IN THE HIGH COURT OF KARNATAKA CERCUIT BENCH AT DHARWAD DATED THIS THE 27"' DAY or JANUARY 2010; [ BEFORE THE HOl\l'BLE MR. JUSTICE KL'. A AND THE HONELE MR. JUSTICl£1v:A'BAVlND. w.A. No. 83;/20os(sel;REls~)ep A Between: I Dr. Anant L. Zandekar, A S/0 Lalappa D.Zandel§ar,f's't' , Aged about 40 years, , Resident of F~l3p,_Vl\lea;r"(}:3_eVst HQ'use, * . Pavate nagar, :Karnatal§a Urrh/'ersity'CampV1ls, Dharwad-3, District Dhaiwad; -. ' ' * 2 " p ' " - Appellant (by Sri S.P. Kulkarnig Advocate"fQr't'Ramachandra A. Mali, Advocate) ands. 1. The" Stateélofiiiarnataka represented by its llflecéfetary t'o.V'GOfV~e*fnrnent, Department of Ea"u_<:'atior_1(Cijllegiate), M.S. Building, _ Bangalore-56'0 001. A '4' files -lfiarlnataka University, _ '' Pavate Nagar, Dharwad--580 003, ' Dlstrlct Dharwad, represented by its Registrar 3. Dr. Lokesha s/o Kalyanaiah, Major, Reader in ?.G. Department of Ancient Indian History & Epigraphy, Karnataka University, Pavate Nagar, Dharwad-580 003, District Dharwad. 0 4. The Board of Appointment for the Post of Reader, Ancient Indian Historyf . Karnataka University, Pavate Nagar, Dharwad-580 003, Dist. Dharwad, Represented by its Chairman. 0 ' . ._ -V "'--. _ 0 e -- Respondents
(by SriC.S. Pati1,A.G.A for RI,’
By Sri I.G. Gachchinamath, Advocate ,~
Respondent No. 3 and 4 — served) ii 0
This Wm App_eal_:l,:is-.filei=.d” 4;¢r High Court of
Karnataka Act, 1961 lprayiing to” se’t:. aside the order dated 31.03.2008
passed in W.P. No.5’44£_38/20008., 0
This appeai iconiiinig-~.i,o1i.i:lcr:preliminary hearing on this day
Aravind Kumar} J,0’deliVe_rec¥.’pt–he”fopllo’wing judgment.
Ed ment
1;, iiTliieijudéiiient”passed in W.P. No. 4458/2008 dated 31.03.2008
. ,9 passed’ Judge is assailed in this intra court appeal
filed Vu/S 4iofth’e,V.Karnataka High Court Act.
.1 0′ Thetfactslin the nutshell are as follows:
Second respondent herein published a notification on
24.12.2005 calling for applications to the post of Reader in Ancient
History in Karnataka University amongst calling for
other posts. The last date for submission of ap_plieat’ion yvas
28.01.2006. On 27.01.2006 the appellant stibmiittied. aipplicat.ioon’to_llthell’
post of Reader in Ancient History and Epigraphy.’
came to be issued by the University datedil5.,_Vl2.2O0–6_to the earlier
notification and readvertised the’Tpostsf-,’a.slilifliéiéklog posts. it is
contended by the petitione.r thatllhe’ call letter from
University for interviewdanii sin_¢_¢’ he ‘d_id._’no_t receive the same he
approached this’ Comttl seeking for a Writ of
Mandamus to consider-thle-appliication of the appellant to the post of
Rf3’3d€1f ifiii Indliart———}~~iistory under Scheduled Case Rural
category’; l’:et.ition came to be disposed of by this Court by
lmiiorder dated30V_.ill2l00V7 whereunder it was held that the concerned
2 ” ‘av;iti1ori’ties are ’empowered to conclude the proceedings strictly as per
t.ten_ns~ and conditions stipulated in the notification dated
(Annexure-A) and in accordance with the relevant
provisions of the statute. By virtue of interim order granted on
10.05.2007 petitioner participated in the interview heldiwon
11.05.2007. The Board for Appointment constituted _
Karnataka University Act 2000 consideredmthe appiic-ationldof-ii ‘=
applicant and also others including third respondent’ic»to”~the
Reader in Post Graduate Department iiov’f’~.A’ncie’r1t VIrid_iVanVH:isst’er§,r ‘and * it
Epigraphy, Karnataka University, “and il5y=-order dated
26.12.2007 (Annexure-R) selectediithe 3’? the said post.
3. This selection came to belassai.led.isinf’WE. no. 4458/08 by the
appellant herein \iiIhere;1ndicirvitheiappointinient of third respondent to
the post in question it was contended that third
respondentydid not possess requisite notification and the Board of
Appointment considered the matter placed before it and in
‘J2pp_deferericei’iito’ produced by the appellant herein the
i’7Corr:rnitteeliiproceedied to select third respondent and accordingly
2 tioriquashing the said appointment and also a further prayer
to select the appellant in place of the third respondent.
4. The learned Single Judge by order dated 31.03.2008 in W.P.
No. 4458/2008 after perusal of the rnaterials placed before it carne to
the conclusion that third respondent (selected candidate)
more marks in the qualifying examination and had alsojlie vposrsessed
more experience in teaching and did not accept the-_. pleajliput forward,
by the Writ Petitionerl appellant and accordingly
Petition. It is this order which is now assailed in the presentvpappeal.
5. We have heard Sri Kulieami, jpcoliinsel appearing for the
appellant on behalf of Sri Ramachandral ll/Ia;l’i.,Vv.’r’i~VV<i;fvtI_t'37'cate and learned
Government; Advlolcaiae 'respvondent no. _1 and Sri Gurudev
Gachchinamath,learned V cou:is"e:l,rVll4appearing for respondent no. 2.
Though "r_§«e'spondent"' 3: and 4 are served have remained
unrepresented. up .' r,,,u __
V6. Stibmislsiotiis learned counsel appearing for the appellant
_ are.sLumna1'i.sed as follows: .
(i)
(ii)
(iii)
6
What has been prescribed under the notification Annexure-A is
Post Graduation in MA. in Ancient indian History and
Epigraphy and third respondent was possessing
Graduation Degree in Ancient lndian History _
only and thus did not fulfil the initial criteyria.
That the marks to be awarded as per’1«sub_’_lSectionfol)
Section (7) of Section 53 of»Unix/ersity._Act_has’:..;riot” been ” it
awarded by the Selection’ .Comnri’ttee_fanlde.thus tlie-selection of
third respondent is liable to be lseltfaside.__.__”-
The material pl~acegd:with__ regard ‘to:”th.evVp_ublication of articles
and research -»..bye.vl4appe*llant has not been taken into
consideration. Appointment and hence the order
‘~ of of 3’6 resp-endent is liable to be set aside.
In support submissions learned counsel appearing for the
l”‘appelVl’antgwouldl:’ rely upon the following decisions of the Hon’ble
“h::Suprernel “Court in the case of District Collector & Chairman,
.V_’lVilii:ofia_garam Social Welfare Residential School Society,
n
Vizitmagaram and another Vs. M. Tripura Sundari Devi reported in
(1990) 3 Supreme Court Cases 655 by drawing our attention to
paragraph no. 6 of the judgment. He also relies upon the
the Hon’ble Supreme Court in the case of Mohd.
Aligarh Muslim University & Ors. Reported! in W
8. Per contra, Sri Gurudev Gachchinarnath; lea»n’led,:4_couinsei
appearing for second respondent would that perusal of
the two applications would cleiaitliiri’ that ‘appellant herein had
secured Second Class in it/[_._A. on’ contraryiitheiselected candidate
had secured M.AtWand hence on comparative
merits of the “‘.:wo_ selected candidate, i.e., 3″‘
respondent stands on at bettier footing and hence merit alone being the
criteria, the contention of the learned petitioner’s counsel is sought to
be repel~leid.,’He’wo_ul’d’also submit that contention raised now in the
lapppeal withii1’egiardi to the articles and research work said to have been
‘1.p’uhilshed’ihaving not been taken into consideration, is contrary to the
it draws our attention to the very application filed by the
1. Whether this Court in exercise of its jurisdiction under Article
226 can substitute the view taken to that of by the Selection
Board and if so what orders are to be passed?
2. Even if the grievances of the appellant is scrutirii.aedjV’b:j/
Court whether the appellant can be torbe tnore -rneriVtorior1sl”«
comparatively to third respondentwho ihahslheen selected’?
10. Point No. 1.: in supportkdf cca_I1te’ritipon’*with regard to the
assessment of relevant merits, le’arhed’pcounsel Sri.K’tillkarni had drawn
our attention the jAudgntevn’tsvV_of thewHon’ble Supreme Court in
the case of Districts Cotlleeitporl’&l:Clrairman, Vizianagaram Social
Welfare Residential Selioal Staciety, Vizianagaram and another Vs.
‘Devi reported in (1990) 3 Supreme Court Cases
Vs. Aligarh Muslim University & Ors.
_Ti”..}§eported 31R SC W 3755. We find that in so far as the first
‘._’_’case«inarr1el’y. Tripura Sundari Devi’s case is concerned the Selection
‘ -lig’C0i’rimittee while considering the relevent merits found that the
10
respondent having a Third Class P.G. Decree was selected___ and
appointed inadvertently without scrutinizing the copies of certlificaitiespp
and during the course of scrutiny of original certificates-tit.”wias.::foi.i:id_”‘_’ it
by the Selection Authority that the responderit”therein–.was of
qualification and as such candidate therein iwasrlot “to ‘;-ioinll’
service and this action which was challlengedl”the iliaggrieved
selected candidate though 1Higih”(f¢,urt, was
not accepted by the Hon’.ble Apex order of the
authorities came present case is
concerned it herein that the selected
candidate didl*n’ot– with regard to the Post
Graduate. The appellant is with regard to non
po:s’sessing’:g_:tiif qualiiicati-on’with regard to Epigraphy. What has
been’preiscribedtiié”the–..notification is with regard to the PG. in
jilifiuicient lridian and Epigraphy.
is seenirom the application filed by the selected candidate,
only possessed Diploma in Epigraphy but was also
ll
Lecturer in the same College with 8 years experience in the subject of
Epigraphy also. Apart from that the selected candidate had possessed
First Class in MA. by securing 63.5% marks as against _
herein who had secured Second Class in lVI..A.,. _Henc_–e’th’e ii ”
Tripura Sundari Devi supra relied upon bylthe
not be applicable to the facts of the pre’s_er1t_pcaseI .
12. In so far as the second jzgdgment’, l1’£Jphd.iliSol:rall2 Khan ‘s
case is concerned, the Selection.’:Cornrnitt.e:e’~ .duri:§g the stage of
selection and during; *’theg1._rnid way sevlect:i’on..__Changed the essential
qualification ajcriteilfiawifrorrilliiswliat”waslaid” down in the advertisement
and it is on this particular ground_l:_Ho.n’ble Apex Court held that what
has been pj-jbliished in the Vadvvertisernent cannot be altered not only to
the__dietemjin:arit_ the non selected candidates but also to the
detern1’inant to ‘ca;n.dijdates who are similarly placed and the selection
_la._\2_\(asVhnot alceeptedl. In the instant case we do not find that such a
‘fisituationl Chas arisen. Both candidates namely the candidate selected,
‘ third respondent and the appellant who was also an applicant
W
12
admittedly possessed M.A. in Ancient History. On perusal of these
two qualifications, Selection Board found that the third respondent is
possessing higher marks namely 63.4% than that of the appellant’in
MA. and accordingly accepted the claim of the third .
selected him. Hence, we are of the opinion that Mohd..lSahra’o lKhan’s;_ K ”
case referred to supra is not applicable to theniipreisfleritilcase Vii
13. In the judgment of the Horfble the; case of
Dalpat Abasaheb Solunke ahd’-ralthei-.s Mahajan and
others reported in (1390) :’»Cases 305, has
circurnscribedvlthescopes of 3§1idicial:l.’reVieiyhyith regard to appointment
and selection. is held’bylltheiriordships as follows:
” 12. It will ;’l’r’i’14!.§’ appear that apart from the fact that the High Court
of the two appointees in one, though their
appoihtments ‘are_~v_noti’.;assailable on the same grounds, the court has
lfalsogfoundl’ it ‘rurcelssaty to sit in appeal over the decision of the
‘Cforninittee and to embark upon deciding the relative
llfmerits of the candidates. It is needless to emphasise that it is not the
52%”
function of the court to hear appeals over the decisions of the
Selection Committees and to scrutinize the relative merits of the
candidates. Whether a candidate is fit for a particular post or–not
has to be decided by the duly constituted Selection
has the expertise on the subject. This Court has no
T he decision of the Selection Committee can be.interfei–ed’with’-onlyC f
on limited grounds, such as illegality’o::patent- material iliryregularitjk
in the constitution of the Committee or_u’its_procedure:vitiating the
selection, or proved mala fidesiiaffectingiftheselection etc. It is not
disputed that in the present case constituted the
Committee mane the relevant statutes. The
Committee consisted of experts it selected the candidates after
going, all, the ‘re:’e-v-ant material before it. In sitting in
appealpvg);-“‘thezseleetion so made and in setting it aside on the
{ground of.4__tlze_.so_c.–alled comparative merits of the candidates as
S S’ by thcifourt, the High Court went wrong and exceeded its
V” « _ jurisdiction”
14
It is not the function of this Court in exercise of its power under
Article 226 of Constitution to hear the grievances of the aggrieved
party as though appreciating the same in an appeal from
of the Selection Committee to scrutinize the ineritsnf ‘candidate’i C
which exercise has been done by the Universii.-typ ivnithie._in~stant».i_caae.f
Hence question no. 1 formulated hereinaboive has toii”n§:v.answ%ered.Viit»
against the appellant.
14. Point No. 2: Though i”v.iie-.haive-.ipj.anisweredgquestion no. 1
formulated hereinabove:holdinigiithatiit not ‘~bc=;iiiiv*viiithin the scope of
judicial review to’ the~._rnerits and demerits of the rival
candidates, onithe content’iwonsii’1=aise”d by the appellant’s counsel to
contend that”th.ird respondent. did not possess requisite qualification
weare jperforcedp to reconsider the said claim and on such scrutiny we
find thati.sa.ridicon.t_ention also requires to be rejected for the following
reasons.
is seen from the applications produced by the appellant herein
third respondent that appellant herein has secured Second Class in
go
15
PG. Degree, i.e., M.A. in Ancient Indian History, Eph (Epigraphy) in
the year 1995 from Karnataka University, Dharwad. On comparison
it is observed from the application of the third respondent~«.wih*iehc-is
Annexure-L at column no. 8 he has secured First_Clas*s.VD~egree in ._
MA. in Ancient History and Archeology frorinflthepii
Mysore from the Departrnent of Histoiygpandii ArcheoloV:gyV..;i’n_iyear
June 1996. It is also noticed from theyp.eifu,s_a’l~~..of the column that
the third respondent has secured’ from the same
University, i.e., Mysoie by securing
First Class that third respondent had
published ceirtainpioriginal-At.:researcl2 pwork and said to have got it
published in the iNational’v._and._reputed journals as per enclosure-II to
tliesaid apidlicpationpi “””
l6.ii’ cor§ti*apthieelap13ellant in column no. 12 of his application had
ii’v.iii””‘contended,__that~ published two articles and two books and at
_ .. ;pfige:”‘1}Q.Vg4 in the column of enclosure the same does not find a place.
Board of Appointment on perusal of the enclosure to the
16
application and by considering relevant merits of both the candidates,
has come to the conciusion that third respondent is more meri.to-rious
than that of the appellant. This finding of fact cannot be.
even on reappreciation of the contentions raised in the.apll_peal;c.i.:” _ 9
17. in so far as the contention with regardpiito notadherii;ig..t’o’._VV
provisions of sub section (6) and (7) 53″ o.f.t_hc. ctjnivoiicity Act,
we are unable to accept the’*~cont;entio1*iillgfloif”the leairneid counsei
appearing for the appeiiant. Thougliiearned coiiriseE.iappearing for the
appellant in ordertoéirbuttressi,his has produced a
comparative i.statemen’t_–i self assessment basis) to contend
that marks assignedtby ‘the’tSe¥:_e’ctiVoiiiCommittee is not in consonance
with the prpvisti.ons ofs1§biiSection (o) and (7) of Section 53 of the Act,
.}i?1l§lt§~.toV beirejecvted __for the simple reason that under the category of
teaching’.expeirieneelfthe appellant has got himself assigned 10 marks
iconiparison; to the third respondent’s teaching experience by
5._i_:’as_signingi””‘8 marks. To substantiate this claim learned counsel
. ‘iiciilapiplearing for the appeilant has taken us to the service certificate said
17
to have been issued by S.J.M.V. Sangha’s Arts & Commerce College,
Hubli which is at Annexure K and K1. On perusal of thesetwo
certificates we find that appellant claims to have ser_\-jeti _
institution from 1999 to 2006 (by first certificate) nttti~nein’iiioti2 to ~
2007 (by second certificate). When he clia-irns_j_’to:_’ha’vei iinyefliéi
same institution we are unable to see’e.itiier rhyme or _reason ‘as.to’why * ‘
two certificates for the same period st:-£’ti1fi.é’~tO”*~be issued–..and without
going to the tnetits of the eiaint 1fr1ade..5i.in’de_ri ith’e..:s’ai_d certificate we
find that third respondent. had ‘i.ni”tifactv_’wf0rking in the Very
institution for the _’*cornparative statement
prepared by appellant ac:c’epted. In so far as the contention
with regard to the rpnhtieationnttithe journals the appeliant has failed
to’.,%,n:ye.:ntaterial”eitirer before the Board of Appointment, or
before the before this Court and hence this ground also
*.__i”‘d’ces not ‘iTi.€1’itv’CQtl:S1deFafi0n and accordingly it is rejected. Hence
C it 2 forrriulated hereinabove is answered against the appellant
eh_oidiing”that appellant does not possess more merit than the third
it . . _ K irespiondent. Accordingly the following order is passed.
18
Order
The appeai is hereby dismissed. N0 order as to C0s_t;*_§I”‘ ‘
~%d/~
EEEDGE
bvv