Ramanagouda V. Patil S/O ... vs The State Of Karnataka
2021 Latest Caselaw 5448 Kant

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              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 4TH DAY OF DECEMBER 2021

                          BEFORE

    THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

           WRIT PETITION No.104236/2021 (S-RES)

BETWEEN

1. RAMANAGOUDA V. PATIL
   S/O VASANTMADHAV R. PATIL
   AGE 56 YEARS, OCC. PROFESSOR,
   DEPARTMENT OF HORTICULTURE,
   UNIVERSITY OF AGRICULTURE SCIENCES,
   DHARWAD, R/O: SIDDARTH COLONY,
   DHARWAD-580003.

2. THE ASSOCIATION OF TEACHERS WELFARE (R)
   SOCIETY NUMBER DWR-S37-2007-08,
   UNIVERSITY OF AGRICULTURE SCIENCES,
   DHARWAD-580005
   REPRESENTED BY ITS SECRETARY,
   SRI. MAHANTESH NAYAK
   S/O. RAMCHANDRA P. NAYAK
   AGE. 46 YEARS.                            ...PETITIONERS
(BY SRI. GANGADHAR J.M., ADVOCATE)

AND

1. THE STATE OF KARNATAKA
   REPRESENTED BY ITS
   PRINCIPAL SECRETARY
   DEPARTMENT OF AGRICULTURE,
   M.S. BUILDING, BENGALURU-560001

2. THE UNIVERSITY OF AGRICULTURAL
    SCIENCES, U.A.S. DHARWAD-580005
   REPRESENTED BY ITS REGISTRAR
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3. THE BOARD OF MANAGEMENT,
   THE UNIVERSITY OF AGRICULTURAL
    SCIENCES,
   U.A.S. DHARWAD-580005
   REPRESENTED BY ITS
   MEMBER SECRETARY.
                                              ...RESPONDENTS
(BY SRI. VINAYAK S.KULKARNI, AGA FOR R1
    SRI. RAMACHANDRA A.MALI, ADVOCATE FOR R2 & R3)


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE APPROPRIATE
WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI
QUASHING THE NOTIFICATION DATED 15.07.2019 BEARING
NO.R/RECTT/BOMB-45,48/2019 ISSUED BY THE 2ND RESPONDENT
(ANNEXURE-F); ISSUE APPROPRIATE WRIT, ORDER OR DIRECTION IN
THE NATURE OF CERTIORARI QUASHING THE PROCEEDINGS OF THE
45TH BOARD OF MANAGEMENT MEETING OF UAS, DHARWAD DATED
25.01.2019, IN SO FOR AS ITEM NO.45.19 ISSUED BY 3RD
RESPONDENT (ANNEXURE-E); AND ISSUE APPROPRIATE WRIT,
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASHING
THE      NOTIFICATION      DATED      25.05.2021     BEARING
NO.R/RECTT/ADVT.59/2021 ISSUED BY THE 2ND RESPONDENT
(ANNEXURE-H); DECLARE THAT, THE 1ST RESPONDENT HAS NO
POWER TO ISSUE THE GOVERNMENT NOTIFICATION DATED
23.11.2018 BEARING NO.KRU.E 69 KRU.V.V.2018 BENAGALURU
(ANNEXURE-C) AND CONSEQUENTLY IT IS NOT BINDING ON THE 2ND
RESPONDENT UNIVERSITY; ISSUE APPROPRIATE WRIT, ORDER OR
DIRECTION IN THE NATURE OF MANDAMUS DIRECTING THE 2ND
RESPONDENT UNIVERSITY TO ENACT NEW QUALIFICATIONS,
ELIGIBILITY AND SCORE CARD AS PER THE PROCEDURE STIPULATED
UNDER THE STATUTES OF THE UNIVERSITY OF AGRICULTURAL
SCIENCE DHARWAD.

     THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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                                  ORDER

Petitioner No.1 is working as a Professor in the

Department of Horticulture in respondent No.2-University and

petitioner No.2 is the registered association which is established

with an object to protect the interest and welfare of the teachers

working in respondent No.2-University.

2. Respondent No.2-University issued a Notification

dated 25.05.2021 (Annexure-H) inviting applications from

eligible candidates for appointment to various posts of Officers

including the posts of Director and Dean in the University.

Petitioners' being aggrieved by the issuance of Notification dated

25.05.2021 have filed this writ petition.

3. Learned counsel for the petitioner would make the

following submissions:

a) The impugned Notification is issued in terms of the

Government Order dated 23.11.2018 at Annexure-C,

whereby the Universities are directed to adopt uniform

qualification and score card for the recruitment of Officers

in the agricultural universities in the state . He submits that

the impugned Notification is issued contrary to Clause 13 of

the statutes of the University which have been approved by

the Government.

b) The impugned government order dated 23.11.2018 at

Annexure-C has been issued without authority of law since

there is no power under the University of Agricultural

Sciences Act, 2009 (for short, 'the Act of 2009'), which

empowers the State Government to issue such a

government order.

c) Even otherwise also, the impugned Notification is issued

contrary to the government order dated 23.11.2018 since

the government order does not provide for granting

exemption to in-service candidates from possessing a

Bachelor's Degree in agricultural science.

d) Petitioner No.1 though has filed an application in pursuance

of the Notification to consider his claim for appointment to

the post of various posts of Director and Dean, the writ

petition filed by him is maintainable since the University has

not declared the result pursuant to the petitioner appearing

in the interview and as such the writ petition filed by him is

maintainable. In support of this submission, reliance is

placed on the decisions of the Apex Court in the case of Dr.

(Major) Meeta Sahai Vs. State of Bihar and Others reported

in (2019)20 SCC 17 (para 15 to 17) and in the case of

Pradeep Kumar Rai and Others Vs. Dinesh Kumar Pandey

and Others reported in (2015)11 SCC 493.

e) The Academic Council of the respondent No.2-University has

no authority to modify the score-card since the provisions of

the Act of 2009 does not provide for exercising the power to

modify the score-card.

4. On the other hand, learned counsel appearing for the

respondent-University would make the following submissions:

a) The petitioner having participated in the selection process has

no locus standi to file this writ petition. In support of this

contention, reliance is placed on the following decisions of the

Apex Court:

Madan Lal & Others Vs. State of Jammu & Kashmir reported in (1995)3 SCC 486

Dhananjay Malik & Ors. Vs. State of Uttaranchal & Others reported in (2008)4 SCC 171

Madras Institute of Development Studies and Another Vs. K.Shivasubramaniyan and Others reported (2016)1 SCC 454.

b) Section 67 of the University of Agricultural Sciences Act,

empowers the Government to issue Notification prescribing

uniform qualification for all the Officers of the University.

Hence, the impugned government order dated 23.11.2018 is

in accordance with Section 67 of the Act of 2009.

c) The impugned Government Order was passed in pursuance of

the recommendation of the common Committee of all the

Universities. Hence, the Government order dated 23.11.2018

cannot be said to be one without authority of law.

d) Though the government order dated 23.11.2018 does not

provide for exemption to in-service candidates to possess

Bachelor's Degree in Agricultural Sciences, the said

exemption is granted in pursuance of the recommendation of

the Academic Council and the same has been published in the

official gazette.

5. Learned Additional Government Advocate appearing

for the respondent-State would submits that the government

order dated 23.11.2018 is issued in conformity with the

provisions of the Universities Act. Hence, he submits that

challenge to the government order dated 23.11.2018 is not

maintainable.

6. I have considered the submissions made by the

learned counsel for the parties.

7. The points that arise for consideration in this writ

petition are as under:

I) Whether the writ petitioner having participated in

the selection process has locus standi to challenge

the impugned notification as well as the

Government Order dated 23.11.2018.

II) Whether the uniform qualification prescribed by the Government by its order dated 23.11.2018 is contrary to Clause 13 of the University statutes.

III) Whether the State Government has authority to issue the Government Order dated 23.11.2018 under the provisions of the Act of 2009.

IV) Whether, even otherwise, the impugned notification at Annexure-H issued by respondent No.2-University is in conformity with the Government Order dated 23.11.2018.

8. Point No.I: The petitioner, pursuant to the impugned

Notification submitted an application to consider his claim for

appointment to the various posts of Director/Dean in the

respondent No.2-University. During the pendency of the writ

petition, the petitioner participated in the interview conducted by

respondent-University. However, the University has not declared

the results. In this background, the point raised with regard to

locus standi of the petitioner to maintain this writ petition has to

be adjudicated in the backdrop of the following decisions of the

Apex Court.

The Apex Court in the case of Dr. (Major) Meeta Sahai's case

(supra), at paragraph 17, has held as follows:

"17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."

In Pradeep Kumar Rai and Others (supra), at paragraph 17, the

Apex Court has held as under:

"17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot

approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted. (See Vijendra Kumar Verma v. Public Service Commission [Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150 : (2011) 1 SCC (L&S) 21] and K.H. Siraj v. High Court of Kerala [K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395 : 2006 SCC (L&S) 1345] .)"

The Apex Court in the case of Madan Lal (supra), at paragraph 9

has held as follows:

"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this

petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644 : AIR 1986 SC 1043] it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."

The Apex Court in the case of Dhananjay Malik (supra), at

paragraphs 6 & 7 has held as follows:

"6. Before we proceed further we may point out at this stage that the writ petitions were rightly dismissed by the Single Judge and the Division Bench of the High Court fell in error in entertaining the appeals.

7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur

they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules."

The Apex Court in the case Madras Institute of Development

Studies and Another (supra), at paragraphs 14 & 20, has held

as follows:

"14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra."

"20. Taking into consideration the entire facts of the case and the law laid down by this Court in a catena of decisions, we are of the definite opinion that the Division Bench has committed grave error in law by passing the impugned judgment reversing the order passed by the learned Single Judge."

In the decisions relied upon by the learned counsel for the

university, the Apex Court has held that when a candidates has

participated in the selection process and the result of the

interview is not palatable to him, he cannot turn round and

subsequently contend that the process of interview was unfair or

the Selection Committee was not properly constituted.

In the decisions relied upon by the learned counsel for the

petitioners in Pradeep Kumar Rai's and Dr.(Major) Meeta Sahai's

case (supra), the Apex Court has held that the candidate by

agreeing to participate in the selection process only accepts the

prescribed procedure and not the illegality in it. It is further held

that a candidate may not have locus to assail the incurable

illegality or derogation of the provisions of the Constitution,

unless he/she participates in the selection process.

In the present case, the petitioner though submitted an

application to consider his case in pursuance of the impugned

notification, however, has not participated in the interview at the

time of filing of the writ petition, but participated in the interview

during the pendency of the writ petition and also admittedly the

result of which is not announced . Hence, Point No.I is

answered in favour of the petitioner.

9. Point No.II: Clause 13 of the statutes of respondent

No.2-University specifies that the qualification of the teachers

shall be as prescribed by the UGC/ICAR and amended from time

to time by UGC/ICAR. It further specifies that in respect of

Officers, the Vice-Chancellor shall prescribe qualifications "in

consultation with the committee constituted by him and

approved by the Board". In the present case, the qualification

prescribed under the Notification is by virtue of the government

Order dated 23.11.2018. Hence, the qualification prescribed for

appointment to the posts of Officers is not in conformity with

Clause 13 of the Statutes of the University which has got

statutory powers and as such, the qualification prescribed by the

impugned government order dated 23.11.2018 is contrary to

Clause 13 of the Statues of the University. Admittedly, no

committee was constituted by the Vice Chancellor as per letter

dated 20.10.2021 (Annexure-G).

10. Point No.III: An analysis of Section 67 of the Act of

2009 indicates that the Government is vested with the power to

constitute a Committee for Agricultural Education, Research

and Extension for the purpose of effective co-ordination in the

activities of all the Agricultural Universities in the State,

particularly in relation to teaching, research, extension

education and other matters of common interests. However,

Section 67 does vest the Government with the power to

constitute a common committee for all the Universities so as to

prescribe qualification for appointment to the posts of Officers of

the Universities. In the absence of any power to constitute a

common committee for prescribing uniform qualifications for all

the Universities for appointment to the post of Officers, the

impugned Government Order dated 23.11.2018 is one without

authority of law.

11. Point No.IV: Even assuming for a moment that the

Government has got power to issue government order dated

23.11.2018, the qualification prescribed by the Academic Council

is contrary to the Government Order dated 23.11.2018, since

the Academic Council has no power to deviate from the

qualification prescribed under the government order and Section

15 of the Act of 2009 specifies that the Academic Council has

power only to prescribe qualification for teachers and service

personnel in the University and not Officers of the University.

Hence, the impugned notification issued by respondent No.2-

University exempting in-service candidates from possessing

Bachelor's Degree in Agricultural Sciences as per the

recommendation of Council is contrary to Section 15 of the Act

of 2009. Hence, Point No.IV is answered in favour of the

petitioner and against the University.

12. In view of the preceding analysis, I am of the view

that the impugned notification issued by respondent No.2-

University in pursuance of the government order dated

23.11.2018 is one without authority of law and also the

qualification prescribed by the University on the recommendation

made by the Academic Council is held contrary to Section 15 of

the Act of 2009. Accordingly, I pass the following:

ORDER

i) The writ petition is allowed.

ii) The impugned proceedings dated 25.01.2019 passed issued by respondent No.3 insofar as item No.45.19, at Annexure-E; the impugned notification dated 15.07.2019 issued by respondent No.2 at Annexure-F; and the impugned Notification dated 25.05.2021 at Annexure-H are quashed, and it is made clear

that the government is not vested with the power to constitute a common committee for all the universities prescribing uniform qualification for appointment to the posts of Officers in the Universities in the State.

iii) Liberty is reserved with the Respondent University to issue a fresh notification in accordance with law.

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