JUDGMENT
This appeal coming on for further hearing this day, Shylendra Kumar J., delivered the following
Appeal by a person holding a post graduate degree in Computer Applications, i.e M.C.A and who had been certified by the very 1st respondent-Gulbarga University to have completed the post graduate degree in I Class with distinction and had responded to an advertisement issued by the very University, inviting applications, among 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 the University (marked as Annexure-A to the writ petition).
2. The appellant was not successful in his effort to get appointed as a lecturer in M.C.A Department in the University, notwithstanding his qualification for the reason that the University chose to appoint the 3rd respondent, a person holding post graduate degree in Mathematics for this post as a person having qualification in the relevant subject and on the premise that 3 respondent had a Master's Degree in the ‘relevant subject.’
3. It was questioning such appointment issued in favour of the 3rd respondent pursuant to the resolution at Item No. 53 dated 17.4.1999 passed by the Syndicate of the University, appellant had filed the writ petition, W.P No. 19095/99.
4. The appellant contended in the writ petition that 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 (3 respt.) had a post graduate graduate degree in Computer Applications, and on the other hand, petitioner possessing the required post graduate degree and having passed in I Class in distinction, should have been naturally appointed for the post.
5. The learned single Judge who heard the writ petition and the version of the University, held that the words ‘relevant subject’ in the advertisement means qualification prescribed for the post as per U.G.C norms, and did not necessarily mean only a post graduate degree in Computer Applications subject, but even a post graduate degree in Mathematics is also a subject which has to be understood as ‘relevant subject’ for the purpose of appointing a person as Lecturer in M.C.A Course at the University, and such being the view of the Board of Appointment, an expert body for selecting suitable candidates who had considered the applications of the petitioner as well as 3 respondent to the post of Lecturer in M.C.A Department of the University, the appointment pursuant to the resolution of the Syndicate cannot be characterised as either illegal or suffering from any defect, and further being of the view that it will be very unreasonable to hold ‘relevant subject’ to mean only Masters Degree in Computer Applications, and it would be rather irrational to conclude that non-mentioning of the subject Mathematics as a subject would lead to the conclusion that it was only a post graduate degree in Computer Applications which was the qualification prescribed for a person applying for the post of Lecturer in M.C.A Course and in this view of the matter, dismissed the writ petition.
6. The appellant being aggrieved by this order dated 17.08.2004 has filed this appeal, not only for setting aside the impugned order but also for quashing the resolution of the Syndicate insofar as it relates to appointment of the 3 respondent to the post of Lecturer in M.C.A Department, and a further direction to consider his case for such appointment after eliminating the 3 respondent as a person not having requisite qualification.
7. The matter had come up for orders on the application for condonation of delay in filing the application to recall the order dismissing the appeal for non-prosecution and on the application to recall. As per order dated 16.9.2009, we have passed orders on the applications, allowing them. Thereafter, the matter had been taken up for hearing as it was submitted by the learned counsel for the parties that on the earlier occasion when the appeal was dismissed, the matter was at the hearing stage.
8. On hearing Sri. A.M Nagarale learned counsel appearing for the appellant, Sri Chaitanya Kumar, learned counsel for respondents 1 and 2 and Sri Ashok Patn, learned counsel for respondent no. 3-the selected candidate, and on perusal of the order of the learned Single Judge and the advertisement issued by the University inviting the applications for the post of lecturer in terms of Annexure-A to the writ petition, we find the action of the University to be most, surprising, illogical and shocking our conscience to say the least.
9. University invited applications for filling up the post of Lecturer in Computer Applications with requisite qualification being post graduate degree in the relevant subject. The advertisement for the post of lecturer and the qualification condition with reference to the post of lecturer read as under:
GULBARGA UNIVERSITY, GULBARGA
No. GUG/ADM- 1/98-99/1265 Administrative Branch “JNANA GANGA” Dated 22.5.1998
NOTIFICATION
Applications in the prescribed form in eight sets are invited from qualified candidates of Indian nationality for the following teaching posts in various P.G Departments of this University. The applications together with necessary documents should reach the Registrar, Gulbarga University, Gulbarga-585106 by registered post on or before 10.7.1998 Incomplete applications and applications received alter the due date will not be entertained.
Name of post Department Total Backlog Current Vacancy I. Professor … II. Reader … III. Lecturer Rs. 2200-4000 English 02 01-ST 01 Cat IIA Urdu & Persian 01 -- 01-SC Chemistry 02 01-ST 01-SC (Ind. Chemistry 01) (Chemical Engg.-01) Bio-Chemistry 01 01-ST -- Appl. Electronics 01 -- 01-Cat-I Zoology 02 01-ST 01-SC Law 01 01-SC -- *(2 posts) M.C.A 05 01-SC, 01-ST, 02-GM, (1 LC) 01-Cat-I M.B.A 01 -- 01-SC (Functional Course) 01 -- 01-SC Maths (Comp.Sc) Sugar Technology/Engineering. 02 -- 01-SC 01-ST Microbiology 01 01-ST -- Botany (Cytogenetic) 01 -- 01-Cat-I * Journalism & Mass Communication 01 -- 01-Cat-I * Information Sc & Technology 01 01-GM
QUALIFICATION:
The minimum qualifications prescribed for the above posts are as per UGC norms viz.,
3. Lecturer:— Good academic record with at least 55% of marks or an equivalent grade at the Masters Degree level in the relevant subject from an Indian University or an equivalent degree from a foreign University. Candidates besides fulfilling the above qualifications should have necessarily cleared the eligibility test for Lecturers conducted by UGC/CSIR or Similar Test of State Level NET. However candidates who have submitted Ph.D thesis upto 31.12.1993 and candidates who have done M. Phil upto 31.12.1992 are exempted from passing the NET
10. Though such is the advertisement and the appellant a person holding post graduate degree in computer applications and also a person who had passed the state level eligibility test conducted by the Government of Karnataka and could aspire for the post of lecturer in the University and colleges, the University instead of choosing a person who is possessing a post graduate degree in Computer Applications for the post of Lecturer in Computer Applications, chose a person possessing post graduate degree in Mathematics! though the advertisement did not whisper a word about mathematics being the subject for filling up the post of Lecturer, and this is what shocks us.
11. The University very stoutly defended its selection before the learned Single Judge contending that the word ‘relevant subject’ used in the qualification criteria for lecturers would include even a person like the third respondent: a person having post graduate degree in mathematics, as mathematics is one of the subjects taught in the Computer Application course. As an alternative defence, after realising their initial stand that a post graduate degree holder in mathematics is a person with a qualification equivalent to a person holding post graduate degree in Computer Applications cannot be made good as is indicated in an application filed by the University under Order 6 Rule 17 of the C.P.C seeking for amendment of their objection statement to get out of their earlier stand that the post graduate degree in mathematics is equivalent to degree in Computer Application which we find at pages 33 and 39 of the writ appeal papers, the University contended that Mathematics is a relevant subject even as per the notification.
12. While Mr. Vetresh B. Patil learned counsel is not available and on the other hand the University is represented by Mr. Chaitanya Kumar, Mr. Ashok Patil, learned counsel appearing for the third respondent-selected candidate has made a very spirited and bold effort to defend the selection, by pointing out that the third respondent was a person with a very relevant qualification, as mathematics is a relevant subject that in 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 having opined that a person having a post graduate degree in Mathematics is a person having a Masters Degree in relevant subject, this aspect of the matter gets concluded with that opinion, and such opinion of the expert body cannot be made subject matter for judicial review and this submission is sought to be supported by placing reliance on the judgment of the Supreme Court in the case of B.C Mylarappa Alias Chikkamylarappa v. R. Venkatasubbaiah which judgment in turn quotes and relies upon an earlier judgment of the Supreme Court in the case of National. Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman [1992 Supp (2) SCC 481] and other cases referred to in this judgment of the Supreme Court and would submit that the Board of appointment, the expert body has considered the third respondent as a person having the requisite relevant qualification in the subject, and with this the matter gets concluded and should not jurisdiction of judicial review of the administrative action.
13. Perhaps the judgments could have been followed and applied if they had any relevance and applicability to the facts of the present case. We find that the action of the University in advertising the post for one purpose and filling up for a different purpose is nothing short of depriving an equal opportunity to such of all those persons who had the qualification of post graduate degree in mathematics from getting an opportunity for applying to the post and therefore is a clear case of violation of Articles 14 and 16 of the Constitution of India. The University has misused and abused its power of appointment to the post of lecturer by 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 person and to go shopping for appointing a person holding a post graduate degree in mathematics by contending before the Court that the expert body thought that a person holding a post graduate degree in the subject mathematics is also a person holding requisite qualification in the “relevant subject” and this, in our opinion, is nothing short of an inexplicable, irrational action and to describe this action as an arbitrary action is only an understatement.
14. The appointment whether it has passed through the Board of Appointment or otherwise is clearly in contravention, with the very advertisement and the further examination of the expert opinion does not arise in a case of this nature, as the University advertised for one post and has made appointment for something else. In fact the third respondent does not possess the requisite qualification. There is no comparison between the third respondent and the appellant and it is rather perplexing as to how the obvious position in law and the clear constitutional mandate of the State being compelled to extend equal opportunity to all eligible persons and also required to act fairly and in a non-arbitrary manner at all times.
15. As we wanted to peruse the records of the University also and the learned counsel appearing for the University requests the matter to be taken up tomorrow for further hearing and for production of relevant records, list this matter for further hearing tomorrow and for concluding this judgment.
16. We direct the Registrar of the University to be present before the court tomorrow i.e on 20.11.2009 with the relevant records.
24.11.2009
FURTHER JUDGMENT
17. We had begun dictating this judgment on 19.11.2009 and when we reached some stage, in the wake of very vehement submission by the learned counsel appearing for the University defending the action of the University, it became necessary for us to have a look at the record of the University and for such purpose, the University was directed to produce the records on the next day i.e on 20.11.2009 and the Registrar of the University was also directed to be present before the Court.
18. On the 20/11/2009, Professor S.M Hiremath, Registrar of University, appeared before us and the development for the day was recorded as per our order of even date, and is as under:
“DVSKJ & KNKJ 20.11.2009 W.A 3216/04
Professor S.M Hiremath, Registrar, Gulbarga University, as of now, is present before the court and states that he has assumed office only on 16.11.2009 He has placed before the court a file containing one loose sheet of the proceedings of the Board of Appointments and six worksheets said to be records pertaining to proceedings conducted by the Board of Appointment during the interview, which recommended to the Syndicate of the University to appoint the 3 respondent to the post of Lecturer in M.C.A course.
A perusal of the record leaves us more doubting about the correctness or propriety, or even constitutional fulfillment of making a proper selection of a suitable person to the notified post without discriminating from person to person and in extending equal opportunity to all eligible/qualified person to participate in the selection process.
However, due to paucity of time, further hearing of the case and dictation of this order is adjourned to 24.11.2009, as requested by Sri R.V Nadagouda, learned counsel who has appeared for the University and the Board of Appointment today on the ground that he has filed power for respondent no. 1, though on the earlier occasion, some other counsel had appeared
Be that as it may, list this matter for further hearing/concluding the judgment on 24.11.2009
Registry to show the name of Sri R.V Nadagouda also as advocate for respondents 1 and 2, in terms of power that had been filed by him and which has now taken shelter in ‘B’ file of the court records, for the reasons mentioned therein.”
19. The matter was taken up today and we have heard further Sri R.V Nadagouda, learned counsel appearing for the University and the Board of Appointment and we have also been taken through the records, pleadings from the writ petition, and our attention is specifically drawn to Section 53 of the Karnataka Universities Act, 2000 which reads as under:
“Appointment of Teachers and other Employees of the University
53. Appointment of Teachers and Librarians— (1) There shall be a Board of Appointment for selection of persons for appointment as teachers and librarians in the University.
(2) Every such Board for selection,—
(a) to the post of Professors, Readers and Assistant Professors and Librarian shall consist of.—
(i) the V ice-Chancellor-Ex Officio Chairman;
(ii) the Chairman of the Departmental Council concerned, if he is a Professor and if he is not a Professor, a Professor from the same Department, and if there is no Professor, a Professor in the concerned Department from any other University in the State nominated by the Chancellor, on the recommendation of the State Government:
Provided that if no such Professor is available in any of the Universities in the State, such Professor in the concerned Department from a Central Institute within the State or from a University in any other State shall be nominated.
(iii) Four experts to be nominated by the Chancellor on the recommendation of the State Government from among the persons serving in any University of the State or any other institutions recognised by the State belonging to Scheduled Castes or Scheduled Tribes and another to other Backward Classes:
Provided that if such persons are not available in any of the Universities in the State, such persons serving in any other University in India shall be nominated,
(b) to the post of Lecturers shall consist of.—
(i) - Vice-Chancellor-Ex Officio Chairman;
(ii) Three experts to be nominated by the State Government of whom one shall be a person belonging to the Scheduled Castes or Scheduled Tribes and another to Other Backward Classes from out of the panel of the University Grants Commission;
(iii) The Chairman of the Departmental Council concerned, if he is a Professor and if he is not a Professor, a Professor in the same Department and in case there is no Professor in the Department, a Professor in any other University in the State in the same Department to be nominated by the State Government and where no such Professor is available in any University in the State, such Professor in the concerned Department from a Central Institute within the State or from a University in any other State to be nominated by the State Government; (iv) One Professor from any other University in the State to be nominated by the Chancellor on the recommendation of the State Government.
(3) The Registrar shall be the Member Secretary of the Board.
(4) Every post of Professor, Librarian, Reader, Assistant Professor or Lecturer to be filled by selection shall be widely advertised together with the minimum and other qualifications, experience, the scale of pay, the number of posts, the last date for receipt of applications and classification of vacancies among Scheduled Castes, Scheduled Tribes and other Backward Classes: Provided that such of the teachers who are already in the services of the University who possess minimum qualification and fulfill other requirements specified in the advertisement shall also be called for interview and their cases shall be considered on par with the other applicants.
(5) The quorum for a meeting of the Board shall be four of whom in the case of selections to the post of Professors. Assistant Professor, Librarian and Readers, atleast two shall be experts and in the case of selection to the other posts, atleast one shall be an expert.
(6) The Board shall interview and adjudge the merit of each candidate by awarding the marks in accordance with the qualifications advertised, possesssed and the performance in the interview. The manner of interview shall be as prescribed by the statute.
(7) The Board shall prepare a list of persons selected and arranged in the order of merit the merit being determined on the basis of percentage of marks obtained in the qualifying examinations, weightage awarded for the higher qualification and the marks secured in the interview. The select list shall be forwarded to the Syndicate which shall consider and approve the same. Thereafter the Syndicate shall make appointments by operating the select list from among the candidates selected and arranged in the order of merit:
Provided that in case of difference of opinion between the Syndicate and the Board of Appointment and, where it is of the opinion that the list does not satisfy the provisions of the Act or the Statutes or the guidelines issued from time to time by the University Grants Commission or the All India Council for Technical Education or National Council for Teacher Education or similar statutory authorities, it shall refer the matter back to the Board for fresh interview and selection:
Provided further that the State Government may suo motu take cognisance of the difference between the Board and the Syndicate and shall decide, the matter which shall be final.
(8) In preparing the list under sub-section (7), the Board of Appointment shall follow the orders issued by the State Government from time to time in the matter of reservation of appointments and posts, for the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes.
(9) Whenever any new subject is introduced in the University or any new Department is established, the appointment of Professors, Readers, Assistant Professors and Lectures in such a subject or Department, as the case may be, shall be made under the provisions of this section.
(10) Notwithstanding anything contained in the preceding sub-sections, the Syndicate shall be competent to invite on the recommendation of the Vice-Chancellor a person of high academic distinction and professional attainments to accept the post of visiting Professor in the university on such terms and conditions as may be mutually agreed upon, which shall not be more than ten such visiting Professors at any given time.”
and submits that in terms of these statutory provisions, a Board of appointment had been constituted and the proceedings of the Board of Appointment is also placed before the Court and in the wake of Board of Appointment having comparatively evaluated the merits of five applicants amongst seven, with two applicants remaining absent and in terms of their evaluation, the Board of Appointment having indicated that the 3 respondent had obtained the better marks than that of the appellant and the Board having recommended to the University for appointment of the 3 respondent, selected for the post of Lecturer, the University has acted as per the recommendation of the Board and therefore, in terms of the Judgment of the Supreme Court in B.C Mylarappa @ Chikkamylarappa v. S.R Venkatasubbajah (2008-JT 11-73), and similar earlier cases, courts cannot interfere with the recommendation made by the Board of Appointment and following the judgment of the Supreme Court in Mylarappa's case and applying the same, this appeal has to necessarily be dismissed as has been done by the learned single Judge and would therefore urge for the dismissal of the appeal.
20. Sri R.V Nadagouda, learned counsel would also submit that the University has acted with utmost bonafides and in fact there is not even a whisper by the writ petitioner in the writ petition about any mala fides on the part of the University, and therefore, urges this Court should necessarily accept the submissions made on behalf of the University and this Court cannot interfere with the appointment made by the University based on the recommendations of the Board of Appointment, therefore, the Writ appeal should be dismissed.
21. Notwithstanding the fact that we had covered the judgment to some extent, we have further given our anxious consideration to the submissions made at the bar and in the light of the record placed before us.
22. While there cannot be any dispute and at any rate it is not proper for this Court to doubt either the correctness or the applicability of the judgment of the Supreme Court if on the facts, the ratio is attracted to a given case before the High Court and disposing of the matter before the High Court in terms of the law declared by the Supreme Court on the question is the mandate of the Constitution, and the High Court has to merely apply the law declared in the judgment of the Supreme Court to the facts of the case, we find the facts of the present case reveal a different story, warranting 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 given opinion one way or the other, this Court will not act as an appellate authority to interfere with the view taken by the expert body.
24. But unfortunately for the University, such is not the situation in the present case. The judgments relied upon by the learned counsel for the University are not at all attracted to the present situation as we have found that the appointment of the 3 respondent to the Post of Lecturer in the course of MCA, is an appointment suffering from not only legal mala fides but also with glaring infirmities and a possible ‘suppressio veri’ on the part of the University.
25. We say so for the reason that the University which had notified the post and invited applications for the post of Lecturers in MCA has gone about shopping for a man 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 very much available.
26. We are unable to understand the rationale of the University trying to evaluate interse merit of the, applicants from different subjects i.e under any one of the subjects imparted as part of education in MCA Course and as recommended by the All India Council for Technical Education, New Delhi (‘AICTE’ for short), a copy of such recommendation in terms of faculty requirement is produced as Appendix-E to Annexure-R1 by the 3 respondent - selected candidate and which is enclosed to the statement of objections filed on behalf of the 3 respondent.
27. The relevant portion for the purpose of selecting a lecturer would read as under:
APPENDIX E
FACULTY REQUIREMENT
Many MCA programmes in the country do not have adequate Faculty support. It is needless to emphasis that without adequate faculty no curriculum can be effectively taught. We give now our recommendations of staff.
1. Faculty
For a typical intake of 30 students per year in MCA, the minimum faculty requirement is
Professor 1 Readers 2 Lecturers 4
The qualifications are given below:
Sub cadre Qualifications for MCA courses Lecturer M.E/M. Tech in Computer Sciences Engg/Tech in case the candidate does not have a Master Degree BE/B. Tech in computer Sc and Engg/Tech with 60% aggregate. Or MCA with a minimum of 60% marks aggregate Or Master's degree with a minimum of 60% marks in appropriate branch in the teaching posts in humanities and sciences.
Xxxxxxx
1. Support Staff
As laboratory is an important part of the MCA curriculum, adequate staff in support instruction maintain the hardware and software in the laboratory are needed. We suggest the following:
Tester-in-charge 1 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 System Analyst/Programme 4 (in lecturer grade)
2. Advisory Board
To enable industry - institute interaction and advisory Board be constituted with the Principal/director and an eminent IT professional co.chairs, a member each from the faculty. IT industry alumini, Governing Body and head of Department as Convener. This Body will advise on all matters relating to project, placement and faculty/industry interchange. The tenure of the Board is to be two years.
3. Faculty Development
A continuing education programme he sponsored by AICTE exclusively for MCA teachers in the institutions to ensure better preparation in the fast changing IT filed.
27. A perusal of this faculty requirement criteria stipulated by AICTE would indicate that a person having PC qualification in ME/M. Tech in Computer Sciences; Engg/Tech is a person having the qualification to teach as a lecturer in MCA Course. In case the candidate does not have a Master Degree, B.E/B. Tech in Computer Science and Engg/Tech with 60% aggregate or MCA with a minimum of 60% marks aggregate or Master's degree with a minimum of 60% marks in appropriate branch in the teaching posts in humanities and sciences, would qualify for teaching in MCA courses. In fact, this definitely can constitute a relevant subject as notified by the University in its notification at Annexure-A. But what baffles us is as to how the Board of Appointment can make a comparative evaluation of the merits of persons originating from different subjects or discipline and make a farce of selection on comparative merit and in what manner they can integrate the ability of such persons coming from different discipline for the purpose of selection and by evaluating their suitability on a common scale of 100 marks and recommend persons from any one of the disciplines who has scored the highest marks as awarded by them on such comparative evaluation.
28. This is nothing short of playing trickery and fraud on persons applying to the post. The University had perhaps deliberately or with a design intended to achieve this result of selecting a person with post graduate qualification in Mathematics, though it had called for applications to fill up the post of Lecturer in MCA Course. That is why the action of the University falls short of the constitutional mandate of the State being in conformity with Articles 14 and 16 (i) of the Constitution of India, affording equal opportunity to all eligible candidates. In fact the method of selection made by adopting this procedure, is so flawed that it can never pass the test before a Court, more sc while in the exercise of jurisdiction of judicial review of administrative action. We say so for the reason that the post notified for being filled up by the University in MCA course should be one with reference to the vacancy and the vacancy can only be in a particular subject of the department and cannot be generally with reference to the course.
29. Even assuming that it is with reference to the MCA course itself, as we have noticed, for imparting teaching to a class with a strength of 30 students in a year, one professor, two readers and Four lecturers are required. The University should know in advance as to what should be the composition of lecturers and which all subjects they should teach and should fill up the post as and when they fall vacant. The University while inviting applications should definitely know as to which post they are filling, whether it is in the subject of Mathematics or in the subject of computer application or in any other subject of humanity and science which are all taught in MCA course. The University should specifically indicate in the notification itself, that it is inviting applications to fill up the post of lecturer in the specific subject in MCA course imparted at the University so that all eligible qualified persons holding PG qualification in the particular subject are given equal opportunity to apply for the post and to teach.
30. On the other hand, what the University has done as of now is nothing short of suppressio veri. After having invited the applications to fill up the post of Lecturer in MCA, has selected a candidate possessing PG qualification in Mathematics by bringing the theory of ‘relevant subject’ and contending before Court that Mathematics is also a relevant subject and therefore, appointment is justified and more so when the Board of appointment has recommended.
31. This is a hollow argument only deserving to be rejected for the reason that while Mathematics, may be a relevant subject in MCA course but the unfair action, rather trickery, played by the University indicates that by notifying to fill up the post of lecturer in MCA Course, the University intended to fill up the post by appointing a person with a post graduate degree in Mathematics by using the ‘relevant subject’ criteria as a camouflage to hide its real intention of filling up the post with a person having PG qualification in Mathematics. This is being done at the cost of a person having specific PG qualification in MCA course itself.
32. The other argument put forth by the University as urged by its counsel that MCA department is dominated by persons having PG qualification in Mathematics and Mathematics and therefore, selection of the 3 respondent as a person having the necessary qualification in the relevant subject only fortifies our view that the University from the beginning intended to appoint only a person having a PG qualification in Mathematics and never intended to appoint a person having PG qualification in MCA itself. There is nothing wrong in University doing this, if it had made it known in the notification inviting applications for filling up the post of lecturer in any particular subject taught in MCA Course. The University did not do so, but on the other hand as noticed earlier; notification only said, it is the post of lecturer in MCA Course.
33. It cannot be said that the University was not aware of notifying the post in any department with the specific subject being mentioned as is obvious from the notification itself if one looks at the notification - Annexure-A with reference to the posts of Lecturer in Chemistry, MBA, Mathematics and Botany the University had very clearly indicated for the post of lecturer in Mathematics as Maths (Computer Science) and in the case of Lecturer in Chemistry it indicated Chemistry, (Industrial Chemistry - 1 post) and (Chemical Engineering - one post) with reference to MBA it indicated it as MBA (Functional Course) and with reference to Lecturer in Botany it indicated it as Botany (Cytogenetic)
34. If such norms had been applied to MCA also and if the University really intended to select a person having PG qualification in Mathematics either with Computer Science or Computer Applications or any other speciality nothing would have been easier and befitting than to precisely indicate this requirement in the very notification. But not doing so, and only indicating the post of Lecturer in MCA is nothing short of misleading/discouraging the aspirant/qualified persons having post graduate qualification in Mathematics.
35. Perhaps the University only wanted to appoint the 3 respondent and wanted to eliminate other competitors; more eligible or more qualified persons in Mathematics subject and therefore, deliberately camouflaged the notification so that it never gives an hint that the post of lecturer that is being filled up by the University is in the subject of Mathematics.
36. Universities are places of imparting higher Education, spreading knowledge and places of excellence university prepares qualified, equipped and polished citizens of tomorrow who can build and take care of this country in all walks of life. An institution of such grandeur and hallowed places are models for the society and should remain so and not to indulge in pettiness, arbitrariness or the whimsical manner of functioning. Persons manning the Universities should conduct in a manner which elicits appreciation, begets compliments and the Society should be beholden for their guidance and services. Unfortunately, we do not find any of such qualities in the present situation but only an act of utmost unfairness, bordering on a fraudulent act and one of trickery and persons with PG qualification aspiring for an opportunity in the university who are ready to offer their skill and impart education to the aspiring students are taken for a ride, misled by the faulty advertisement at Annexure-A as issued by the University. We do not expect the University to conduct itself in a manner as is done in the present situation.
37. Though Mr. Nadagouda, learned counsel would the University has been adopting the same norm and method of selection all along, it only calls for a deprecation and it is high time for the University to change its colour and methods of selection and atleast henceforth, the University may reform itself, so that the constitutional mandate of equal opportunity to the qualified aspirants in terms of Articles 14 and 16 of the Constitution of India is obeyed in letter and spirit and not flouted by the University.
38. The so called expert body of the Board of Appointment, in our opinion, is nothing short of a farce of an expert body as it baffles us as to in what manner a Board like this can make a recommendation for the most suitable or qualified candidate for the post when the Board does not even know as to in which particular subject they are required to make a selection. A comparative evaluation of applicants from different disciplines is no evaluation nor can it be a proper evaluation on a comparative basis. Even the method adopted by the Board gets flawed because of the trickery played by the University while notifying the post and directing the Board to make a selection even without giving 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 sheets in terms of the evaluation made by the Board itself.
39. Though it is unusual for the court to pass comment on the method and manner of functioning of a Board of appointment, an expert body, we find the manner in which the Board, has discharged its duties in the present case desires much and definitely does not satisfy our conscience to accept the recommendations as one that the University should be commended to follow. We cannot help observing that no one is above the law, rule of law applies to everyone including the Board of Appointment. No expert body is immune from the rigors of Articles 14 and 16 of the Constitution of India and illegalities, arbitrariness and unfair action cannot be passed off as one clothed with the immunity of the opinion of an expert body, even when it is violative 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 happen in the name of courts not sitting in appeal over the opinion expressed by the expert body. This is not a case of an expert body rendering a bona fide opinion on the subject matter within its expertise, but it is a clear case of playing into the hands of the University who have acted in a manner of ‘suppressio veri’ and ‘suggestio falsi’, which act on the part of the University has vitiated the entire selection process.
40. A perusal of the record of the proceedings that has taken place before the Board of Appointment brought by the Registrar of the University to place before the court comprising 7 loose sheets, first of which is indicative of the proceedings of the meeting of the Board of Appointment containing specific recommendations as under:
Specific recommendations:
The Board interviewed five candidates who appeared for interview. Their academic attainment was assessed Out of five who appeared for interview, one belonged to category IIA and the remaining four to G.M category.
Out of these five candidates, the Board recommends the candidature of Sri Ganapat Singh Gangaram Singh Rajput for selection to the post of lecturer in MCA on the basis of his academic qualifications and performance in interview
The Board recommends fixation of his basic pay at the minimum of UGC Scale.
and xerox copies of i) composition of the Board and their recommendations as per their proceedings dated 2.9.1998 and ii) score cards indicating the marks awarded by each member of the Board of Appointment to each of the candidates interviewed by them, shows the manner of functioning of the members of the Board itself. We say so for the reason that at least in respect of the selected candidate-the 3 respondent and the appellant, three of the members have made corrections/over-writings which reveals by itself that there is an attempt on the part of these members to raise the total marks obtained by the third respondent during the interview, whereas there appears to be a conscious effort to reduce the total marks obtained by the appellant in the interview, as there are clear over writings in the original score card. It is not known whether the corrections are by the very members constituting the Board of Appointment or later, by the University as no explanation is forthcoming with regard to such over-writings.
42. In our opinion, the entire exercise clearly betrays an obvious case of legal mala fides and a deliberate attempt on the part of the University to favour the 3 respondent at the cost of the appellant! For a good measure, we have made xerox copies of the score cards also as part of this judgment.
PROCEEDINGS OF THE MEETING OF THE BOARD OF APPOINTMENT FOR THE SELECTION OF CANDIDATES TO THE POST OF LECTURES IN COMPUTER SCIENCE, GULBARGA UNIVERSITY, GULBARGA, HELD ON 2.9.1998 AT 11.00 A.M UNDER DIRECT RECRUTIMENT.
MEMBERS PRESENT: 1. Prof. M. Muniyamm, Vice-Chancellor, Gulbarga University. Chairperson 2. Prof. Sahasrabuddhi University of Pune. Member 3. Prof. Vasanti Bhat Naik, Bombay University. „ 4. Chairman, Dept. of Studies in Mathematics, Gulbarga University. „ 5, Prof. C.S Bagewadi Kuvempu University. „ 6. Registrar, Gulbarga University Secretary
The following candidates appeared before the Board of Appointment for assessment.
AS PER LIST ENCLOSED
qualifications and research work, experience etc., and also the performance of the candidates at the interview, recommends:
Specific Recommendations:
43. Be that as it may, the very notification issued by the University is one flawed and it is a notification failing the requirements of Article 14 and 16 of the Constitution of India and a selection made, based on such a notification, denying equal opportunity to all those eligible persons in the subject of Mathematics and excluding the person who has the specific qualification in the very subject i.e in MCA, is again a most irrational and arbitrary action and therefore, the selection of the 3 respondent and his appointment to the post of Lecturer in MCA has to be necessarily quashed.
44. Rule made absolute. Annexure-E Resolution at Item No. 53 dated 17.4.1999 passed by the Syndicate of 1 respondent University relating to the appointment of the 3 respondent to the post of Lecturer in M.C.A, is quashed by issue of a Writ of certiorari.
45. 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:
“WHEREFORE, it is prayed that this Hon'ble court be pleased to issue a writ of certiorari or such other appropriate writ, directions or order to:
a) Quash ANNEXURE - E Resolution No. Ite No. 53 dated 17.4.1999 passed by the Syndicate of I respondent University as illegal in so far it relates to the post of lecturer in MCA;
b) Issue a writ of mandamus directing the respondents to consider the name of the petitioner and appoint for the post of lecturer in MCA;
c) Pass such other order/s as this Hon'ble Court may deem fit to grant in the circumstances of the case, in the interest of Justice and equity.
Appellant was the only person having PG qualification in MCA passed in I Class with distinction. There was no other person with this qualification and the notification being issued precisely for the post of lecturer in MCA Course and not having specifically indicated that it is in respect of any other subject in MCA Course, it can only be understood as one in respect of the post of lecturer in MCA alone and therefore, the appellant being an eligible candidate automatically gets selected. The University with or without going through the Board of Appointment was required to appoint the appellant to the post of Lecturer, as he was the only eligible candidate left in the field. The University has failed in its duties in not doing so, but has gone about putting forth all sorts of defences and counters to justify the illegal appointment of the 3 respondent for the post of lecturer in MCA Course.
46. This is a clear case of denial of fair opportunity to the appellant and perhaps, the hopes and aspirations of a young person qualified in MCA, was shattered and a person who would have been lecturer for the past 11 years is denied that opportunity only because of the most injudicious and illegal action on the part of the University.
47. 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 lecturer in M.C.A is the post for the purpose of appointing a person who is required to, teach Mathematics subject in the course, and therefore, would invite applications for such purpose. But such an argument is pre-empted by the trickery played by the University and withholding this vital piece of information in its advertisement and creating an impression to all aspiring applicants that the post is only in respect of Lecturer in M.C.A Course.
48. This aspect is amply demonstrated as the criterion of ‘relevant subject’ for eligible qualification is indicated in general to the posts of lecturers in common, in different disciplines, and therefore would only give an impression to any normal person that ‘relevant subject’ is only M.C.A, and unless a person has a fertile imagination and positive advance input, it cannot be understood that the subject Mathematics is a ‘relevant V subject’ for the purpose of lecturer in M.C.A Course.
49. Though Sri P. vilas Kumar, appearing for the appellant, for the day would very magnanimously seek to submit that the appellant is not pressing for any backwages, we are least impressed by the submission as the appellant is not even entitled for any wages as he was not appointed and has not worked and therefore, the question of giving up backwages does not arise. However, we are satisfied that the appellant who should have been appointed in the very year of notification and selection which was in the year 1998 has been definitely treated in a most unfair and shabby manner by the University.
50. We are not only quashing the appointment of the 3 respondent but also issuing a writ of mandamus to the University to appoint the appellant to the post of Lecturer in MCA and allow this appeal awarding exemplary cost of Rs. 50.000/- in favour of the appellant payable by the University which is the least this Court can do for the reparation of the losses and agony the appellant has under gone all through these years, not only for being kept out of the job but also towards a part of the cost of litigation and the wear and tear due to litigation.
51. The University is directed to give effect to this order by appointing the appellant for the post of lecturer within two weeks from the date of receipt of this order.
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