Sri. Mallappa S/O. Shankarappa ... vs The State Of Karnataka
2022 Latest Caselaw 4093 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

       DATED THIS THE 10TH DAY OF MARCH, 2022
                      PRESENT
     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
                        AND
      THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
           W.A.No.100269/2021 [S-RES]

BETWEEN:
SRI. MALLAPPA S/O SHANKARAPPA RAMPUR,
AGE 42 YEARS,
OCC: LECTURER IN
ECONOMICS (NOW NIL)
R/O: NEAR MALLAYYA TEMPLE
BENNUR R.C. VILLAGE,
TQ AND DIST: BAGALKOT
                                        ...APPELLANT
(BY SRI.M.C.HUKKERI, ADVOCATE)

AND:

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

2.     THE COMMISSINER OF COLLEGIATE EDUCATION
       SHESHADRI ROAD,
       BENGALURU-560001.

3.     THE DIRECTOR OF COLLEGIATE EDUCATION,
       SHESHADRI ROAD,
       BENGALURU-560001.
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4.   THE JOINT DIRECTOR OF
     COLLEGIATE EDUCATION,
     DHARWAD DISTRICT AT: DC COMPOUND,
     DHARWAD-580001.

5.   THE CHAIRMAN OF
     BASAVESHWARA VEER-SHAIVA
     VIDYA VARDAKA SANGHA
     BAGALKOT-580001.

6.   THE PRINCIPAL,
     BASAVESHWARA COMMERCE COLLEGE
     BAGALKOT-587101.

7.   SMT. DR. LALITA
     D/O SHIVAPPA CHAVADI,
     AGE: 45 YEARS,
     OCC: PRINCIPAL (NOW NILL)
     R/O: BASAWESHWARA WOMEN'S P.U. COLLEGE ,
     MUDHOL, DIST: BAGALKOT.
                                     ....RESPONDENTS
(BY SRI.G.K.HIREGOUDAR, GOVT. ADVOCATE FOR R1 TO
R4; SRI. S.B.HEBBALLI, ADVOCATE FOR R5-6; R7 NOTICE
SERVED)

     THIS WRIT APPEAL IS FILED UNDER SECTION.4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO THIS
HON'BLE COURT TO, SET ASIDE THE LEARNED SINGLE
JUDGE'S   ORDER   DATED    07.02.2017   PASSED  IN
W.P.No.63562/2012   (LA-RES)   AND    CONSEQUENTLY
DISMISSED THE WRIT PETITION, IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS WRIT APPEAL COMING ON FOR ORDERS THIS
DAY, S. SUNIL DUTT YADAV J., DELIVERED THE
FOLLOWING:
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                         JUDGMENT

The appellant has questioned the validity of the

order dated 26.10.2021 passed by this Court in

W.P.No.101558/2021 (S, RES) whereby, the writ petition

filed by the petitioner came to be rejected on the ground

that the candidates who take advantage of recruitment

notification and make application for appointment would be

estopped from challenging such validity of recruitment

notification after selections have been made based on the

accepted principles of approbation and reprobation.

2. The parties are referred to as per their

rankings in the writ petition.

3. The facts made out are that the respondent-

Authority had sought for filling up of the posts of Assistant

Professor in Economics as per the Notification dated

23.02.2019 at Annexure-P. The petitioner was an aspirant

for the post of Assistant Professor in Economics, which was

mentioned at Sl.No.4 of the said notification and he being

competent, applied for the said post. The notification at

Annexure-P dated 23.02.2019 and the extract of the

relevant condition, which is a subject matter of

adjudication in the present petition, is as follows:

¤§AzsÀ£ÉUÀ¼ÀÄ

1. C¨sÀåyðUÀ¼ÀÄ ¸ÀA§zsÀ¥ÀlÖ «µÀAiÀÄzÀ°è ¸ÁßvÀPÉÆvÀÛgÀ ¥ÀzsÀ«AiÀÄ°è PÀ¤µÀ× 55% CAPÀUÀ¼À£ÀÄß ¥ÀqÉ¢gÀ¨ÉÃPÀÄ (¥Àj²µÀÖ eÁw ªÀÄvÀÄÛ ¥Àj²µÀÖ ¥ÀAUÀqÀ C¨sÀåyðUÀ½UÉ ±ÉÃPÀqÀ 50 CAPÀUÀ¼ÀÄ) ªÀÄvÀÄÛ J£ïEn - J¸ïJ¯ïEn ¥ÀjÃPÉëAiÀÄ°è GwÛtðgÁVgÀ¨ÉÃPÀÄ. ¦.JZï.r. ¥ÀzÀ«AiÀÄ£ÀÄß ¥ÀqÉ¢gÀĪÀ C¨sÀåyðUÀ½UÉ J£ïEn

- J¸ïJ¯ïEn ¥ÀjÃPÉë¬ÄAzÀ «£Á¬Äw EgÀÄvÀÛzÉ. ¦.JZï.r. ¥ÀzÀ«AiÀÄ£ÀÄß PÉƸÀð ªÀPÀð£ÉÆAUÉ ¥ÀqÉAiÀĨÉÃPÁVgÀÄvÀÛzÉ. MAzÀĪÉÃ¼É ¢£ÁAPÀ: 11.07.2009 gÀ ¥ÀƪÀðzÀ°è ¦.JZï.r ¥ÀzÀ« ¥ÀqÉ¢zÀÝ°è - ¦.JZï.r. UÉ £ÉÆAzÀt ªÀiÁr¹zÀ°è CAvÀºÀ C¨sÀåyðUÀ¼ÀÄ ¢£ÁAPÀ: 04.05.2016 gÀ AiÀÄÄ.f.¹. C¢ü¸ÀÆZÀ£ÉAiÀÄ°è ºÉÆgÀr¹gÀĪÀ ¤AiÀĪÀÄUÀ¼À£ÀÄß ¥ÀÆgÉʸÀĪÀ µÀgÀvÀÄÛUÀ½UÉ M¼À¥ÀnÖvÀÛzÉ. ¢£ÁAPÀ: 11.07.2009 £ÀAvÀgÀzÀ AiÀiÁªÀÅzÉà £ÉêÀÄPÁwUÉ JªÀiï.¦ü¯ï «zÁåºÀðvÉ ¥ÀjUÀt¸ÀvÀPÀÌzÀÝ®è.

4. It is the contention of the petitioner that he

was eligible for the post in terms of Notification dated

04.05.2016 of University Grants Commission ('UGC' for

brevity), which provides for qualifications relating to

recruitment of Assistant Professors. The relevant

Regulations of UGC are extracted herein below:-

"3.3.0 The minimum requirements of a good academic record, 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the master's level and qualifying in the National Eligibility Test (NET), or an accredited test (State Level Eligibility Test - SLET/SET), shall remain for the appointment of Assistant Professors.

3.3.1 NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions:

Provided however that candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009 or the subsequent Regulations if notified by the UGC, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/Institutions.

Further, the award of degrees to candidates registered for the M.Phil/Ph.D programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances/By laws/Regulations of the Institution awarding the degrees and the Ph.D candidates shall be exempted from the requirement of the minimum eligibility condition of "NET/SLET/SET" for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/Institutions subject to the fulfillment of the following conditions:-

(a) Ph.D. degree of the candidate awarded in regular mode only;

(b) Evaluation of the Ph.D. thesis by at least two external examiners;

(c) Candidate had published two research papers out of which at least one in a referred journal from out of his/her Ph.D. work;

(d) The candidate had presented two papers in seminars/conferences from out of his/her Ph.D. work;

(e) Open Ph.D. viva voce of the candidate had been conducted.

(a) to (e) as above are to be certified by the Vice Chancellor/Pro Vice Chancellor/Dean (Academic Affairs) / Dean (University Instructions)."

5. It is the contention of the petitioner that the

endorsement whereby the application of the petitioner

came to the rejected at Annexure-J dated 26.03.2021

observing that the petitioner had not passed Ph.D

examination in Economics or NET/SLET/SET examination,

is contrary to the UGC Regulations.

6. It is further contended that the order of

learned Single Judge is erroneous insofar as the petitioner

was entitled to challenge the recruitment Notification, if it

was contrary to the Rules and relies on the judgment of

Apex Court the case of Dr.(Major)Meeta Sahai v. State

of Bihar and Others reported in (2019) 20 SCC 17.

7. It is contended that even as per 2016

Regulations, there is relaxation regarding NET/SLET/SET

insofar as M.Phil and Ph.D candidates are concerned and in

light of such relaxation, the insistence of NET/SLET/SET is

not proper.

8. Learned Additional Government Advocate

appearing for the respondent would submit that the

Notification at Annexure-P was passed on 23.02.2019 and

the Regulations that were applicable was 2018 Regulation

of UGC i.e. UGC Regulations on Minimum Qualifications for

appointment of Teachers and Other Academic Staff in

Universities and Colleges and Measures for the

Maintenance of Standards in Higher Education, 2018.

Attention is drawn to Regulation 3.0 of '2018 Regulations'

and in particular, to Regulation 3.3, which is extracted

hereunder:-

"3.3 The National Eligibility Test (NET) or an accredited test (State Level Eligibility Test SLET/SET) shall remain the minimum eligibility for appointment of Assistant Professor and equivalent positions wherever provided in these Regulations. Further, SLET/SET shall be valid as the minimum eligibility for direct recruitment to Universities/Colleges/Institutions in the respective state only;

Provided that candidates who have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degree) Regulation, 2009, or the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degree) Regulation 2016, and their subsequent amendments from time to time, as the case may be, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or any equivalent position in any University, College or Institution.

Provided, further that the award of degree to candidates registered for the M.Phil/Ph.D. programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances / Bye-laws / Regulations of the Institutions awarding the degree. All such Ph.D. candidates shall be exempted from the requirement

of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions subject to the fulfillment of the following conditions:

a) The Ph.D. degree of the candidate has been awarded in the regular mode only;

b) The Ph.D. thesis has been awarded by at least two external examiners;

c) An open Ph.D. viva voce of the candidate has been conducted;

d) The candidate has published two research papers from his/her Ph.D. work out of which at least one is in a refereed journal;

e) The candidate has presented at least two papers, based on his/her Ph.D.

            work       in        conferences/seminars
            sponsored funded/supported by the
            UGC/ICSSR/CSIR          or    any    similar
            agency.

The fulfillment of these conditions is to be certified by the Registrar or the Dean (Academic Affairs) of the University concerned.

II. The clearing of NET/SLET/SET shall not be required for candidates in such disciplines for which NET/SLET/SET has not been conducted."

9. It is contended that as per Regulations of

2018, the relaxation insofar as NET/SLET/SET is only as

regards the candidates having done their Ph.D and this

relaxation would not apply to M.Phil candidates. It is

further submitted that it was always the intention of the

Authority not to grant relaxation insofar as M.Phil students

are concerned and this was found in the earlier

Regulations, which was the subject matter of consideration

by the Apex Court in Civil Appeal No. No.871/2018 (arising

out of SLP(C) No.2658/2013 - The State of Madhya

Pradesh & Others v. Manoj Sharma & Others and

draws attention to the observations made at paras-17 and

20.

10. It is also contended by learned Additional

Government Advocate that the petitioner having

participated in the recruitment process has after

announcement of results filed the writ petition. It is

pointed out that the results came to be announced as per

Annexure-N dated 09.12.2019 and the writ petition came

to be filed by the petitioner in April 2021.

11. It is contended that in light of the principle laid

down by the Apex Court in the case of Ashok Kumar and

Another v. State of Bihar and Others reported in

(2017) 4 SCC 357, wherein it is held that a party who

participates in the recruitment process cannot at a

subsequent stage after being unsuccessful challenge the

result by way of writ petition as it was hit by the principle

of estoppel. Accordingly, it is submitted that the writ

appeal be dismissed.

12. Heard both sides.

13. It must be noted that the rules of recruitment

prescribing the qualifications as on the date of notification,

ought to be complied, i.e. UGC Regulations of 2018. No

doubt, learned counsel for the petitioner would submit that

it is '2016 Regulations' that would be applicable, however,

we find that the stipulation regarding obtaining of

NEET/SLET/SET is identical insofar as '2016 Regulations' as

well as '2018 Regulations' are concerned.

14. Taking note that the notification was of the

year 2019, the contention of learned Additional

Government Advocate that the Regulations in force was

UGC Regulations relating to qualification in recruitment in

2018 needs to be adhered to, is to be accepted.

15. Even if the Authorities themselves were

seeking to rely on earlier Regulations as pointed out by

learned counsel for the petitioner would be of no avail and

it is '2018 Regulations' that require to be adopted as per

Regulation 3.3 of '2018 Regulations', which is reproduced

above.

16. It is clear from a bare reading of the said

provision that the relaxation as regards NEET/SLET/SET is

only as regards to Ph.D candidates and is not as regards

to M.Phil candidates. Admittedly, as on the date of

Notification, the petitioner had not passed NEET/SLET/SET,

though it is submitted that subsequently the petitioner has

passed such examination, however, what is required to be

taken note of is the qualification as on the date of

petitioner making his application.

17. No doubt, the petitioner would contend that

the endorsement is on the ground that the petitioner had

not obtained Ph.D qualification, however, considering that

the petitioner is otherwise not qualified as not having

possessed NEET/SLET/SET as on the date of filing of his

application, the question of exercising judicial review would

not arise.

18. It is also to be noticed that the Apex Court in

the case of Dr.(Major)Meeta Sahai (supra) relied on by

has clarified that the candidate, who has taken part in the

recruitment process would in fact challenge the said

process at a later point of time. However, it is clarified at

para-18 that such challenge could be made only if the

notification, pursuant to which the petitioner has

participated is contrary to the statutory rules.

19. In the present case, we find that the

notification made, if looked at keeping in mind '2018

Regulations,' the insistence of NEET/SLET/SET found in the

Notification insofar as all Post Graduate holders is in

accordance with the statutory Regulations and as the

petitioner has not obtained such qualification, as on the

relevant date the petitioner is not entitled for any relief.

20. Accordingly, we find no merit in the writ appeal

and the same is rejected.

Sd/-

JUDGE

Sd/-

JUDGE

AC/VGR