Dr. Shruti Ramesh Wankhede vs Vasantrao Naik Marathwada ...
2015 Latest Caselaw 411 Bom

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                                           1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                         
                           BENCH AT AURANGABAD




                                                 
                           WRIT PETITION NO.9420 OF 2013


            Dr. Shruti Ramesh Wankhede,
            Age 34 years, Occu. Household,




                                                
            R/o C/o Anand R. Chitte, Plot No.11,
            Pethenagar, Bhavsingpura,
            Aurangabad, District Aurangabad.            .. PETITIONER.




                                       
                             VERSUS
                             
            1. Vasantrao Naik Marathwada
            Agricultural University,
            Parbhani, through its
                            
            Registrar.

            2. Ku. Darshana Shrihari Bhujbal,
            age 28 years, Occu. Household,
            S.M.S. (Horticulture),
      


            Vasantrao Naik Marathwada
            Krishi Vidyapeeth,
   



            Krishi Vidyapeeth Kendra,
            Near Railway Station,
            Paithan Road, Aurangabad,
            District Aurangabad.                        ..RESPONDENTS.





                                           ...
            Mr.S.R. Barlinge, Advocate for the Petitioner.
            Mr.Manish N. Navandar, Advocate for R.No.1.
            Mr.Ajay S. Deshpande, Advocate for R.No.2.
                                         ...





                                      CORAM : S.S. SHINDE &
                                              A.M. BADAR, JJ.

Reserved on :21.09.2015.

Pronounced on : 08.10.2015.

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JUDGMENT [Per S.S.Shinde, J.]:

1. Rule, returnable forthwith. By consent of learned

Counsel for the parties, taken up for final hearing.

2. By way of this petition under Article 226 of the

Constitution, the petitioner prayed two fold reliefs. Firstly,

the petitioner ig has prayed for quashing and setting aside

the appointment order issued in favour of the respondent

No.2, appointing her to the post of Subject Matters

Specialist (Horticulture); and secondly, it is prayed that the

respondent No.1 be restrained from filling up the vacancy of

the post of Subject Matters Specialist meant for open

category as per the advertisement dated 31.3.2012 from

30% female reservation.

3. The background facts for filing the petition, in short,

are as under:

The respondent No.1 University issued an

advertisement dated 31st March, 2012. In response to the

said advertisement, for the post of Subject Matters

Specialist (Horticulture), the petitioner applied. The

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petitioner has completed M.Sc. (Agriculture) from Dr.

Punjabrao Deshmukh Krushi Vidyapeeth in 2003 in first

division. She also acquired Ph.D. In 2007, she has several

research papers to her credit and has participated in

several conferences.

4. The petitioner also claims that she has required

experience, in support of her claim for open woman

category, she submitted non creamy layer certificate dated

7.4.2004 issued by the competent authority. It is further

case of the petitioner that, respondent No.2 had also

applied for the same post. However, she did not submit

non creamy layer certificate and, therefore, in the first two

statements showing details about applications of the

candidates received in response to the advertisement, it

was clearly mentioned that she had not submitted the non

creamy layer certificate. According to the petitioner,

respondent No.1 showed undue favour to the respondent

No.2. In the second statement, for the first time, the

University added the word "female" against name of the

respondent No.2 though, in the first statement, it was not

there. Such word is not mentioned in case of other female

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candidates who have not submitted non creamy layer

certificate. The reason for this is that only those female

candidates are entitled to claim reservation in 30% quota

for females who possess the non creamy layer certificate.

As per the advertisement, the application form along-with

all the documents, was required to reach the University on

or before 30.04.2012. However, the respondent No.2 did

not possess the non creamy layer certificate on the date of

filling in the application by her. It is also alleged that, the

reason for showing undue favour to the respondent No.2

appears to be that, the respondent No.2 happens to be the

daughter of an employee of respondent No.1 University

namely, Shrihari Bhujbal, who is close relative of the

Honourable Vice Chancellor of respondent No.1 University.

It is further case of the petitioner that the Registrar by

letter dated 30th September, 2013 asked the respondent

No.2 to submit non creamy layer certificate immediately in

the prescribed format as per relevant Government

Resolution.

5. It is the case of the petitioner that, the petitioner

possesses five years experience as against it, respondent

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No.2 does not possess any experience. The petitioner has

eleven research articles to her credit. However, respondent

No.2 has not published any research article. There are 23

popular articles at the credit of petitioner, she had one time

T.V. Talk experience, she has MS-CIT certificate and her

research is accepted by Germany to publish in the form of a

book and petitioner is Ph.D. However, none of these

qualifications ig are possessed by the respondent No.2.

Therefore, the petitioner is better qualified candidate

compared to respondent No.2. There are also some

additional facts stated in the rejoinder to affidavit-in-reply

filed by the petitioner. It is stated that giving 50% marks

for the oral interviews is contrary to the law declared by the

Supreme Court and, therefore, the selection of respondent

No.2 for the post of Subject Matter of Specialists

(Horticulture) deserves to be quashed and the appointment

order issued in her favour deserves to be cancelled and the

same deserves to be issued in favour of the petitioner.

6. In pursuance to the notice issued to the respondents,

respondent No.2 has filed affidavit-in-reply and also

additional affidavit-in-reply denying the allegations in the

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petition. Respondent No.1 has also filed affidavit-in-reply

and additional affidavit-in-reply.

7. The learned Counsel for the petitioner submitted that,

on the date of filling in the application form in pursuance to

the aforesaid advertisement, respondent No.2 did not

possess the non creamy layer certificate. However, it was

mentioned in the application form that the said non creamy

layer certificate has been annexed by her with the

application. It is submitted that even the desired

qualification was not possessed by the respondent No.2 on

the date of filling in the application. It is further submitted

that, when the application as filled in, in the category of

female, remark was written as "No" and also non creamy

layer certificate was not enclosed with the application. The

petitioner possesses better qualification than the

respondent No.2 and also has experience to her credit and

therefore, the petitioner ought to have been appointed. In

support of the contention that the respondents should not

have earmarked 50% marks for the viva voce, the learned

Counsel for the petitioner pressed into service exposition of

the Supreme Court in case of Ajay Hasia etc. vs. Khalid

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Mujib Sehravardi and others1 and submitted that, at the

most 15% marks can be earmarked for viva voce test.

8. On the other hand, learned Counsel for respondent

No.1 invited our attention to the averments in the affidavit-

in-reply and also the additional affidavit-in-reply and

submitted that, in fact the respondent No.2 had already

submitted

non creamy layer certificate along with her

application form and therefore, it was necessary to take

entry in the Column No.5 as "Yes". However, the concerned

clerk had committed a mistake in not mentioning word

"yes". It is also submitted that the correction as suggested

by the Grievance Committee were made in the list against

the petitioner but, the correction regarding Open Female

instead of open OBC is made and in Column No.5 N.CL for

the 30% Female Reservation, it is mentioned as "No." It is

submitted that, it is merely because of the mistake

committed by the clerk, the remark "No" is shown against

the category Female and non creamy layer in respect of

respondent No.2. It is submitted that the respondent No.2

was found more better candidate in the oral examination as

1 AIR 1981 SC 487;

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compared to the petitioner and as such, respondent No.2

was selected by the Selection Committee. It is further

submitted that the marks scored by the petitioner were only

20.11 in oral interview. As compared to the petitioner, the

respondent No.2 scored 40.55 marks. In academic

performance, petitioner scored 30.84 marks and respondent

No.2 scored 12.50 marks. However, petitioner scored total

50.95 marks and respondent No.2 scored 53.05 marks.

Therefore, respondent No.2 was selected.

9. The learned Counsel appearing for the respondent

No.2 submitted that as a matter of fact, application form of

respondent No.2 was complete in all respect and still in the

first list appearing at page 25 onwards, in column No.3

while describing her category "Female" was remained to be

incorporated. Similarly, in column No.5 although she

submitted non creamy layer certificate along with her

application form, it has been recorded as "No". It is further

submitted that respondent No.2 possessed an equivalent

qualification i.e. MS-CIT. The respondent No.2 also passed

NET examination - one of the most desirable qualification.

Therefore, it is submitted that, the respondent No.2 has

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fully answered to the eligibility qualifications prescribed in

the advertisement and as such, she came to be selected for

appointment as Subject Matter Specialist (Horticulture).

The learned Counsel also invited our attention to the copy

of the application submitted along with the affidavit-in-reply

with the list of attached documents and submitted that it

would unmistakably reveal that the respondent No.2 did

submit her caste certificate along with validity certificate

and non creamy layer certificate for female reservation.

Since the result of NET examination was declared

immediately preceding the last date of submission of the

application form, the respondent No.2 scribed the same

manually by adding it at Sr.No.14 and necessary documents

in relation thereto were produced during the course of

interview.

10. It is further submitted that the last date of submission

of non creamy layer certificate was 30 th April, 2013. The

earlier certificate which was valid up to 31st March, 2013

was got renewed and submitted at a later stage on 14 th

June, 2013. It is submitted that, respondent No.2

submitted grievance application to respondent No.1 with a

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request to incorporate her status as "female" and to extend

her reservation for female. Respondent No.2 also attached

her renewed non creamy layer certificate to her application.

Upon considering the grievance application, the respondent

No.1 specifically recorded that, as per NCL certificate,

respondent No.2 is considered as Open - Female.

11.

The learned Counsel for the respondent No.2 also

invited our attention to the additional affidavit-in-reply filed

by respondent No.2 and submitted that on the date when

the respondent No.2 got the application typed for the post

of Subject Matter Specialist (Horticulture), the result of NET

examination was not declared. However, it came to be

declared on 30.4.2012 i.e. on the last date of submission of

application form. Therefore, she incorporated manually NET

qualification while submitting the application form. The

learned Counsel for the respondent No.2 invited our

attention to paragraph No.2 of the additional affidavit-in-

reply and submitted that the respondent No.2 did submit

non creamy layer certificate at Exh.R-2(B) which is

composite in nature and titled as Caste Certificate. It is a

matter of common knowledge that, non creamy layer

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certificate is always issued for a financial year from 1 st of

April till 31st of March of every year. Considering the last

date of submission of application form i.e. 30.04.2012, the

respondent No.2 could not get a renewed certificate

immediately, and therefore, she submitted the renewed

certificate upto 31.3.2014 soon after she got the same on

14th June, 2013.

12. It is further submitted that renewed non creamy

layer certificate was issued to respondent No.2 on 14 th June,

2013, which was subsequently submitted to the respondent

No.1. It is submitted that respondent No.2 was more

meritorious compared to the petitioner and, therefore, she

has been rightly selected. It is submitted that, contention

of the petitioner that 50% marks should not have been

earmarked for oral interview is devoid of any merits. In the

case of Ajay Hasia (supra), the Supreme Court has dealt

with different fact situation inasmuch as, there was written

examination and therefore, it was observed that, there

should not be more than 15% marks for the viva voce test.

However, in the present case, there was no written

examination and, therefore, 50% marks were assigned for

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oral examination.

13. We have heard learned Counsel for the petitioner,

learned Counsel for respondents 1 and 2. With their able

assistance, perused the pleadings in the petition, grounds

taken therein, annexures thereto, replies filed by

respondents 1 and 2 respectively, and also additional

affidavit-in-reply filed by respondents as also the rejoinder

filed by the petitioner. As per the advertisement, last date

for filling in the application for the post of Subject Matter

Specialist (Horticulture) was 30th April, 2012. On the date

of filling in the application, though it was mentioned in the

list of documents that, the respondent No.2 has filed the

non creamy layer certificate, as a matter of fact, as it is

evident from the additional affidavit-in-reply filed by

respondent No.2, the renewed certificate upto 31 st March,

2014 was submitted on 14th June, 2013 in the prescribed

form. Upon careful perusal of the clauses in the

advertisement, it appears that there is no power of

relaxation of any condition including submission of non

creamy layer certificate after the date of filing the

application is over. The petitioner has placed on record the

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letter written by the Registrar of respondent No.1 University

addressed to the respondent No.2 at Exh.E at page 118 of

the compilation of the writ petition; in which, it is stated

that, the name of respondent No.2 is being actively

considered for the appointment for the post of Subject

Matter Specialist (Horticulture) under Open category against

30% female reservation. Therefore, respondent No.2 was

directed to submit non creamy layer certificate immediately

in the prescribed form as per Government Resolution

[email protected]@elsvk&[email protected]&[email protected]&2] fnukad 25-5-2001&efgyk

o ckyfodkl foHkkx] ea=ky;] eqacbZ. There is no denial in the

affidavit-in-reply or the additional affidavit-in-reply filed by

respondent No.1 about writing said letter by the Registrar

to the respondent No.2. Therefore, the contents of the said

letter would make it abundantly clear that on the date of

filling in the application, respondent No.2 did not submit the

non creamy layer certificate in the prescribed form as per

the aforesaid Government Resolution. Apart from non

submission of non creamy layer certificate in prescribed

form on the date of filling in the application, it appears that

50% marks were assigned for oral interviews. Upon careful

perusal of the additional affidavit-in-reply filed on behalf of

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respondent No.1, it is abundantly clear that, in academic

performance the petitioner secured 30.84 marks and

respondent No.2 secured only 12.50 marks. However, it

appears that in oral interviews, petitioner was given 20.11

marks and respondent No.2 was given 40.55 marks. Upon

careful perusal of the advertisement, it appears that there

was no separation of marks for academic performance and

oral interviews. Therefore, at that stage, the petitioner had

no opportunity to take an exception to 50% marks assigned

for oral interviews. We find considerable force in the

argument of the learned Counsel for the petitioner that, it is

merely because of 50% marks earmarked for oral interview,

though the petitioner's academic performance is

extraordinary, the respondent No.2 was given more marks

in the oral interview so as to defeat the claim of the

petitioner. The Supreme Court, in case of Ajay Hasia

(supra), has observed that the oral interview test is

undoubtedly not a very satisfactory test for assessing and

evaluating the capacity and calibre of candidates, but in the

absence of any better test for measuring personal

characteristics and traits, the oral interview test must, at

the present stage, be regarded as not irrational or irrelevant

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though it is subjective and based on first impression, its

result is influenced by many uncertain factors and it is

capable of abuse. However, in the matter of admission to

college or even in the matter of public employment, the oral

interview test as presently held should not be relied upon as

an exclusive test, but it may be resorted to only as an

additional or supplementary test and, moreover, great care

must be taken to see that persons who are appointed to

conduct the oral interview test are men of high integrity,

calibre and qualification.

It is further held in para 19 of the said judgment that,

the allocation of as high a percentage as 33 1/3 of the total

marks for the oral interview should be regarded as infecting

the admission procedure with the vice of arbitrariness and

selection of candidates made on the basis of such admission

procedure cannot be sustained. Under the existing

circumstances, allocation of more than 15% of the total

marks for the oral interview would be arbitrary and

unreasonable and would be liable to be struck down as

constitutionally invalid.

14. If the facts of the present case are examined in the

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light of observations made by the Supreme Court in the

case of Ajay Hasia (supra) and looking to the academic

performance of the petitioner and allegations made in the

petition as against respondent No.2, we are of the view in

the first place that, the application of the respondent No.2

filled in on 30th April, 2012 was not complete in the sense

that respondent No.2 did not submit non creamy layer

certificate in the prescribed form on that date. Secondly, it

is difficult to accept the case of respondents that in the

application submitted by respondent No.2, by mistake, word

"No" was written as against the category 'Female and Non

Creamy Layer '; thirdly, the act of the respondent No.1 to

earmark 50% marks for the oral interview cannot be

countenanced. Upon considering the material placed on

record in its entirety, there is a room for doubt as alleged

by the petitioner that, respondent No.2 was favoured giving

go by to the good academic performance of the petitioner.

We do not wish to enter into the comparative account of the

academic excellence and experience gained by the

petitioner vis-a-vis respondent No.2. However, taking into

consideration the facts and circumstances appearing on

record, the appointment of the respondent No.2 deserves to

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be set aside.

However, we cannot accede to the prayer of the

petitioner to appoint her on the said post, keeping in view

the exposition of the Supreme Court in case of Hitendra

Singh s/o Bhupendra Singh and others Vs. Panjabrao

Deshmukh Krishi Vidyapeeth by Registrar and

others2.

15. In the ig result, selection / appointment of the

respondent No.2 to the post of Subject Matters Specialist

(Horticulture) made by respondent No.1 is set aside.

However, we direct the respondent No.1 to undertake fresh

selection process for the post of Subject Matters Specialist

(Horticulture), ensuring transparency and legality in it and

complete the same, as expeditiously as possible but, within

three months from today.

Writ petition is allowed, partly and stands disposed of.

Rule made absolute in the above terms. No order as to

costs.

                       [A.M. BADAR, J.]                    [S.S. SHINDE, J.]

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            2 (2014) 8 SCC 369;