Karnataka High Court
Dr. Sridevi Pg vs Karnataka University on 11 April, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1 R
IN THE HIGH COURT OF KARNATAKA AT
DHARWAD BENCH
DATED THIS THE 11TH DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT APPEAL No.100226/2021
BETWEEN:
Dr. Sridevi P.G.,
Aged about 41 years
Assistant Professor in English
Karnataka University Dharwad
C/o N.B. Kajjari,
No.26, Ramanagar,
Near Sangam Theatre,
Dharwad -580 001. ... Appellant
(By Sri Prof. Ravivarma Kumar, Senior Counsel
for Sri Raja Raghavendra V. Naik, Advocate)
AND:
1. Karnataka University
Dharwad
Rep. by its Registrar
Pavate Nagar
Dharwad - 580 003.
2
2. Manjunath Mallinath Hiremath
S/o Mallinath Hiremath
Aged about 46 years
R/o Beside Khoday Hostel
Sirur Park,
1st Stage,
Hubballi Tq.,
Dharwad District,
Dharwad - 580 001. ... Respondents
(By Sri Mallikarjun S. Hiremath, Advocate for R1;
Sri Aditya Sondhi, Senior Counsel for
Sri Avinash M. Angadi, Advocate for R2)
This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act 1961, praying to set aside the
order dated 26.08.2021 passed in Writ Petition
No.100859/2016 (S-RES) and restore the appointment
order of the Appellant as in same cadre in the interest of
justice and equity.
This Writ Appeal having been heard and reserved on
17.03.2022 and coming on for pronouncement of
judgment this day, S. Sunil Dutt Yadav J., delivered the
following:
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JUDGMENT
S. SUNIL DUTT YADAV. J This Judgment has been divided into the following Sections to facilitate analysis: I Preamble 4 II ANALYSIS: 10
(i) Qualification for the post of Assistant 10 Professor in terms of the notification at Annexure-'A' dated 11.01.2014.
(ii) Minimum Qualification as per UGC 14 Regulations 2010 (iii) Eligibility of Respondent no.2 16
(iv) The Court cannot sit in appeal nor interfere 25 with the decisions taken by Academic Authorities:-(v) Delay and Latches 27 III Order 36 4
I PREAMBLE The present appeal is filed challenging the order of the learned Single Judge passed in W.P.No.100859/2016 vide order dated 26.08.2021 whereby the appointment of the appellant to the post of Assistant Professor (P.G.) in English vide Annexure-K dated 26.02.2014 came to be quashed and a consequential direction came to be issued to the University to redo the selection process amongst the eligible candidates and to pass orders of appointment.
2. The parties are referred to by their ranks in the writ proceedings for the purpose of convenience.
3. The 1st respondent - University by its advertisement at Annexure-A invited applications for appointment of Assistant Professors in English apart from other posts, in response to which the petitioner, respondent No.2 and various other eligible candidates applied. The respondent No.2 came to be selected. 5
4. The said selection came to be assailed on the ground that the respondent No.2 did not have the requisite qualification insofar as the Ph.D. conferred on her was without course work and that she had not completed her NET/SLET/SET which according to the petitioner were mandatory requisites in terms of the recruitment notification at Annexure-A. It was contended that the recruitment notification having prescribed that the applicants were to strictly adhere to the UGC Regulations on Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010, (hereinafter referred to as the UGC regulations, 2010) the respondent No.2 did not possess the eligibility.
5. The respondent No.2 on the other hand had contended that she had Ph.D qualification and had obtained a certificate of exemption for undergoing course work from the University, that course work was not a 6 requirement prescribed by the UGC, 2010 Regulations. It was also contended that the petitioner was not entitled for relief as the petition was filed after a delay of about 02 years.
6. The University on the other hand while justifying the selection had contended that the Selection Commission/ Board of Appointment had followed the procedure under Section 53(a) and 53(7) of the Karnataka State Universities Act, 2000 and had made recommendations for appointment and that interference in a selection process where decision was taken by experts ought not to be made except where malafides are made out which is not so in the present case.
7. The above is only a brief overview of the contentions which are considered in detail while analyzing the contentions infra.
8. The learned Single Judge has set aside the appointment of respondent No.2 and the relevant observations and findings are as follows: 7
(i) The notification dated 11.01.2014 at Annexure-A prescribes the minimum qualification in terms of the UGC Regulations of 2010.
(ii) As per the eligibility the candidate must possess a minimum of 55% marks in the Masters Degree and must have cleared NET/SLET/SET conducted by UGC or CSIR.
(iii) Exemption is given to candidates who have been accorded Ph.D in accordance with the Regulations of 2009.
(iv) It is not in dispute that respondent No.2 has not cleared the NET/SLET/SET and did not possess the minimum eligibility.
(v) As per the notification candidates
who have completed their Ph.D after
11.07.2009 must have completed the Ph.D. with course work. That as the respondent No.2 had completed Ph.D in the month of December, 2012, she ought to have completed Ph.D degree with course work, which she had not.8
(vi) The Court observes that the UGC Regulations, 2010 have been framed in
exercise of the power conferred under Clauses
(e) and (g) of Sub-Section 26 of University Grants Commission Act, 1956 and minimum qualifications for appointment having been prescribed the same cannot be relaxed.
(vii) The Committee of Experts is required to strictly follow the regulations and cannot overlook the regulations which prescribes minimum eligibility qualification.
(viii) The petitioner possessed the minimum qualification and was also the highest marks scorer at the Masters Degree amongst the candidates.
(ix) The respondent No.1 - University by granting the certificate of exemption had relaxed the minimum eligibility qualification prescribed by the UGC Regulations.
(x) The respondent No.2 had none of the qualifications viz.,
(a) Had not cleared the 3 eligibility tests prescribed by the UGC or CSIT.
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(b) Had not obtained a Ph.D degree under Regulations of 2009.
(c) Had not obtained Ph.D. Degree with course work.
9. With the above findings the appointment of respondent No.2 was set aside and the University was directed to redo the selection process as regards all eligible candidates including the petitioner.
10. We have heard Sri. Ravi Verma Kumar, learned Senior counsel appearing on behalf of Sri.Raja Raghavendra Naik, learned counsel for the 2nd respondent (appellant in appeal) and Sri. Aditya Sondhi, learned Senior counsel appearing on behalf of Sri. Avinash M. Angadi, learned counsel for the petitioner (2nd respondent in the Appeal) and Sri. Mallikarjun S. Hiremath for respondent No.1 - University.
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II ANALYSIS
(i) Qualification for the post of Assistant Professor in terms of the notification at Annexure-'A' dated 11.01.2014.
11. It must be noted as observed above that the learned Single Judge has concluded that the respondent No.2 had no eligibility in light of not having passed the eligibility tests conducted by UGC or CSIR, as she had not obtained the Ph.D Degree under the Regulations of 2009 nor had obtained Ph.D Degree with Course Work.
12. In the light of the said findings, it is necessary to determine eligibility applicable for selection to the post of Assistant Professor.
13. The notification at Annexure-'A' dated 11.01.2014 inviting applications for the post of Assistant Professor - English stipulates "qualification for above course shall be as per the UGC Regulations 2010 as shown below."
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14. As regards the post of Assistant Professor, the stipulation in the notification is extracted below:-
"ASSISTANT PROFESSOR:
Arts, Humanities, Sciences, Social Sciences, Commerce & Languages.
Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university. (See Other Conditions No.17).
Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET Notwithstanding anything contained in above two paras, candidates who are, or have been awarded a Ph.D Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award 12 of Ph.D. Degree) Regulations, 2009, 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.
NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/ SET is not conducted.
Those who have obtained PhD degree after 11.07.2009 must have completed PhD. with course work.
The applicants while applying must
strictly adhere to the UGC (Minimum
qualifications for appointment Teachers in
Universities and Constituent Colleges)
Regulations, 2010.
(emphasis supplied)
In case of MBA course a preference will be given to the candidates who possess PhD. Degree in accordance with UGC (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009/NET/ SLET/SET.13
An allocation of 8% of total posts in the category of Assistant Professor shall be accorded to the candidates from Hyderabad- Karnataka Region, i.e. one post for SC: one post for GM and one post for ST on pooling system basis.
For the post of Assistant Professor in the subject of Bio-Technology a due preference will be given to the candidates with M. Sc. in Botany/Biotechnology/ Micro Biology with Plant Biotechnology or Plant Pathology.
15. It becomes clear from the above notification that what is prescribed as eligibility is -
(i) good academic record with 55% of marks at the Masters Degree Level in the relevant subject;
(ii) Besides the above, the candidates must have cleared National Eligibility Test (NET) conducted by UGC, CSIR or similar Test accredited by UGC like SLET/SET.
(iii) As regards those who have been awarded Ph.D in accordance with University Grants Commission (Minimum Standards and 14 Procedure for Award of Ph.D Degree Regulations, 2009) there is an exemption from requirement of minimum eligibility condition of NET/SLET/SET.
(iv) Those who have obtained Ph.D Degree after 11.07.2009 must have completed Ph.D with Course Work.
(v) The applicant while applying must strictly adhere to UGC (Minimum Qualifications for Appointment of Teacher in Universities and Constituent Colleges) Regulations, 2010.
(ii) Minimum Qualification as per UGC Regulations 2010
(i) 3.3.0 :- Good academic record, 55% marks at the Masters level and qualifying in National Eligibility Test (NET), or an accredited Test or State Level Eligibility Test (SLET/SET).
(ii) 3.3.1:- NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professor.
Candidates awarded Ph.D Degree in accordance with UGC Regulations 2009 shall be exempt from requirement 15 of minimum eligibility condition of NET/SLET/SET for recruitment and appointment. Similar qualifications prescribed under 4.4.0, 4.4.1.
16. What becomes clear from the above is that the candidate must have 55% marks at the Masters level and must have qualified in the NET or accredited SLET/SET and exemption regarding NET or SLET/SET is available only as regards those candidates who have been awarded Ph.D in accordance with the UGC 2009 Regulations. This would be in terms of the UGC Regulations of 2010.
17. What further comes out from the Notification at Annexure-'A' which would go beyond the prescription under the UGC Regulations of 2010 is that:-
(a) Those who have obtained Ph.D Degree after 11.07.2009 must have completed Ph.D with Course Work.
18. Accordingly, a combined reading of the Notification dated 11.01.2014 and UGC Regulations 2010 16 relevant for the present purpose to ascertain eligibility and qualification would be as follows:-
(i) Master Degree with at least 55% marks;
(ii) NET or SLET/SET;
(iii) Exemption from any NET/SLET in the event Ph.D Degree is awarded in terms of the UGC 2009 Regulations;
(iv) Those who have obtained Ph.D Degree after 11.07.2009 must have completed Ph.D with Course Work.
(iii) Eligibility of Respondent no.2
19. Insofar as the eligibility of the second respondent is concerned, there is no doubt she has completed her Ph.D Course and has been awarded her Ph.D by the first respondent University on 15.02.2013.
20. The exemption from the NET/SLET/SET would be where the Ph.D had been conferred under the UGC Regulations of 2009. Clearly, exemption being an exception to the general rule has to be made out strictly in 17 terms of the Regulations and cannot be stretched beyond the plain terms.
21. The stand of the University in the affidavit filed by the Registrar, Karnataka University, Dharwad on 15.11.2021 is that the second respondent had registered herself for the Ph.D Course in the month of July 2007 under the prevailing 2005-2006 Regulations governing Ph.D. Course. (see para 3 to 6 of the affidavit filed by the Registrar, Karnataka University Dharwad filed on 15.11.2021 in writ appeal proceedings). As the aforesaid Guidelines did not have any provision for Course Work, exemption was granted as regards Course Work.
22. It is also an admitted position that the second respondent did not perform her Course Work. It is the stand of the University that the second respondent was conferred with Ph.D in terms of the 2005-2006 Regulations and accordingly there was no insistence on course work. If that were to be so, the second respondent ought to have completed the eligibility test of NET/SLET/SET. The 18 exemption from passing such eligibility test being available to only those who were conferred Ph.D under 2009 Regulation, the requirement of NET/SLET/SET could not have been waived. This is also the conclusion reached by the learned Single Judge which cannot be faulted.
23. In fact, the document produced by the second respondent (Annexure-'AB') dated 20.02.2015 would indicate that Ph.D was conferred in terms of the Regulations implemented in the year 2005-06 and that "...... 4. The UGC (Minimum Standards and Procedure for award of M.Phil/Ph.D Degree) Regulations, 2009 do not apply to this candidate." Accordingly, the oral contention advanced on behalf of the respondent no.2 that respondent no.2 had completed Ph.D as per 2009 Regulations is liable to be rejected.
24. Once the exemption of clearing the Eligibility Tests is inapplicable, the second respondent is ineligible. The requirement of Course Study with Ph.D as mandated in the notification would be an additional eligibility and as 19 to whether such requirement has been fulfilled need not be determined in light of the second respondent being otherwise ineligible for not having cleared NET/SLET/SET.
25. Even otherwise, the recruiting Authorities would always be free to prescribe any requirement in addition to the minimum requirement as stipulated under the UGC Regulations 2010. No doubt, the UGC Regulations of 2010 do not prescribe for a Ph.D Degree with Course Work, which however, has been prescribed in the Notification at Annexure-'A'. Any prescription that does not have the effect of lowering the minimum eligibility criteria as prescribed by the Ph.D is neither impermissible nor can be faulted and accordingly, to hold that Notification at Annexure-'A' prescribes something in addition to the eligibility condition under the UGC Regulation of 2010 is impermissible, cannot be accepted. Further, the 2nd respondent having participated in the selection process and having been selected cannot now contend that the stipulations in the notification seek to 20 impose an additional criteria beyond that which is stipulated in the UGC Regulations.
26. It is also to be noted that the relaxation in the notification under certain circumstances could be allowed where the notification prescribes a qualification beyond the minimum eligibility prescribed under the Recruitment Rules. It is in that context that the question as to exemption from course work could be permissible would arise insofar as the recruitment rule does not advert to the aspect of course work.
27. Even without entering into such a question what remains is as to whether the University has the power to exempt requirement of NET/SLET/SET. In the present case, it ought to be noted that the notification mandates strict adherence to UGC Regulations, 2010. As already noted above, requirement of clearing the NET/SLET/SET is mandatory as per the UGC Regulations, which are eligibility criteria and it cannot be contended that the Board of Appointment/Selection Committee of the 21 University has the power to relax the minimum eligibility found in the substantive rules. The High Court of Bombay in the case of Maharashtra Public Service Commission v. Sunil Santhosh Pawar and Others reported in (2019) 1 MHJJ 447 while dealing with power of relaxation has opined that provisions relating to relaxation ought to be construed strictly and that directions for grant of relaxation over and above what was stipulated in the recruitment rules/advertisement, is impermissible.
28. A natural corollary is that relaxation in the minimum eligibility would be impermissible.
29. The contention of the University that the UGC 2016 Regulations introduced an amendment by introduction of a proviso whereby, Ph.D candidates were exempted from requirement of NET/SLET/SET for appointment of Assistant Professor or equivalent position and accordingly, the lack of NET/SLET/SET of the second respondent would not vitiate the selection, cannot be accepted in light of the clarification by the UGC dated 22 30.08.2016 enclosed as Annexure-'R6' to the statement of objections filed by the petitioner in the Writ Appeal proceedings on 09.11.2021. The clarification is as follows:-
"The UGC is receiving queries from various Universities regarding applicability of the UGC Principal Regulations, 2010 and their Amendments in the cases of Direct Recruitment of Teachers and other Academic Staff for the posts advertised prior to issuance of these Amendments.
In this regard, it is clarified that the appointments of Teachers and other Academic Staff through Direct Recruitment shall be governed by the UGC Regulations on Minimum Qualifications for Teachers and other Academic Staff in Universities and Colleges and other measures for the Maintenance of the Standards of Higher Education, 2010 along with their Amendments notified at the time of issuance of the Advertisement and subject to the following conditions:-
1. The University concerned has followed the UGC Regulations on Minimum Qualifications for Teachers and other Academic Staff in Universities and Colleges and other Measures for the 23 Maintenance of the Standards of Higher Education, 2010 along with their Amendments notified at the time of issuance of the advertisement.
2. The advertisement for the post(s) was published before the notification of the subsequent Amendments.
3. Due selection criteria/process as prescribed in the UGC Regulations and their Amendments, in operation on the date of advertisement, was followed.
4. No modification was made subsequently in the original advertisement."
30. Clearly the amendment in 2016 of the UGC Regulations as regards eligibility tests cannot be made applicable to the appointment process of the second respondent whose selection was made pursuant to the Notification issued on 11.01.2014 as on which date the unamended UGC Regulations of 2010 were prevailing. The question of Extending Benefits of the Relaxation of Eligibility Tests of Ph.D Degree holders as introduced in the 24 2016 amendment to the UGC Regulations would not arise in light of the clarification of the UGC.
31. Though learned Senior Counsel Sri.Ravi Verma Kumar contended that such clarification by UGC was impermissible and it is for the Court to construe and decide as to applicability of the relaxation, such argument does not warrant acceptance as the clarification is by the UGC itself.
32. Reliance is placed on the judgment of Madhya Pradesh High Court in the case of Dr.Vandana Rajoriya v. Dr.Harisingh Gour University, Sagar and Others reported in (2019) 2 MPLJ Page 141 wherein the Division Bench has observed that the UGC Regulations of 2006 do not give any new right or liability and the amendment is only clarificatory so as to address ambiguity of the UGC Regulations 2009-2010. However, it ought to be noticed that the report of the Expert Committee dated 23.08.2015 though was prior to the amendment to the Regulation on 11.07.2016, the Executive Council had failed 25 to consider the amended UGC Regulations when it decided on 10.02.2017 and approved order of termination on 13.02.2017, all subsequent to the amendment on 11.07.2016. It is in the light of such facts that the conclusion was arrived at giving effect to the 2016 Amendment, which is not the factual matrix in the present case.
(iv) The Court cannot sit in appeal nor interfere with the decisions taken by Academic Authorities:-
33. The contention that the decision regarding selection has been approved by the Selection Committee/ Board of Appointment consisting of the Vice Chancellor, Three Experts, Dean of the concerned Faculty, Chairman of the Department and Academician nominated by the Chancellor, an Academician representing SC/ST/OBC/ Minority/Woman/Differently abled Categories as nominated by the Vice Chancellor, which is a body of experts and such decision of the body of experts cannot be interfered with by the courts sitting as an appellate body over the experts 26 deserves to be rejected as the Selection Committee/ Board of Appointment has no power to relax the eligibility. If the Committee was considering the suitability of the candidate after eligibility was fulfilled, then the interference on decision of the Committee would have been different. But, in the present case, the eligibility criteria itself has not been fulfilled.
34. The judgments in University of Mysore v.
C.D.Govinda Rao and Another reported in AIR 1965 SC 491 and the case of Basavaiah (Dr) v. Dr. H.L.Ramesh and Others reported in (2010) 8 SCC 372 have been referred to in support of the proposition that courts should be slow in interfering with recommendations made by experts. While there is no quarrel with respect to the said proposition, in the present case, committee itself could not have proceeded with the selection process by relaxing minimum eligibility as pointed above and any such recommendation de hors the requirement of minimum eligibility would not confer any sanctity to the normal 27 protection and plea of eminence to be extended to the decision of experts.
(v) Delay and Latches:
35. It is the contention of the 2nd respondent that the writ petition came to be filed during January, 2016 while the appointment of the 2nd respondent was made on 26.02.2014 and such delay without sufficient explanation has the effect of disentitling the 2nd respondent from any relief.
36. The explanation for the delay is found at Para 12 of the writ petition and it is contended that on receipt of the information under the Right to Information Act in the month of October, 2015 petition has been filed. It is stated that the information that was obtained relates to the 2nd respondent's certificate relating to NET/SLET. The marks secured in the subject of English, Department of Studies in English, Karnataka University, Dharwad, as also letter of appointment of the 2nd respondent and 28 without such information, question of filing the writ petition did not arise. Further it was contended that initial attempts to obtain information from the University did not fructify as University had replied that documents relating to the selection process was in the custody of the Lokayukta as well as retired Justice Sri.Padmaraj Commission. Such assertion is further supplemented by Annexure-R2 filed along with statement of objections of the petitioner in the writ appeal dated 09.11.2021 as well as Annexure-R1 which is a communication dated 18.09.2015 to the effect that the documents relating to the Ph.D. Course certificate of the petitioner were all kept in a sealed cover for inspection of records by the Enquiry Commission and Lokayukta. Such explanation as could be discerned from the pleadings and documents referred could be stated to be sufficient explanation and it cannot be stated that there was an element of negligence and delay which was unreasonable which would disentitle the petitioner for relief.
29
37. On behalf of respondent no.2, various judgment have been relied upon which are dealt with as below:
38. The reliance by the respondent no.2 on the observations made regarding laches in P.S.Sadasivaswamy v. State of Tamil Nadu reported in (1975) 1 SCC 152 cannot be construed as laying down an inflexible rule. Further the observations were made in the context of the particular factual matrix where there was delay of 14 years, the petitioner had not challenged the promotion of respondent no.3 and respondent no.4 and the court had observed that there were three occasions where he could have challenged but had kept quite. The present factual matrix is entirely different.
39. Similarly, the delay of one year was taken note in refusing relief in M/s.Rup Diamonds and Others v. Union of India and Others reported in (1989) 2 SCC 356, where however the court had also noticed the delay of the petitioners in approaching the authorities. Further, 30 the subject matter of the dispute in the said case was such that delay of one year may have been sufficient. But, such conclusion cannot ipso facto cannot be extended to the present case.
40. In the case of Meena Sharma v. State of Jammu & Kashmir and Others reported in (2020) 15 SCC 648, though the delay of 4 years was taken note of for refusal of relief, it is relevant to note that it was the second round of litigation challenging appointment. It was also noticed that in the first round of litigation, when the writ petition was filed in 2009 Annexure A4 to the writ petition had indicated the name of the selected person and having kept quite second writ was filed in 2011 i.e., four years after the selection. Further it is relevant to note the finding that even on merits there was no case.
41. The facts in the present case are however entirely different.
31
42. The other case relied upon by the respondent no.2 is the judgment in City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Others reported in (2009) 1 SCC
168. However, in the said case, there was specific contention that there was a delay of 35 years and in such a context, observation regarding laches has been made, but eventually matter was remanded.
43. In the case of Tukaram Kana Joshi and Others through Power of Attorney Holder v. Maharashtra Industrial Development Corporation and Others reported in (2013) 1 SCC 353 the Apex Court has observed that the question of condonation of delay is one of discretion and has to be decided on the facts of each case and has emphasized on decision to be taken depending on the factual matrix. It has further laid down that in appropriate circumstances a conclusion could be arrived at where illegality is manifest and cannot be sustained on the sole ground of laches. Observations at 32 Para 13 and 14 which are of relevance are extracted hereunder:
13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere inspite of delay.
Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide P.S. Sadasivaswamy v. State of T.N. [(1975) 1 SCC 152 : 1975 SCC (L&S) 22 : AIR 1974 SC 2271] , State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 33 566 : AIR 1987 SC 251] and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 :
(2009) 2 SCC (L&S) 119] )
14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned.
In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185:AIR 1970 SC 769], Collector 34 (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : AIR 1987 SC 1353] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [(1992) 2 SCC 598 : AIR 1993 SC 802] , Dayal Singh v. Union of India [(2003) 2 SCC 593 : AIR 2003 SC 1140] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56 : AIR 2011 SC 2161] .)
44. Further, it must be noted that it cannot be stated that the respondent no.2 being innocent cannot be victimized for no fault. It must be noted that innocence has nothing to do with ineligibility, nor does innocence override ineligibility. Permitting ineligibility to triumph would have the effect of perpetuation of illegality which cannot be allowed.
45. In the facts of the present case, the delay when pitted against illegality in terms of the ineligibility, ineligibility has to give way and delay cannot be allowed to defeat the illegality.
35
46. Though much is made of the information having been obtained by a former syndicate member, the person obtaining information through RTI i.e., source would be irrelevant where the information obtained was not challenged as regards its veracity and cannot be excluded from consideration.
47. The mere continuance of the respondent No.2 for a period of 5 years 7 months from the date of filing of the petition during which period the respondent No.2 is stated to have been promoted would be of no consequence as any equity by continuance in service for substantial period of time during the pendency of the litigation cannot have the effect of overriding the illegality as made out.
48. Accordingly, the contention of delay and latches is also liable to be rejected.
36
49. In the result, we proceed to pass the following:
ORDER The appeal is dismissed. The order of the learned Single Judge is upheld and the directions at (iii) of the order in writ petition to be implemented by the respondent
- University.
Sd/-
JUDGE Sd/-
JUDGE VGR/VP/NP CT:MHP