2 has obtained 35.95 marks wherein the petitioner has obtained 35.08 marks. Therefore, though respondent No.2 has contested originally for the ST post, as she has acquired more marks compared to other General Merit candidates particularly, 35.95 marks, the appointment order was 19 issued in favour of respondent No.2. In my opinion, issuance of appointment order in favour of respondent No.2 nowhere violates any of the provisions or any of the conditions contained in notification at Annexures-A & F.
15. Under the above said circumstances, I do not find any strong reasons to interfere with the appointment order issued by respondent No.1 in favour of respondent No.2. Hence, the petition is devoid of merit and the same is liable to be dismissed and accordingly, it is dismissed.
Sd/-
JUDGE NB* Ct: RRJ